Income Tax Assessment Amendment Regulations 2009 (No. 3) (177 of 2009)

Schedule 1   Amendments

[7]   After regulation 292-170.06

insert

292-170.07 Notional taxed contributions - other conditions (paragraph 292-170 (8) (d) of the Act)

(1) For paragraph 292-170 (8) (d) of the Act, this regulation:

(a) applies to a superannuation fund if a defined benefit member of the fund is a person to whom subregulation 292-170.02 (2) applies, or is taken to apply; and

(b) sets out the conditions that are to be satisfied in relation to establishing whether the defined benefit member's notional taxed contributions for a financial year for a defined benefit interest are equal to the concessional contributions cap for the financial year.

Note Subsection 292-170 (8) of the Act explains when a member's notional taxed contributions for the financial year, in respect of a defined benefit interest, are equal to the concessional contributions cap for the financial year. This includes satisfying conditions specified in the Regulations.

(2) A condition is that the new entrant rate for the defined benefit member, as worked out using Schedule 1A:

(a) has not increased since 12 May 2009; or

(b) has increased since 12 May 2009 only as a result of a change to the rules of the superannuation fund that increases a benefit as a result of a change made to satisfy the requirements of theSuperannuation Guarantee (Administration) Act 1992.

(3) A condition is that the method of calculating superannuation salary:

(a) has not been changed, in a way that would increase the member's salary, since 12 May 2009; or

(b) has changed since 12 May 2009 only as a result of a change to the rules of the superannuation fund that increases a benefit as a result of a change made to satisfy the requirements of theSuperannuation Guarantee (Administration) Act 1992.

(4) If the rate of superannuation salary has increased, since 12 May 2009, by:

(a) more than 50% in 1 year; or

(b) more than 75% over 3 years;

a condition is that the employer-sponsor advises the trustee that the increase in the rate is on an arm's length basis.

(5) A condition is that the trustee or employer-sponsor of the superannuation fund has not exercised a discretion to pay a benefit that is greater than the benefit that was assumed for the purpose of calculating the new entrant rate since 12 May 2009.

(6) For subregulation (4), a trustee must notify the Commissioner, in writing, of an increase in the rate of superannuation salary that exceeds the rate specified in paragraph (4) (a) or (b) as soon as practicable after the increase occurs.

(7) If:

(a) a condition mentioned in subregulation (2) is not satisfied; and

(b) the condition was not satisfied only because:

(i) the defined benefit member moved to a new benefit category; and

(ii) the move was caused by the necessary application of the rules of the superannuation fund that were, or of legislation that was, in force on 5 September 2006; and

(iii) the member had no control over the application of the rules or legislation;

the failure to satisfy the condition is to be disregarded in determining if the conditions of this regulation have been satisfied for the 2009–2010 financial year and subsequent financial years.

292-170.08 Notional taxed contributions - other conditions (subparagraph 292-170 (9) (e) (ii) of the Act)

(1) For subparagraph 292-170 (9) (e) (ii) of the Act, this regulation:

(a) applies to a superannuation fund if a defined benefit member of the fund is a person to whom subregulation 292-170.02 (2) applies, or is taken to apply; and

(b) sets out the conditions that are to be satisfied in relation to establishing whether notional taxed contributions for a financial year for a defined benefit interest are equal to the concessional contributions cap for the financial year.

Note Subsection 292-170 (9) of the Act explains when a member's notional taxed contributions for the financial year, in respect of a defined benefit interest that has been transferred to another fund, are equal to the concessional contributions cap for the financial year. This includes satisfying conditions specified in the Regulations.

(2) A condition is that the new entrant rate for the defined benefit member, as worked out using Schedule 1A:

(a) has not increased since 12 May 2009; or

(b) has increased since 12 May 2009 only as a result of a change to the rules of the superannuation fund that increases a benefit as a result of a change made to satisfy the requirements of theSuperannuation Guarantee (Administration) Act 1992.

(3) A condition is that the method of calculating superannuation salary:

(a) has not been changed, in a way that would increase the salary, since 12 May 2009 or

(b) has changed since 12 May 2009 only as a result of a change to the rules of the superannuation fund that increases a benefit as a result of a change made to satisfy the requirements of theSuperannuation Guarantee (Administration) Act 1992.

(4) If the rate of superannuation salary has increased, since 12 May 2009, by:

(a) more than 50% in 1 year; or

(b) more than 75% over 3 years;

a condition is that the employer-sponsor advises the trustee that the increase in the rate is on an arm's length basis.

(5) A condition is that the trustee or employer-sponsor of the superannuation fund has not exercised a discretion to pay a benefit that is greater than the benefit that was assumed for the purpose of calculating the new entrant rate since 12 May 2009.

(6) For subregulation (4), a trustee must notify the Commissioner, in writing, of an increase in the rate of superannuation salary that exceeds the rate specified in paragraph (4) (a) or (b) as soon as practicable after the increase occurs.

(7) If:

(a) a condition mentioned in subregulation (2) is not satisfied; and

(b) the condition was not satisfied only because:

(i) the defined benefit member moved to a new benefit category; and

(ii) the move was caused by the necessary application of the rules of the superannuation fund that were, or of legislation that was, in force on 5 September 2006; and

(iii) the member had no control over the application of the rules or legislation;

the failure to satisfy the condition is to be disregarded in determining if the conditions of this regulation have been satisfied for the 2009–2010 financial year and subsequent financial years.