Retirement Savings Accounts Regulations 1997

PART 1 - PRELIMINARY  

REGULATION 1.03   INTERPRETATION  

1.03(1)    

In these Regulations, unless the contrary intention appears:

1997 Tax Act
means the Income Tax Assessment Act 1997 .

account based pension
means a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(3D) .

"Act"
means the Retirement Savings Accounts Act 1997 ;

adjusted base amount
, in relation to a non-member spouse at a particular date, means the adjusted base amount applicable to the non-member spouse at that date worked out under Division 6.1A of the Family Law (Superannuation) Regulations 2001 .

"advance instalment of surcharge"
means the advance instalment payable under section 11 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 ;

AFCA
(short for the Australian Financial Complaints Authority) has the same meaning as in the Corporations Act 2001 .

AFCA scheme
has the same meaning as in the Corporations Act 2001 .

allocated pension
means a pension provided under the terms and conditions of an RSA that meet the standards of subregulation 1.07(2) .

allot
, for Division 4.5, means to credit an amount from an RSA holder ' s account to another account in the regulated superannuation fund held by, or created for, the receiving spouse otherwise than by transfer or roll-over.

base amount payment split
, in relation to an RSA interest, means a payment split under which a base amount is allocated to the non-member spouse in relation to the interest under Part VIIIB or VIIIC of the Family Law Act 1975 .

capital gains tax exempt component
has the same meaning as CGT exempt component in subsection 27A(1) of the Tax Act as in force immediately before 1 July 2007.

child
(Repealed by SR No 147 of 2004)

child account
(Repealed by SR No 147 of 2004)

child contributions
(Repealed by SR No 147 of 2004)

"commencement day"
, in relation to a pension, means the first day of the period to which the first payment of the pension relates;

"contributions"
, in relation to an RSA, includes:

(a) payments of shortfall components to the RSA; and

(b) payments to the RSA from the Superannuation Holding Accounts Special Account;

but does not include benefits that have been rolled over or transferred to the RSA;

"costs"
, in relation to the benefits of the holder of an RSA in the RSA as at any time, means the total costs charged to those benefits down to that time and includes:

(a) the direct costs of establishing, operating and terminating the RSA: and

(b) any administrative, insurance and taxation costs relating to the establishment, operation and termination of the RSA; and

(c) any amounts of Government co-contribution required to be repaid under section 24 of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 .

[ NOTE: Examples of " taxation costs " : contributions tax, superannuation contributions surcharge.]

eligible application
, in relation to an RSA, means:

(a) if, under section 1440 of the Corporations Act 2001 , section 51 of the Act (as in force immediately before the FSR commencement) continues to apply to the RSA - an eligible application within the meaning of section 51 of the Act; and

(b) in any other case - an eligible application within the meaning of subsection 1016A(1) of the Corporations Act 2001 .

"eligible rollover fund"
has the same meaning as in Part 24 of the SIS Act;

eligible spouse contribution
means a contribution made by an individual to a superannuation fund:

(a) to provide superannuation benefits for the individual ' s spouse, whether or not the benefits would be payable to the dependants of the individual ' s spouse if the spouse dies before or after becoming entitled to receive the benefits; and

(b) in circumstances in which the individual:

(i) could not have deducted the contribution under section 82AAC of the Tax Act in the 2006-07 income year or a previous year; and

(ii) cannot deduct the contribution under Subdivision 290-B of the 1997 Tax Act in the 2007-08 income year or a later year.

"eligible termination payment"
(Repealed by SLI No 104 of 2007)

"employer contribution"
, in relation to an RSA, means a contribution by, or on behalf of, an employer of an RSA holder;

EPSSS
means an exempt public sector superannuation scheme.

"exempt public sector superannuation scheme"
has the same meaning as in the SIS Act;

flag lifting agreement
means a flag lifting agreement within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

FSR commencement
has the same meaning as in section 1410 of the Corporations Act 2001 .

"full-time"
, in relation to being gainfully employed, means gainfully employed for at least 30 hours each week;

"gainfully employed"
means employed or self-employed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment;

growth phase
, for an RSA interest, has the meaning given by regulation 1.05A .

"industrial authority"
means:

(a) a court, or a tribunal or other body or person, constituted under a law of the Commonwealth, a State or a Territory with power of conciliation or arbitration in relation to industrial disputes; or

(b) a special board constituted under the law of a State relating to factories;

"investment earnings"
, in relation to the benefits (or to benefits of a particular kind) of an RSA holder as at any time, means the total of the amounts credited to the RSA:

(a) if the RSA is an account - by way of positive interest; or

(b) if the RSA is a policy - by way of positive investment returns or increases in the value of assets in which the policy is invested;

down to that time in respect of those benefits;

life expectancy
has the same meaning as life expectation factor in section 27H of the Tax Act.

"lost RSA holder"
has the meaning given by regulation 1.06 ;

"mandated employer contributions"
, in relation to an RSA holder, means contributions by, or on behalf of, an employer that are equal to the sum of:

(a) the contributions made by, or on behalf of, the employer to an RSA in relation to the RSA holder, that:

(i) reduce the employer ' s potential liability for the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee (Administration) Act 1992 ; or

(ii) are payments of shortfall components; and

(b) the contributions (other than contributions of the kind specified in paragraph (a)) made by, or on behalf of, the employer to the RSA in relation to the RSA holder in or towards satisfaction of the employer ' s obligation to make contributions for the RSA holder, being an obligation under an agreement certified, or an award made, on or after 1 July 1986 by an industrial authority;

"mandated employer-financed benefits"
, in relation to an RSA holder as at a particular time, means benefits equal to the sum of:

(a) the amount of the mandated employer contributions (if any) made to the RSA down to that time; and

(b) the amount of the mandated employer-financed benefits (if any) paid into the RSA down to that time; and

(c) the amount of the investment earnings on those contributions and benefits down to that time;

less the costs applicable to the amounts down to that time;

market linked pension
means a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(3A) .

"member"
has the same meaning as in the SIS Regulations;

member spouse
, in relation to an RSA interest that is subject to a payment split, means the person who is the member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interest.

non-member spouse
, in relation to an RSA interest that is subject to a payment split, means the person who is the non-member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interest.

old Regulations
means these Regulations as in force immediately before the FSR commencement.

operative time
, for a payment split, means the operative time for the purposes of Part VIIIB or VIIIC (as the case may be) of the Family Law Act 1975 for the payment split.

"part-time"
, in relation to being gainfully employed, means gainfully employed for at least 10 hours, and less than 30 hours, each week;

payment split
means a payment split within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

payment split notice
means a notice given by an RSA provider under regulation 4A.03 .

percentage payment split
, in relation to an RSA interest, means a payment split under a superannuation agreement, flag lifting agreement or splitting order that specifies a percentage that is to apply to all splittable payments in respect of the interest.

"protected RSA holder"
means an RSA holder who has withdrawal benefits, or benefits of any other type that are payable on closing the RSA otherwise than voluntarily, net of any applicable exit fee, that:

(a) are less than $1,000; and

(b) contain, or have contained, benefits that are mandated employer-financed benefits;

receiving spouse
has the meaning given by regulation 4.43 .

reporting period
means a reporting period determined in accordance with the matters mentioned in subsection 1017D(2) of the Corporations Act 2001 .

retirement phase
has the same meaning as in the 1997 Tax Act.

reviewable decision
means a decision of APRA to determine a form of consent under paragraph (b) of the definition of consent under regulation 4.30 or subregulation 4A.27(8) .

"RSA holder contributions"
, in relation to an RSA holder, means contributions by, or on behalf of, the RSA holder to the RSA, but does not include employer contributions made in respect of the RSA holder;

"RSA holder-financed benefits"
, in relation to an RSA holder as at a particular time, means benefits equal to the sum of:

(a) the amount of the RSA holder contributions (if any) made to the RSA down to that time; and

(b) the amount of the RSA holder-financed benefits (if any) paid into the RSA down to that time; and

(c) the amount of the investment earnings on those contributions and benefits down to that time;

less the costs applicable to those amounts down to that time;

"RSA holder-protection standards"
means the standards set out in subregulation 3.12(2) and regulation 3.13 ;

RSA interest
means an interest that a person has as the holder of an RSA, but does not include a reversionary interest.

"SGA Act"
means the Superannuation Guarantee (Administration) Act 1992 ;

"shortfall component"
has the same meaning as in the SGA Act;

"SIS Act"
means the Superannuation Industry (Supervision) Act 1993 ;

"SIS Regulations"
means the Superannuation Industry (Supervision) Regulations 1994 ;

splittable payment
means a splittable payment within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

splitting order
means a splitting order within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

superannuation agreement
means a superannuation agreement within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 .

"superannuation contributions surcharge"
means the superannuation contributions surcharge imposed by the Superannuation Contributions Tax Imposition Act 1997 ;

Superannuation Holding Accounts Special Account
means the Special Account established by section 8 of the Small Superannuation Accounts Act 1995 .

superannuation income stream
has the same meaning as in the 1997 Tax Act.

superannuation lump sum
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.

"Tax Act"
means the Income Tax Assessment Act 1936 ;

transferable benefits
, in relation to an RSA interest that is subject to a payment split and in relation to the non-member spouse in relation to that interest, means benefits that are equal to:

(a) if the payment split is a base amount payment split and an adjusted base amount applies to the non-member spouse when the benefits are transferred - the adjusted base amount less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(b) if the payment split is a base amount payment split and an adjusted base amount does not apply to the non-member spouse when the benefits are transferred - the base amount allocated to the non-member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001 , less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(c) if the payment split is a percentage payment split:

(i) for an entitlement in respect of an interest in the growth phase - the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001 multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(ii) for an entitlement in respect of any other interest - the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001 , multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split.

"withdrawal benefit"
, in relation to an RSA holder, means the total amount of the benefits that would be payable:

(a) to the RSA holder; and

(b) in respect of the RSA holder, to:

(i) another RSA; or

(ii) the trustee of a superannuation entity or an EPSSS; and

(c) to another person or entity because of a payment split in respect of the RSA holder ' s interest in the RSA;

if the RSA holder voluntarily ceased to be an RSA holder.

1.03(2)    

For the purposes of the definition of " protected RSA holder " in subregulation (1) , a benefit in an RSA is taken to contain or to have contained mandated employer-financed benefits unless the RSA provider knows otherwise.