ATO guidance

This page provides guidance on our view of the meaning of particular wording from the legislation.

Received an amount in respect of a member

Whether you have received an amount for a member depends on the type of payment you have received.

The following are examples of amounts considered as received in respect of members:

• Contributions, including    
  • eligible spouse contributions
  • employer contributions
  • member contributions
  • shortfall component as determined under the super guarantee legislation
  • a downsizer contribution
  • payments to the fund from the super holding accounts (SHA) special account
  • government contributions
   
• Benefits that were    
  • rolled over (paid as a super lump sum within the super system)
  • transferred (members' benefits paid out of, or received by, a regulated super fund or received from another regulated super fund otherwise than upon satisfaction by the member of a condition of release for all those benefits).
   

The following examples are not considered as amounts received in respect of members:

• Investment earnings received by the super provider – these are a return on a wide range of investments and do not relate to any specific member
• Distributions to accounts by super providers due to investment returns and profitability – these earnings are received due to fund investments and do not relate to any specific member
• Fee cap refunds.

Contact

Contact requires communication between two parties and can include:

• a phone conversation
• meeting in person
• member correspondence (written or electronic)
• verification provided electronically via the super provider’s website – for example, verifying or updating address, membership or investment details or accessing the member portal
• making a pension payment to a member’s bank account where the payment is accepted by the bank. This indicates the bank account is active and belongs to that member.

Communication with an authorised third party or representative is also deemed contact. Examples of authorised third parties include:

• financial advisors and planners
• solicitors
• holders of powers of attorney.

However, contact with employers is not deemed as contact as they are not authorised to act on the member’s behalf.

Examples of communication not deemed to be contact include:

• leaving a message on a member’s mobile that is never returned by the member
• sending out an annual statement if you are unable to verify the member actually received the statement.

If the member has reached eligibility age and you have not received an amount in respect of the member within the last two years you must make a reasonable effort to contact a member, at a minimum beginning five years after the last contact with the member. This contact attempt should be done as soon as practicable after the end of the five-year period. However, it is prudent to attempt to contact your members more frequently.

You are required to maintain evidence of your attempts to contact members. You may decide how you record these. However, the record should include sufficient details to establish the time, manner and outcome of the contact attempt.

Penalties may apply for failing to make reasonable efforts to contact a member.

Last had contact

'Last had contact’ means communication between you and a member, where you have evidence of action on the part of the member which establishes that they received the communication.

For members who have reached eligibility age, if it has been five years or more since you last had contact with the member, and the other requirements of the definition of unclaimed money have been met, you must attempt to establish contact with the member again.

If it has been five years or more since a super account was established for the benefit of an employee, and there has never been any contact between you and the member and the other requirements of unclaimed money have been met, you must attempt to establish contact with the member.

Where you are unable to establish contact with the member, the member’s account is to be paid to us as unclaimed money.

Reasonable attempts or efforts

The concept of reasonable is not defined in the SUMLMA or SULMR. What is considered reasonable depends on the facts of each case and needs to be weighed with the costs and responsibilities of the trustees.

Examples that we consider to be reasonable attempts include:

• phoning the member, or the person who established the account, using the last known telephone numbers
• writing or emailing to the member, or the person who established the account, using the last known addresses
• in the case of new applicants, contacting them upon finding information missing from their applications (for example, name, date of birth, address)
• attempted contact using any details provided by the last known employer or intermediary. However, if you have reason to believe the details were no longer valid (for example, the member has been reported as a lost member for the last 10 years and there have been no changes in the members details), this would not be considered reasonable
• checking your own records to see if the member has other accounts with more current information
• searching the internet for more current details on the member
• engaging a service like Australia Post to undertake database searches to provide more current details on the member
• contacting the sponsoring employer (particularly where employer contributions are being made on a regular basis)
• contacting any listed intermediaries
• contacting the nominated beneficiaries listed on a binding death nomination.

 

 

Reasonable period

Using current community standards about correspondence is deemed acceptable. For example, allowing 28 days for a response for correspondence within Australia.

It is an offence for you not to make reasonable efforts to ensure that a benefit is received by either the non-member spouse or their legal personal representative – see Penalties for incorrect reporting.

In the case of the death of a member, determining a ‘reasonable period’ may require consideration of:

• the period of time since the fund last had contact with the member, especially since the last time that beneficiary details were updated
• whether or not a trust estate is involved
• the likelihood of finding entitled persons such as dependants
• whether any potential beneficiaries may be overseas
• whether you have knowledge of recent family circumstances.

ATO guidance on our view of particular wording from the Superannuation (Unclaimed Money and Lost Members) Act 1999.