Income Tax Assessment Act 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES

PART 3-30 - SUPERANNUATION

Division 310 - Loss relief for merging superannuation funds

[ CCH Note: No 158 of 2012 (as amended by No 23 of 2018 and No 49 of 2020), s 3 and Sch 1 item 19 contains the following application provision:

Application provision
19
The amendments made by this Schedule apply in relation to a transferring entity and a receiving entity if:

(a) the condition in subsection 310-10(3) , 310-15(3) or 310-20(3) of the Income Tax Assessment Act 1997 for those entities is satisfied; and

(b) all the transfer events (if any) referred to in subsection 310-45(2) of that Act for those entities happen;
on or after 1 October 2011.

Note 1:

The effect of paragraph (a) is that all of the members of the original fund will need to become members of a continuing fund during this period.

Note 2:

The effect of paragraph (b) is that the transferring fund needs to cease to hold all relevant assets during this period.

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History

S 19 amended by No 49 of 2020, s 3 and Sch 2 item 2, by substituting " on or after 1 October 2011 " for " during the period starting on 1 October 2011 and ending at the end of 1 July 2020 " , effective 1 July 2020.

S 19 amended by No 23 of 2018, s 3 and Sch 2 item 3, by substituting " 1 July 2020 " for " 1 July 2017 " , effective 1 April 2018.

]

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History

Div 310 inserted by No 19 of 2010, s 3 and Sch 2 item 1, effective 25 March 2010. No 19 of 2010 (as amended by No 147 of 2011, No 158 of 2012 and No 23 of 2018), s 3 and Sch 2 item 11 contains the following application provision:

Application provision
11(1)
The amendments made by Parts 1 and 2 of this Schedule apply in relation to a transferring entity and a receiving entity if:

(a) the condition in subsection 310-10(3) , 310-15(3) or 310-20(3) of the Income Tax Assessment Act 1997 (as amended by this Schedule) for those entities is satisfied; and

(b) all the transfer events (if any) referred to in subsection 310-45(2) of that Act for those entities happen;
during the period starting on 24 December 2008 and ending at the end of 30 June 2011, or on or after 1 October 2011.

Note 1:

The effect of paragraph (1)(a) is that, subject to subitem (2), all of the members of the original fund will need to become members of a continuing fund during the period or on or after 1 October 2011.

Note 2:

The effect of paragraph (1)(b) is that, subject to subitem (2), the transferring fund needs to cease to hold all relevant assets during the period or on or after 1 October 2011.

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History

S 11(1) amended by No 49 of 2020, s 3 and Sch 2 items 4 and 5, by substituting " on or after 1 October 2011 " for " during the period starting on 1 October 2011 and ending at the end of 1 July 2020 " and substituting " the period or on or after 1 October 2011 " for " this period " in note 1 and 2, effective 1 July 2020. For application provisions, see note under s 310-1 .

11(2)
The amendments also apply in relation to a transferring entity and a receiving entity if:

(a) the condition in subsection 310-10(3) , 310-15(3) or 310-20(3) of the Income Tax Assessment Act 1997 (as amended by this Schedule) for those entities is satisfied during the period starting on 24 December 2008 and ending at the end of 30 September 2011; and

(b) all the transfer events (if any) referred to in subsection 310-45(2) of that Act for those entities happen during the period starting on 1 July 2010 and ending at the end of 30 September 2011.

Subdivision 310-B - Choice to transfer losses

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SECTION 310-20 Original fund ' s assets include units in a pooled superannuation trust

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310-20(1)
A trustee of a *pooled superannuation trust (the transferring entity ) can choose to transfer losses if an *arrangement is made for which the conditions in this section are satisfied.

Units in the trust were held by the original fund

310-20(2)
The first condition is satisfied if, just before the *arrangement was made, units in the transferring entity were held by:

(a) a *complying superannuation fund (the original fund ); or

(b) a *complying approved deposit fund (the original fund ).

Note:

Other entities may also choose under this Subdivision to transfer losses, for the same arrangement, if the original fund holds other assets.

Original fund ' s members transfer to a continuing fund

310-20(3)
The second condition is satisfied if, under the *arrangement:

(a) the original fund ceases to have any members (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) at a particular time (the completion time ); and

(b) the individuals who cease to be members (within the meaning of that Act) of the original fund become members (within the meaning of that Act) of one or more *complying superannuation funds (the continuing funds ).

Continuing funds will usually not be able to be small funds

310-20(4)
The third condition is satisfied if either:

(a) none of the continuing funds was a *small superannuation fund, and all existed, just before the *arrangement was made; or

(b) the following subparagraphs apply:

(i) only one of the continuing funds either was a small superannuation fund, or did not exist, just before the arrangement was made;

(ii) under the arrangement, a *complying superannuation fund or *complying approved deposit fund, other than the original fund, ceases to have any members (within the meaning of the Superannuation Industry (Supervision) Act 1993 );

(iii) under the arrangement, the individuals who cease to be members (within the meaning of that Act) of that other fund become members (within the meaning of that Act) of the continuing fund;

(iv) either the other fund or the original fund was not a small superannuation fund just before the arrangement was made;

(v) the continuing fund is not a small superannuation fund just after the earliest time when both the other fund and the original fund cease to have any members (within the meaning of that Act).

Ignore members who cannot transfer to a continuing fund

310-20(5)
For the purposes of subsections (3) and (4), ignore an individual who remains a member of a *complying superannuation fund or *complying approved deposit fund because of circumstances beyond the control of the trustee of that fund.

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