Superannuation Legislation Amendment Act (No. 3) 1999 (121 of 1999)

Schedule 1   Amendment of the Superannuation Industry (Supervision) Act 1993 relating to self managed superannuation funds

Part 1   Regulation of self managed superannuation funds

38   After section 42

Insert:

42A Complying superannuation fund - fund that has been a self managed superannuation fund at any time during a year

Entity that was a self managed superannuation fund throughout a year of income

(1) An entity that was a self managed superannuation fund at all times during a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if:

(a) either:

(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or

(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and

(b) the entity passes the test in subsection (5) in relation to the year of income.

Entity that was a self managed superannuation fund during only part of a year of income

(2) An entity that was a self managed superannuation fund during a part or parts of a year of income is a complying superannuation fund in relation to that year of income for the purposes of this Division if:

(a) either:

(i) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence; or

(ii) the entity was a resident regulated superannuation fund at all times during the year of income when the entity was in existence other than a time, before it became a resident regulated superannuation fund, when the entity was a resident approved deposit fund; and

(b) both:

(i) the entity passes the test in subsection (5) in respect of the part or parts of the year of income during which the entity was a self managed superannuation fund; and

(ii) if the trustee contravened this Act or the regulations in relation to the entity in respect of any other part or parts of the year of income - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.

Funds coming into existence during year of income etc.

(3) An entity that:

(a) is a superannuation fund that came into existence during the year of income and at that time or later in the year of income became a self managed superannuation fund; or

(b) was a resident approved deposit fund that became a superannuation fund during the year of income;

is also a complying superannuation fund in relation to the year of income if:

(c) the entity complied with subsections 19(2) to (4):

(i) within 60 days after the day on which it came into existence or became a superannuation fund, as the case may be; or

(ii) within such further period, if any, as APRA (whether before or after the end of the period of 60 days) allows; and

(d) either of the following conditions is satisfied:

(i) the trustee did not contravene this Act or the regulations in relation to the entity during the whole of the period (the pre-lodgment period ) that began when the entity came into existence or became a superannuation fund, as the case may be, and ended when the entity complied with subsections 19(2) to (4);

(ii) the trustee contravened this Act or the regulations in relation to the entity during the pre-lodgment period on one or more occasions but the trustee satisfies APRA that, because of special circumstances that existed in relation to the fund during the pre-lodgment period, it would be reasonable for the fund to be treated as if it had satisfied this Act and the regulations; and

(e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the pre-lodgment period; and

after the pre-lodgment period:

(f) the entity passed the test in subsection (5) in respect of the part or parts of the year of income, occurring after the pre-lodgment period, during which the entity was a self managed superannuation fund; and

(g) if the trustee contravened this Act or the regulations in relation to the entity in respect of any part or parts of the year of income, occurring after the pre-lodgment period, during which the entity was not a self managed superannuation fund - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.

Trustee makes an election

(4) An entity that was a self managed superannuation fund at some time, or at all times, during a year of income is also a complying superannuation fund in relation to the year of income if:

(a) the trustee of the entity has purported to make an election under subsection 19(4); and

(b) if, when the election was made, the requirements of subsections 19(2) to (4) are not complied with:

(i) the requirements of subsections 19(2) to (4) (to the extent that they have not already been complied with) are complied with within 28 days after the trustee finds out (whether by written notice from APRA or otherwise) that they were not complied with, or within such further period, if any, as APRA (whether before or after the end of the period of 28 days) allows; and

(ii) except where the trustee received written notice from APRA about the non-compliance - the trustee tells APRA in writing of the compliance within 7 days after the requirements are complied with or within such further period, if any, as APRA (whether before or after the end of the period of 7 days) allows; and

(c) either of the following conditions is satisfied:

(i) the trustee did not contravene this Act or the regulations in relation to the entity during the whole of the period (the rectification period ) that began when the trustee of the entity lodged the purported election under subsection 19(4) and ended when the entity complied with subsections 19(2) to (4);

(ii) the trustee contravened this Act or the regulations in relation to the entity during the rectification period on one or more occasions but the trustee satisfies the APRA that, because of special circumstances that existed in relation to the fund during the rectification period, it would be reasonable for the fund to be treated as if it had satisfied this Act and the regulations; and

(d) if the fund was in existence before the beginning of its 1994-95 year of income - under regulations made for the purposes of section 50, the fund is treated as if it had satisfied the transitional superannuation fund conditions at all times during the period that began at the beginning of the funds' 1994-95 year of income and ended when the trustee of the entity lodged the purported election under subsection 19(4); and

(e) the entity was a resident regulated superannuation fund at all times during the part of the year of income occurring after the end of the rectification period; and

(f) in respect of the part of the year of income occurring after the end of the rectification period, both:

(i) the entity passed the test in subsection (5) in respect of the part or parts of the year of income occurring after the end of the rectification period, during which the entity was a self managed superannuation fund; and

(ii) if the trustee contravened this Act or the regulations in relation to the entity in respect of any other part or parts of the year of income occurring after the end of the rectification period, during which the entity was not a self managed superannuation fund - the entity did not fail the culpability test set out in subsection 42(1A) in relation to any of those contraventions.

Circumstances in which entity passes the test in this subsection

(5) An entity passes the test in this subsection in relation to a year of income or part of a year of income if:

(a) the trustee did not contravene this Act or the regulations in relation to the entity during the year of income or the part of the year of income; or

(b) if the trustee contravened this Act or the regulations in relation to the entity during the year of income or the part of the year of income, the Regulator, after considering:

(i) 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

(ii) the seriousness of the contravention; and

(iii) all other relevant circumstances;

thinks that a notice should nevertheless be given stating that the entity is a complying superannuation fund in relation to the year of income concerned.

Determining whether contravention

(6) In determining for the purposes of this section whether the Act or the regulations were contravened in respect of the entity in respect of the pre-lodgment period or the rectification period, this Act and the regulations are taken to have applied in relation to the entity in respect of that period as if the entity were a resident regulated superannuation fund during that period.

References to APRA

(7) If a person or body is specified in the regulations for the purposes of subsection 19(4), a reference to APRA in subparagraph (3)(c)(ii), (3)(d)(ii), or subsection (4) is taken to be a reference to that person or body.