Taxation Laws Amendment Act (No. 4) 1994 (181 of 1994)
Schedule 3 AMENDMENTS RELATING TO SUPERANNUATION
Part 4 SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993
Division 2 Amendments relating to contraventions that are taken into account in determining 'complying superannuation fund' status
111 After subsection 42(1)
Insert:
"(1A) For the purposes of subparagraph (1)(b)(ii), an entity fails the culpability test in relation to a particular contravention of this Act or the regulations if:
(a) both:
(i) all of the members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention; and
(ii) the Commissioner, after considering:
(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of Part IX of the Income Tax Assessment Act 1936 in relation to the year of income concerned; and
(B) the seriousness of the contravention; and
(C) all other relevant circumstances;
thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned; or
(b) all of the following conditions are satisfied:
(i) one or more members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention;
(ii) one or more members of the entity (the 'innocent members') were not in any way directly or indirectly knowingly concerned in, or party to, the contravention;
(iii) none of the innocent members would suffer any substantial financial detriment if the entity were to be treated as a non-complying superannuation fund for the purposes of Part IX of the Income Tax Assessment Act 1936 in relation to the year of income concerned;
(iv) the Commissioner, after considering:
(A) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of Part IX of the Income Tax Assessment Act 1936 in relation to the year of income concerned; and
(B) the seriousness of the contravention; and
(C) all other relevant circumstances;
thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned.
"(1B) For the purposes of subsection (1A), if there is a question whether a person was in any way directly or indirectly knowingly concerned in, or party to, a particular contravention, that question may be decided on the balance of probabilities.".
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