Income Tax Assessment (1997 Act) Regulations 2021

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-30 - SUPERANNUATION  

Division 291 - Excess concessional contributions  

Subdivision 291-C - Modifications for defined benefit interests  

SECTION 291-170.05   NOTIONAL TAXED CONTRIBUTIONS - CONDITIONS FOR PARAGRAPH 291-170(2)(D) AND SUBPARAGRAPH 291-170(3)(E)(II) OF THE INCOME TAX (TRANSITIONAL PROVISIONS) ACT 1997  

291-170.05(1)    
For the purposes of paragraph 291-170(2)(d) and subparagraph 291-170(3)(e)(ii) of the Income Tax (Transitional Provisions) Act 1997 , this section:

(a)    applies in relation to a superannuation fund to which section 291-170.02 of this instrument applies; and

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

291-170.05(2)    
A condition is that between 5 September 2006 and the time at which the new entrant rate for the defined benefit member is worked out using Schedule 1A :

(a)    the rules of any superannuation fund in which a relevant 2006 interest was held during that period have not changed to improve the member ' s benefit; and

(b)    any of the following apply:

(i) the member has not moved to a new benefit category;

(ii) the member has moved to a new benefit category but the new benefit category does not provide the member with an improved level of benefit;

(iii) the member has moved to a new benefit category but the move was only as a result of the necessary application of the rules of a superannuation fund referred to in paragraph (a) that were, or of legislation that was, in force on 5 September 2006 and the member had no control over the application of the rules or legislation.

291-170.05(3)    
A condition is that the new entrant rate for the defined benefit member, as worked out:

(a)    before 1 July 2021 - using Schedule 1A to the Income Tax Assessment Regulations 1997 ; and

(b)    on or after 1 July 2021 - using Schedule 1A to this instrument;

either:

(c)    has not increased since it was first worked out; or

(d)    has increased since it was first worked out only as a result of the following:

(i) a change to the rules of a superannuation fund in which a relevant 2006 interest is or was held that increases a benefit as a result of a change that is made to satisfy the requirements of the Superannuation Guarantee (Administration) Act 1992 ;

(ii) the member moving to a new benefit category because of the necessary application of the rules of a superannuation fund referred to in subparagraph (i) that were, or of legislation that was, in force on 5 September 2006, if the member had no control over the application of the rules or legislation.

291-170.05(4)    
A condition is that the method of calculating the defined benefit member ' s superannuation salary:

(a)    has not been changed, in a way that would increase the salary, since 5 September 2006; or

(b)    has changed since 5 September 2006 only as a result of a change to the rules of a superannuation fund in which a relevant 2006 interest is or was held that increases a benefit as a result of a change that is made to satisfy the requirements of the Superannuation Guarantee (Administration) Act 1992 .

291-170.05(5)    
A condition is that either:

(a)    the rate of the defined benefit member ' s superannuation salary has not increased, since 5 September 2006, by more than:

(i) 50% in 1 year; or

(ii) 75% over 3 years; or

(b)    the rate of superannuation salary has increased by more than the rate in subparagraph (a)(i) or (ii) and:

(i) the employer-sponsor of the superannuation fund in which, immediately after the rate increase, a relevant 2006 interest was held has advised the trustee of that fund that the increase in the rate is on an arm ' s length basis; and

(ii) the trustee of a superannuation fund in which a relevant 2006 interest was held after the rate increase notified the Commissioner, in writing, of the increase in the rate as soon as practicable after the increase occurred.

291-170.05(6)    
A condition is that no trustee or employer-sponsor of any superannuation fund in which a relevant 2006 interest is or was held has 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 5 September 2006.