Pt 5A repealed by SLI No 89 of 2007, reg 3 and Sch 1 item 4, effective 1 July 2007.

Pt 5A inserted by SR No 461 of 1994.

Div 1 repealed by SLI No 89 of 2007, reg 3 and Sch 1 item 4, effective 1 July 2007.

Reg 47 repealed by SLI No 89 of 2007, reg 3 and Sch 1 item 4, effective 1 July 2007. Reg 47 formerly read:

REGULATION 47 INTERPRETATION  
47(1)
In this Part, unless the contrary intention appears:

"HAS"
, in relation to a person, subject to regulation 49 , means the highest average annual salary of the person over any 3 consecutive financial years (including a financial year in which the person did not earn salary for the whole of the year) before the 1994-1995 financial year;

"HAS-based lump sum RBL"
, in relation to a person, means the amount worked out by multiplying the amount of the person ' s HAS by the amount of the person ' s lump sum reasonable benefit multiple;

"HAS-based pension RBL"
, in relation to a person, means the amount worked out by multiplying the amount of the person ' s HAS by the amount of the person ' s pension reasonable benefit multiple;

"lump sum reasonable benefit multiple"
, in relation to a person who is applying for a transitional RBL, subject to subregulation (2), means:

(a) if the eligible service period in relation to the ETP, pension or annuity commenced on or after 1 July 1990 - the number obtained by dividing the sum of:

(i) 7 times $46,640 or, if the person ' s HAS is less than $46,640, 7 times the person ' s HAS; and

(ii) 5 times the part (if any) of the person ' s HAS that exceeds $46,640 but does not exceed $86,610; and

(iii) 3 times the part (if any) of the person ' s HAS that exceeds $86,610;

by the person ' s HAS; or

(b) in any other case - the number worked out using the formula:

(OLD SP   ×   OLD RBM)   +   (NEW SP   ×   NEW RBM)

where:

" OLD SP " means the number worked out by dividing the number of days in the relevant eligible service period that occurred before 1 July 1990 by the total number of days in the relevant eligible service period; and

" OLD RBM " means the multiple applicable to the benefit under Schedule 2A ; and

" NEW SP " means the number worked out by dividing the number of days in the relevant eligible service period that occurred on or after 1 July 1990 by the total number of days in the relevant eligible service period; and

" NEW RBM " means the number that would be the person ' s lump sum reasonable benefit multiple if the relevant eligible service period had commenced on or after 1 July 1990;

"net business income"
, in relation to a business the gross income of which in respect of a financial year exceeds all deductions for that year with respect to the business that are allowable deductions for the purposes of the Act (other than any deductions allowable under section 82AAC or 82AAT , or Division 16C of Part III , of the Act), means the amount of that excess;

"net business losses"
, in relation to a business where all deductions for the financial year commencing on 1 July 1990 or a later financial year with respect to the business that are allowable deductions for the purposes of the Act (other than any deductions allowable under section 82AAC or 82AAT , or Division 16C of Part III , of the Act) exceed the gross income of the business in respect of that year, means the amount of that excess;

"pension reasonable benefit multiple"
, in relation to a person who is applying for a transitional RBL, subject to subregulation (2), means:

(a) if the eligible service period in relation to the benefit commenced on or after 1 July 1990 - the number worked out using the formula:

M     HAS

×   15

where:

" M " means the sum of:

(i) 0.75 times $46,640 or, if the person ' s HAS is less than $46,640, 0.75 times the person ' s HAS; and

(ii) 0.55 times the part (if any) of the person ' s HAS that exceeds $46,640 but does not exceed $86,610; and

(iii) 0.35 times the part (if any) of the person ' s HAS that exceeds $86,610; or

(b) in any other case - the number worked out using the formula:

(OLD SP   ×   OLD RBM)   +   (NEW SP   ×   NEW RBM)

where:

" OLD SP " means the number worked out by dividing the number of days in the relevant eligible service period that occurred before 1 July 1990 by the total number of days in the relevant eligible service period; and

" OLD RBM " means the multiple applicable to the benefit under Schedule 2A ; and

" NEW SP " means the number worked out by dividing the number of days in the relevant eligible service period that occurred on or after 1 July 1990 by the total number of days in the relevant eligible service period; and

" NEW RBM " means the number that would be the person ' s pension reasonable benefit multiple if the relevant eligible service period commenced on or after 1 July 1990;

" salary " , subject to subregulations (3) and (4), means salary, wages, commissions, bonuses, fees, allowances or gratuities paid to a person during a financial year, and includes:

(a) subject to paragraph (k), other earnings; and

(b) the amount that would be the value of a benefit to which section 57 , 57A or 58 of the Fringe Benefits Tax Assessment Act 1986 applies if that benefit were not an exempt benefit; and

(c) a payment made by a company by way of remuneration to a director of the company; and

(d) in the case of a person who is an Australian citizen, or a resident of Australia - any amounts paid to the person from a source outside Australia that would fall within this definition if they had been paid from a source in Australia;

but does not include:

(e) a distribution from a trust estate; or

(f) allowances to cover expenses incurred on behalf of the person ' s employer or business; or

(g) any ETP; or

(h) a superannuation pension or an annuity; or

(j) a payment to which section 26AC or 26AD of the Act applies; or

(k) earnings on investments;

"vested superannuation benefits"
has the meaning given by subregulation (5).

47(2)
For the purposes of the definitions of " lump sum reasonable benefit multiple " and " pension reasonable benefit multiple " , if a person has more than 1 benefit entitlement, the person ' s relevant eligible service period for transitional RBL purposes is taken to have started on the earliest date of the longest eligible service period in relation to the person ' s benefit entitlements.

47(3)
For the purposes of the definition of " salary " in subregulation (1):

(a) amounts to which paragraph (d) of that definition applies are to be converted into Australian currency at the rate that is the average of the exchange rates for the currency in which the foreign source amounts were paid at the start, and at the end, of the financial year in which the amounts were paid; and

(b) if a person carries on a business (either alone or in partnership with another person):

(i) the person ' s salary is to be increased by the person ' s share of the net business income; or

(ii) the person ' s salary is to be decreased by the person ' s share of the net business losses; and

(c) if:

(i) a person is an associate of the person ' s employer; and

(ii) the person ' s salary is greater or lesser than the amount (in this paragraph called the " arm ' s length salary " ) that would, in the opinion of the Commissioner, acting in accordance with subregulation (4), be the person ' s salary if the person had not been an associate of the employer;

the person ' s salary for the purposes of this Part is taken to be the arm ' s length salary.

47(4)
In determining the arm ' s length salary under subregulation (3), the Commissioner is to have regard to:

(a) the nature of the work performed; and

(b) the hours worked; and

(c) the salary that would be payable to a person who is not an associate of the employer for performing similar work for similar hours; and

(d) any other relevant matters.

47(5)
Subject to subregulation (6), the amount of vested superannuation benefits in relation to a person is the sum of:

Lump sum benefit in a superannuation fund or an ADF

(a) if the person has a benefit entitlement, in the form of a lump sum, in a superannuation fund or an ADF - the greatest of the following amounts:

(i) the RBL amount (worked out under section 140ZH of the Act) of the person ' s accumulated benefit on 30 June 1994;

(ii) the RBL amount (worked out under that section) of the benefit payable to the person if he or she resigned on 30 June 1994;

(iii) the RBL amount (worked out under that section) of the benefit payable to the person if he or she became redundant on that date;

Deferred annuity held by a life assurance company or registered organisation

(b) if the person has a benefit entitlement, in the form of a deferred annuity, in a life assurance company or a registered organisation - the RBL amount (calculated under section 140ZI of the Act) of the benefit payable to the person if he or she commuted the entitlement on 30 June 1994;

Lump sum benefit payable under a contract of employment

(c) if the person has a benefit entitlement, in the form of a lump sum, payable under a contract of employment - the greater of the following amounts:

(i) the RBL amount (worked out under section 140ZJ of the Act) of the benefit payable to the person under the contract if he or she resigned on 30 June 1994;

(ii) the RBL amount (worked out under that section) of the benefit payable to the person under the contract if he or she became redundant on that date;

Pension benefit in a superannuation fund

(d) if the person has a benefit entitlement, in the form of a pension that has not become payable, in a superannuation fund - the greatest of the following amounts:

(i) the RBL amount (worked out under section 140ZK of the Act) of the amount of the person ' s accumulated benefit on 30 June 1994;

(ii) the RBL amount (worked out under that section) of the capital value of the benefit payable to the person if he or she resigned on 30 June 1994;

(iii) the RBL amount (worked out under that section) of the capital value of the benefit payable to the person if he or she became redundant on that date.

47(6)
For the purposes of subregulation (5), there must be added to an amount worked out in accordance with that subregulation in relation to a person the sum of adjusted RBL amounts of previous benefits in relation to the person, where that sum is worked out:

(a) in accordance with subsection 140ZA(4) of the Act; and

(b) on the basis that, in using the formula in the subsection to work out the portion, the " second-last quarter " in the formula is the quarter ending on 30 June 1994; and

(c) on the basis that subsection 140ZA(5) of the Act does not apply.

47(7)
Unless the contrary intention appears, a term defined in section 140C of the Act and not defined in this regulation has the same meaning in this Part as it has, under that section, in Division 14 of Part III of the Act.

Reg 47 inserted by SR No 461 of 1994.