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This is a Bill, not an Act. For current law, see the Acts databases.
SUPERANNUATION LEGISLATION AMENDMENT BILL 2010
2008-2009-2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Superannuation Legislation Amendment
Bill 2010
No. , 2010
(Treasury)
A Bill for an Act to amend the law relating to
superannuation, and for related purposes
i Superannuation Legislation Amendment Bill 2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
3
4
Amendment of assessments ............................................................... 3
Schedule 1--Unclaimed money
4
Part 1--Amendment of the Superannuation (Unclaimed
Money and Lost Members) Act 1999
4
Part 2--Amendment of the Income Tax Assessment Act 1997
11
Part 3--Application provision
13
Schedule 2--Disability insurance premiums paid by
superannuation funds
14
Part 1--2004-05 to 2006-07 income years
14
Part 2--2007-08 to 2010-11 income years
16
Division 1--Main amendments
16
Income Tax Assessment Act 1997
16
Income Tax (Transitional Provisions) Act 1997
16
Division 2--Sunsetting on 1 January 2017
18
Income Tax Assessment Act 1997
18
Income Tax (Transitional Provisions) Act 1997
18
Schedule 3--Superanuation and relationship breakdowns
19
Superannuation Industry (Supervision) Act 1993
19
Schedule 4--Other amendments
23
Part 1--Notices of intent to deduct
23
Income Tax Assessment Act 1997
23
Tax Laws Amendment (2009 Measures No. 6) Act 2010
28
Part 2--Employer contributions
29
Income Tax Assessment Act 1997
29
Part 3--Shortfall interest charge
32
Taxation Administration Act 1953
32
Superannuation Legislation Amendment Bill 2010 No. , 2010 ii
Part 4--Excess contributions tax
33
Income Tax Assessment Act 1997
33
Part 5--Public sector defined benefit schemes
34
Income Tax Assessment Act 1997
34
Part 6--Amendment of the Superannuation (Unclaimed
Money and Lost Members) Act 1999
35
Part 7--Application and transitional provisions
36
Superannuation Legislation Amendment Bill 2010 No. , 2010 1
A Bill for an Act to amend the law relating to
1
superannuation, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Superannuation Legislation
5
Amendment Act 2010.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Superannuation Legislation Amendment Bill 2010 No. , 2010
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 4
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2,
items 1 to 5
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
4. Schedule 2,
items 6 and 7
1 January 2017.
1 January 2017
5. Schedule 3
The day after this Act receives the Royal
Assent.
6. Schedule 4,
Parts 1 and 2
The day after this Act receives the Royal
Assent.
7. Schedule 4,
item 25
The day this Act receives the Royal Assent.
8. Schedule 4,
item 26
The later of:
(a) immediately after the start of the day this
Act receives the Royal Assent; and
(b) the commencement of item 3 of
Schedule 1 to the Tax Laws Amendment
(Transfer of Provisions) Act 2010.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
9. Schedule 4,
Parts 4 to 7
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
Superannuation Legislation Amendment Bill 2010 No. , 2010 3
(2) Column 3 of the table contains additional information that is not
1
part of this Act. Information in this column may be added to or
2
edited in any published version of this Act.
3
3 Schedule(s)
4
Each Act that is specified in a Schedule to this Act is amended or
5
repealed as set out in the applicable items in the Schedule
6
concerned, and any other item in a Schedule to this Act has effect
7
according to its terms.
8
4 Amendment of assessments
9
Section 170 of the Income Tax Assessment Act 1936 does not
10
prevent the amendment of an assessment if:
11
(a) the assessment was made before the commencement of
12
item 1 of Schedule 2 to this Act; and
13
(b) the amendment is made within 2 years after that
14
commencement; and
15
(c) the amendment is made for the purpose of giving effect to
16
that item.
17
18
Schedule 1 Unclaimed money
Part 1 Amendment of the Superannuation (Unclaimed Money and Lost Members) Act
1999
4 Superannuation Legislation Amendment Bill 2010 No. , 2010
Schedule 1--Unclaimed money
1
Part 1--Amendment of the Superannuation
2
(Unclaimed Money and Lost Members) Act
3
1999
4
1 Section 7
5
Omit "consistent with this Act, superannuation providers must",
6
substitute "consistent with this Act, superannuation providers that are
7
trustees of public sector superannuation schemes may".
8
2 At the end of section 7
9
Add:
10
Prescribed public sector superannuation schemes
11
The trustees of certain public sector superannuation schemes may
12
comply with this Act in the same way as superannuation providers.
13
3 Section 8
14
Insert:
15
Commonwealth public sector superannuation scheme means a
16
scheme for the payment of superannuation, retirement or death
17
benefits, where the scheme is established:
18
(a) by or under a law of the Commonwealth; or
19
(b) under the authority of:
20
(i) the Commonwealth; or
21
(ii) a municipal corporation, another local governing body
22
or a public authority constituted by or under a law of the
23
Commonwealth.
24
4 Section 8 (definition of public sector superannuation
25
scheme)
26
Repeal the definition, substitute:
27
public sector superannuation scheme has the same meaning as in
28
the SIS Act.
29
Unclaimed money Schedule 1
Amendment of the Superannuation (Unclaimed Money and Lost Members) Act 1999
Part 1
Superannuation Legislation Amendment Bill 2010 No. , 2010 5
5 Section 8
1
Insert:
2
State or Territory public sector superannuation scheme has the
3
meaning given by subsection 18(7).
4
6 Section 8
5
Insert:
6
unfunded public sector scheme has the meaning given by the
7
Superannuation Guarantee (Administration) Act 1992.
8
7 After section 18
9
Insert:
10
18AA Prescribed public sector superannuation schemes
11
(1) Sections 6, 10 to 12, 14, 16 to 17 and 18A to 18C and subsections
12
19(1) to (3), 24C(6), 24E(5) and 25(2) apply as if:
13
(a) a public sector superannuation scheme that is:
14
(i) prescribed for the purposes of this section; and
15
(ii) not a fund;
16
were a fund; and
17
Note 1: The regulations may prescribe a scheme by reference to a class of
18
schemes: see subsection 13(3) of the Legislative Instruments Act
19
2003.
20
Note 2: The trustee of a State or Territory public sector superannuation
21
scheme that is a fund must comply with this Part, subject to
22
section 18.
23
(b) the trustee of the scheme were the superannuation provider;
24
and
25
(c) a member of the scheme were a member of the fund.
26
(2) Despite subsection (1), in the case of a State or Territory public
27
sector superannuation scheme:
28
(a) section 16 (Statement of unclaimed money):
29
(i) permits, rather than requires, the trustee to give a
30
statement to the Commissioner; and
31
(ii) does not permit the trustee to give a statement to the
32
Commissioner if the governing rules of the scheme
33
Schedule 1 Unclaimed money
Part 1 Amendment of the Superannuation (Unclaimed Money and Lost Members) Act
1999
6 Superannuation Legislation Amendment Bill 2010 No. , 2010
prohibit the trustee from giving the statement to the
1
Commissioner; and
2
(b) section 17 (Payment of unclaimed money):
3
(i) does not apply in relation to an unclaimed money day if
4
the trustee does not give a statement in relation to the
5
unclaimed money day to the Commissioner under
6
subsection 16(1); and
7
(ii) permits, rather than requires, the trustee to pay an
8
amount to the Commissioner; and
9
(iii) does not apply to an amount to the extent that the
10
governing rules of the scheme prohibit the trustee from
11
paying the amount to the Commissioner.
12
Note:
The heading to section 18 is replaced by the heading "State or Territory public sector
13
superannuation schemes".
14
8 Subsection 20C(3)
15
Repeal the subsection, substitute:
16
(3) Subsection (1) does not apply if:
17
(a) the superannuation provider is:
18
(i) the trustee of a State or Territory public sector
19
superannuation scheme; or
20
(ii) the superannuation provider for an unfunded public
21
sector scheme; and
22
(b) the scheme is not prescribed for the purposes of
23
section 20JA.
24
9 After section 20J
25
Insert:
26
20JA Prescribed public sector superannuation schemes
27
(1) Section 6, subsections 16(7), 17(2A) and 19(1) and (3), this Part
28
(other than subsections 20F(5) and (6)) and subsections 24C(6),
29
24E(5) and 25(2A) apply as if:
30
(a) a public sector superannuation scheme that:
31
(i) is prescribed for the purposes of this section; and
32
(ii) in the case of a Commonwealth public sector
33
superannuation scheme--is not a fund, or is an
34
unfunded public sector scheme;
35
Unclaimed money Schedule 1
Amendment of the Superannuation (Unclaimed Money and Lost Members) Act 1999
Part 1
Superannuation Legislation Amendment Bill 2010 No. , 2010 7
were a fund; and
1
Note 1: The regulations may prescribe a scheme by reference to a class of
2
schemes: see subsection 13(3) of the Legislative Instruments Act
3
2003.
4
Note 2: This Part applies to a Commonwealth public sector
5
superannuation scheme that is not an unfunded public sector
6
scheme whether or not the scheme is prescribed: see section 20C.
7
(b) the trustee of the scheme were the superannuation provider;
8
and
9
(c) a person who has an interest in the scheme had a
10
superannuation interest in the fund.
11
(2) Despite subsection (1), in the case of a State or Territory public
12
sector superannuation scheme:
13
(a) section 20C (notices about certain former temporary
14
residents) permits, rather than requires, the Commissioner to
15
give a notice to the trustee; and
16
(b) section 20E (statement):
17
(i) permits, rather than requires, the trustee to give a
18
statement to the Commissioner; and
19
(ii) does not permit the trustee to give a statement to the
20
Commissioner if the governing rules of the scheme
21
prohibit the trustee from giving the statement to the
22
Commissioner; and
23
(c) section 20F (payment of unclaimed superannuation):
24
(i) does not apply in relation to a notice given to the trustee
25
under section 20C if the trustee does not give a
26
statement in relation to the notice to the Commissioner
27
under section 20E; and
28
(ii) permits, rather than requires, the trustee to pay an
29
amount to the Commissioner; and
30
(iii) does not apply to an amount to the extent that the
31
governing rules of the scheme prohibit the trustee from
32
paying the amount to the Commissioner.
33
10 Subsection 24C(1) (note 1)
34
Omit "section 24H", substitute "sections 24H and 24HA".
35
11 Subsection 24E(1) (note 1)
36
Omit "section 24H", substitute "sections 24H and 24HA".
37
Schedule 1 Unclaimed money
Part 1 Amendment of the Superannuation (Unclaimed Money and Lost Members) Act
1999
8 Superannuation Legislation Amendment Bill 2010 No. , 2010
12 Section 24H
1
Omit "Sections", substitute "Subject to section 24HA, sections".
2
Note:
The heading to section 24H is replaced by the heading "State or Territory public
3
sector superannuation schemes".
4
13 After section 24H
5
Insert:
6
24HA Prescribed public sector superannuation schemes
7
(1) Section 6, subsections 19(1) to (3), this Part (other than
8
sections 24F and 24H) and subsections 25(3) and (4) apply as if:
9
(a) a public sector superannuation scheme that:
10
(i) is prescribed for the purposes of this section; and
11
(ii) in the case of a Commonwealth public sector
12
superannuation scheme--is not a fund;
13
were a fund; and
14
Note:
The regulations may prescribe a scheme by reference to a class of
15
schemes: see subsection 13(3) of the Legislative Instruments Act
16
2003.
17
(b) the trustee of the scheme were the superannuation provider;
18
and
19
(c) a member of the scheme were a member of the fund.
20
(2) Despite subsection (1), in the case of a State or Territory public
21
sector superannuation scheme:
22
(a) section 24C (Statement of lost member accounts):
23
(i) permits, rather than requires, the trustee to give a
24
statement to the Commissioner; and
25
(ii) does not permit the trustee to give a statement to the
26
Commissioner if the governing rules of the scheme
27
prohibit the trustee from giving the statement to the
28
Commissioner; and
29
(b) section 24E (Payment in respect of lost member accounts):
30
(i) does not apply in relation to an unclaimed money day if
31
the trustee does not give a statement in relation to the
32
unclaimed money day to the Commissioner under
33
section 24C; and
34
(ii) permits, rather than requires, the trustee to pay an
35
amount to the Commissioner; and
36
Unclaimed money Schedule 1
Amendment of the Superannuation (Unclaimed Money and Lost Members) Act 1999
Part 1
Superannuation Legislation Amendment Bill 2010 No. , 2010 9
(iii) does not apply to an amount to the extent that the
1
governing rules of the scheme prohibit the trustee from
2
paying the amount to the Commissioner.
3
(3) Subparagraphs (2)(a)(i) and (b)(ii) do not apply in relation to an
4
unclaimed money day if, disregarding this section:
5
(a) the public sector superannuation scheme is a fund; and
6
(b) the superannuation provider has to comply with subsections
7
16(1) and 17(1) in relation to the unclaimed money day.
8
14 After section 49
9
Insert:
10
49A Money transferred to State or Territory authorities
11
(1) This section applies if:
12
(a) a person was a member of a fund, or a superannuation fund,
13
(the original fund); and
14
(b) the superannuation provider of the fund, or the trustee of the
15
superannuation fund, (the original provider) transferred an
16
interest of the member in the original fund to a State or
17
Territory authority; and
18
Example: The law of the State or Territory required the original provider to
19
transfer unclaimed money of the member to the State or Territory
20
authority.
21
(c) a State or Territory authority (the currently responsible
22
authority) (whether or not the State or Territory authority
23
mentioned in paragraph (b)) would be required, under:
24
(i) the governing rules of the original fund; or
25
(ii) the law of the State or Territory;
26
to make a payment to or in respect of the member in
27
circumstances in which, before the transfer, the original
28
provider would have been required to make a payment to or
29
in respect of the member.
30
Example: A requirement to pay unclaimed money to a member who claims
31
it.
32
(2) Section 18AA and, in the case of a State or Territory public sector
33
superannuation scheme, sections 20JA and 24HA, apply as if:
34
(a) the currently responsible authority were the trustee of a State
35
or Territory public sector superannuation scheme; and
36
Schedule 1 Unclaimed money
Part 1 Amendment of the Superannuation (Unclaimed Money and Lost Members) Act
1999
10 Superannuation Legislation Amendment Bill 2010 No. , 2010
(b) the scheme were:
1
(i) prescribed for the purposes of those sections; and
2
(ii) not a fund; and
3
(c) the member of the original fund were a member of the
4
scheme; and
5
(d) anything done by, to or in relation to the original provider in
6
relation to the original fund had been done by, to or in
7
relation to the currently responsible authority in relation to
8
the scheme; and
9
(e) a reference in those sections to the governing rules of the
10
original fund were a reference to the laws of the State or
11
Territory.
12
13
Unclaimed money Schedule 1
Amendment of the Income Tax Assessment Act 1997 Part 2
Superannuation Legislation Amendment Bill 2010 No. , 2010 11
Part 2--Amendment of the Income Tax Assessment
1
Act 1997
2
15 Section 306-20
3
After "Superannuation (Unclaimed Money and Lost Members) Act
4
1999", insert ", or because it is paid as mentioned in subsection 18(4) of
5
that Act,".
6
16 Subsection 307-5(1) (table item 5)
7
Repeal the item, substitute:
8
5
unclaimed
money payment
A payment to you:
(a) under subsection
17(1) or (2) or
20F(1) or
section 20H, 24E
or 24G of the
Superannuation
(Unclaimed
Money and Lost
Members) Act
1999; or
(b) as mentioned in
subsection 18(4)
or (5) of that Act;
otherwise than
because of another
person's death.
A payment to you:
(a) under subsection 17(1) or
(2) or section 20H or 24G
of the Superannuation
(Unclaimed Money and
Lost Members) Act 1999; or
(b) as mentioned in subsection
18(4) or (5) of that Act;
because of another person's
death.
17 Subsection 307-142(1)
9
After "Superannuation (Unclaimed Money and Lost Members) Act
10
1999", insert ", or by a State or Territory authority as mentioned in
11
subsection 18(5) of that Act,".
12
18 Subsection 307-142(3) (cell at table item 1, column 1)
13
Repeal the cell, substitute:
14
an amount paid, on or after
1 July 2007, to:
(a) the Commissioner under
subsection 17(1) of the
Superannuation (Unclaimed
Money and Lost Members)
Schedule 1 Unclaimed money
Part 2 Amendment of the Income Tax Assessment Act 1997
12 Superannuation Legislation Amendment Bill 2010 No. , 2010
Act 1999; or
(b) a State or Territory
authority, as mentioned in
subsection 18(4) of that Act;
in respect of the person
19 Subsection 307-142(3) (cell at table item 2, column 1)
1
Repeal the cell, substitute:
2
an amount paid, before 1 July
2007, to:
(a) the Commissioner under
subsection 17(1) of the
Superannuation (Unclaimed
Money and Lost Members)
Act 1999; or
(b) a State or Territory
authority, as mentioned in
subsection 18(4) of that Act;
in respect of the person
20 After subsection 307-142(3)
3
Insert:
4
(3A) Treat the amount set out in column 3 of an item of the table in
5
subsection (3) as being nil, if:
6
(a) the unclaimed amount set out in column 1 of the item is an
7
amount paid to the Commissioner by a State or Territory
8
authority (within the meaning of the Superannuation
9
(Unclaimed Money and Lost Members) Act 1999) in the
10
circumstances mentioned in section 18AA, 20JA or 24HA of
11
that Act; and
12
(b) the Commissioner does not have sufficient information to
13
work out the amount set out in column 3 of the item.
14
15
Unclaimed money Schedule 1
Application provision Part 3
Superannuation Legislation Amendment Bill 2010 No. , 2010 13
Part 3--Application provision
1
21 Application provision
2
(1)
Subparagraph 49A(1)(b)(i) of the Superannuation (Unclaimed Money
3
and Lost Members) Act 1999, inserted by this Schedule, applies to
4
transfers occurring before, on or after the commencement of this item.
5
(2)
The amendments of section 307-142 of the Income Tax Assessment Act
6
1997 made by this Schedule apply in relation to payments made on or
7
after the commencement of this item.
8
9
Schedule 2 Disability insurance premiums paid by superannuation funds
Part 1 2004-05 to 2006-07 income years
14 Superannuation Legislation Amendment Bill 2010 No. , 2010
Schedule 2--Disability insurance premiums
1
paid by superannuation funds
2
Part 1--2004-05 to 2006-07 income years
3
1 Complying funds--deductions for insurance premiums for
4
disability benefits
5
Scope
6
(1)
This item applies if:
7
(a) the trustee of a complying superannuation fund pays a
8
premium for an insurance policy during:
9
(i) the 2004-05 income year; or
10
(ii) the 2005-06 income year; or
11
(iii) the 2006-07 income year; and
12
(b) the policy is (wholly or partly) for current or contingent
13
liabilities of the fund to provide benefits for members of the
14
fund (whether the policy covers the whole or parts of the
15
liabilities).
16
Note:
For premiums paid during the 2007-08 to 2010-11 income years, see section 295-466 of
17
the Income Tax (Transitional Provisions) Act 1997.
18
Entitlement to deduction
19
(2)
Treat the benefits mentioned in paragraph (1)(b) as being death or
20
disability benefits, in relation to the members mentioned in that
21
paragraph, to the extent that:
22
(a) the benefits are conditional on the disability of the members;
23
and
24
(b) the disability is described as a permanent disability in
25
regulations made for the purposes of section 295-466 of the
26
Income Tax (Transitional Provisions) Act 1997.
27
Note:
Other events might have to occur after the event of the disability of the members before
28
the fund pays the benefits to the members. For example, the members might have to
29
satisfy a condition of release of benefits specified in a standard made under paragraph
30
31(2)(h) of the Superannuation Industry (Supervision) Act 1993, such as by reaching a
31
certain age.
32
(3)
Subitem (2) applies:
33
Disability insurance premiums paid by superannuation funds Schedule 2
2004-05 to 2006-07 income years Part 1
Superannuation Legislation Amendment Bill 2010 No. , 2010 15
(a) for the purposes of applying former subsection 279(1) of the
1
Income Tax Assessment Act 1936 to the payment mentioned
2
in paragraph (1)(a) of this item; and
3
(b) without limiting that former subsection.
4
5
Schedule 2 Disability insurance premiums paid by superannuation funds
Part 2 2007-08 to 2010-11 income years
16 Superannuation Legislation Amendment Bill 2010 No. , 2010
Part 2--2007-08 to 2010-11 income years
1
Division 1--Main amendments
2
Income Tax Assessment Act 1997
3
2 At the end of paragraph 295-460(b)
4
Add:
5
Note:
Disability superannuation benefit has an extended meaning for
6
the 2007-08 to 2010-11 income years for the purposes of
7
subsection 295-465(1): see section 295-466 of the Income Tax
8
(Transitional Provisions) Act 1997.
9
3 Subsection 295-465(1) (table item 5)
10
After "provide", insert "certain benefits, if those benefits are".
11
Income Tax (Transitional Provisions) Act 1997
12
4 Section 295-465 (heading)
13
Repeal the heading, substitute:
14
295-465 Complying funds--deductions for insurance premiums
15
5 After section 295-465
16
Insert:
17
295-466 Complying funds--deductions for insurance premiums for
18
disability superannuation benefits
19
Scope
20
(1) This section applies if:
21
(a) a complying superannuation fund pays a premium for an
22
insurance policy during:
23
(i) the 2007-08 income year; or
24
(ii) the 2008-09 income year; or
25
(iii) the 2009-10 income year; or
26
(iv) the 2010-11 income year; and
27
Disability insurance premiums paid by superannuation funds Schedule 2
2007-08 to 2010-11 income years Part 2
Superannuation Legislation Amendment Bill 2010 No. , 2010 17
(b) the policy is (wholly or partly) for current or contingent
1
liabilities of the fund to provide superannuation benefits for
2
members of the fund (whether the policy covers the whole or
3
parts of the liabilities).
4
Note:
For premiums paid during the 2004-05 to 2006-07 income years, see
5
Part 1 of Schedule 2 to the Superannuation Legislation Amendment
6
Act 2010.
7
Entitlement to deduction
8
(2) Treat the superannuation benefits mentioned in paragraph (1)(b) as
9
being disability superannuation benefits, to the extent that:
10
(a) the superannuation benefits are conditional on the disability
11
of the members mentioned in that paragraph; and
12
(b) the disability is described as a permanent disability in
13
regulations made for the purposes of this section.
14
Note:
Other events might have to occur after the event of the disability of the
15
members before the fund pays the benefits to the members. For
16
example, the members might have to satisfy a condition of release of
17
benefits specified in a standard made under paragraph 31(2)(h) of the
18
Superannuation Industry (Supervision) Act 1993, such as by reaching
19
a certain age.
20
(3) Subsection (2) applies:
21
(a) for the purposes of applying:
22
(i) subsection 295-465(1) of the Income Tax Assessment
23
Act 1997; and
24
(ii) paragraph 295-460(b) of that Act, to the extent that it
25
relates to subsection 295-465(1) of that Act;
26
to the payment mentioned in paragraph (1)(a) of this section;
27
and
28
(b) without limiting subsection 295-465(1) and paragraph
29
295-460(b) of that Act.
30
Amendment of assessments
31
(4) Section 170 of the Income Tax Assessment Act 1936 does not
32
prevent the amendment of an assessment if:
33
(a) the assessment was made before the commencement of this
34
section; and
35
(b) the amendment is made within 2 years after that
36
commencement; and
37
Schedule 2 Disability insurance premiums paid by superannuation funds
Part 2 2007-08 to 2010-11 income years
18 Superannuation Legislation Amendment Bill 2010 No. , 2010
(c) the amendment is made for the purpose of giving effect to
1
this section.
2
Division 2--Sunsetting on 1 January 2017
3
Income Tax Assessment Act 1997
4
6 Paragraph 295-460(b) (note)
5
Repeal the note.
6
Income Tax (Transitional Provisions) Act 1997
7
7 Section 295-466
8
Repeal the section.
9
10
Superanuation and relationship breakdowns Schedule 3
Superannuation Legislation Amendment Bill 2010 No. , 2010 19
Schedule 3--Superanuation and relationship
1
breakdowns
2
3
Superannuation Industry (Supervision) Act 1993
4
1 Subsection 10(1) (note at the end of the definition of
5
relative)
6
Omit "Subsection (6)", substitute "Subsection (5)".
7
Note:
This item fixes an incorrect cross-reference.
8
2 After subsection 66(2A)
9
Insert:
10
Exception--breakdown of relationships
11
(2B) Subsection (1) does not prohibit a trustee or investment manager
12
acquiring an asset from a related party of the fund (the acquiring
13
fund) if:
14
(a) the asset is acquired:
15
(i) for the benefit of a particular member of the acquiring
16
fund; and
17
(ii) from a trustee or investment manager of another
18
regulated superannuation fund (the transferring fund);
19
and
20
(b) at the time of the acquisition:
21
(i) the member and his or her spouse or former spouse are
22
separated; and
23
(ii) there is no reasonable likelihood of cohabitation being
24
resumed; and
25
(c) the acquisition occurs because of reasons directly connected
26
with the breakdown of the relationship between the spouses
27
or former spouses; and
28
(d) the asset represents the whole, or a part, of either:
29
(i) the member's own interests in the transferring fund; or
30
(ii) the member's entitlements as determined under
31
Part VIIIB of the Family Law Act 1975 in relation to the
32
interests of the member's spouse, or former spouse, in
33
the transferring fund.
34
Schedule 3 Superanuation and relationship breakdowns
20 Superannuation Legislation Amendment Bill 2010 No. , 2010
(2C) For the purposes of subsection (2B), the question whether the
1
spouses, or former spouses, have separated is to be determined in
2
the same way as it is for the purposes of section 48 of the Family
3
Law Act 1975 (as affected by sections 49 and 50 of that Act).
4
3 After section 71E
5
Insert:
6
71EA Relationship breakdowns
7
Scope
8
(1) This section applies if:
9
(a) a trustee or an investment manager of a regulated
10
superannuation fund (the acquiring fund) acquires an asset:
11
(i) for the benefit of a particular member of the acquiring
12
fund; and
13
(ii) from a trustee or investment manager of another
14
regulated superannuation fund (the transferring fund);
15
and
16
(b) at the time of the acquisition:
17
(i) the member and his or her spouse or former spouse are
18
separated; and
19
(ii) there is no reasonable likelihood of cohabitation being
20
resumed; and
21
(c) the acquisition occurs because of reasons directly connected
22
with the breakdown of the relationship between the spouses
23
or former spouses; and
24
(d) the asset represents the whole, or a part, of either:
25
(i) the member's own interests in the transferring fund; or
26
(ii) the member's entitlements as determined under
27
Part VIIIB of the Family Law Act 1975 in relation to the
28
interests of the member's spouse, or former spouse, in
29
the transferring fund.
30
(2) For the purposes of subsection (1), the question whether the
31
spouses, or former spouses, have separated is to be determined in
32
the same way as it is for the purposes of section 48 of the Family
33
Law Act 1975 (as affected by sections 49 and 50 of that Act).
34
Superanuation and relationship breakdowns Schedule 3
Superannuation Legislation Amendment Bill 2010 No. , 2010 21
Acquiring fund taken to have always held asset
1
(3) For the purposes of applying this Subdivision to the asset at or after
2
the time (the acquisition time) the trustee or investment manager
3
of the acquiring fund acquires the asset, treat:
4
(a) the acquisition as having occurred at the time the trustee or
5
investment manager of the transferring fund acquired the
6
asset; and
7
(b) anything done by, for or in relation to the transferring fund in
8
relation to the asset before the acquisition time as having
9
been done by, for or in relation to the acquiring fund; and
10
(c) anything done by, for or in relation to the trustee or
11
investment manager of the transferring fund in relation to the
12
asset before the acquisition time as having been done by, for
13
or in relation to the trustee or investment manager of the
14
acquiring fund.
15
Section 71E elections
16
(4) In addition to their effect apart from this subsection, subsection
17
103(2A) (duty to keep record of election) and subsection 103(3), to
18
the extent that it relates to subsection 103(2A), also have the effect
19
they would have if subsection (3) of this section applied to them.
20
Note:
This means that the trustees of both the transferring fund and the
21
acquiring fund must retain, in accordance with subsection 103(2A),
22
any election made under section 71E in relation to the transferring
23
fund before the transfer of the asset.
24
(5) A person commits an offence if:
25
(a) the person is a trustee of the transferring fund; and
26
(b) just before the acquisition time, the trustee had a duty under
27
subsection 103(2A) to retain an election, or a copy of an
28
election, under section 71E in relation to the transferring
29
fund; and
30
(c) the trustee does not, within 14 days after the acquisition time,
31
give the election or copy to a trustee or investment manager
32
of the acquiring fund.
33
Penalty: 50 penalty units.
34
Note:
If the trustee gives the election to the acquiring fund, he or she must
35
retain a copy of the election: see subsection (4).
36
(6) An offence against subsection (5) is an offence of strict liability.
37
Schedule 3 Superanuation and relationship breakdowns
22 Superannuation Legislation Amendment Bill 2010 No. , 2010
Note:
For strict liability, see section 6.1 of the Criminal Code.
1
4 Application
2
The amendments made by items 2 and 3 of this Schedule apply to
3
acquisitions occurring on or after the commencement of this item.
4
5
Other amendments Schedule 4
Notices of intent to deduct Part 1
Superannuation Legislation Amendment Bill 2010 No. , 2010 23
Schedule 4--Other amendments
1
Part 1--Notices of intent to deduct
2
Income Tax Assessment Act 1997
3
1 Subparagraph 290-170(2)(d)(ii)
4
After "RSA provider", insert "to which you made the application".
5
2 Subsection 290-170(4)
6
Omit "into which the contribution is made", substitute "to which the
7
notice relates".
8
3 Subsection 290-170(5)
9
Repeal the subsection, substitute:
10
Application to successor funds
11
(5) Subsections (1) to (4) and section 290-180 apply as if:
12
(a) references in those provisions to the fund or
*
RSA were
13
references to a
*
successor fund; and
14
(b) references in those provisions to the trustee or
*
RSA provider
15
were references to the trustee or RSA provider of the
16
successor fund;
17
if:
18
(c) after making your contribution, all of the
*
superannuation
19
interest to which the notice relates is transferred to the
20
successor fund; and
21
(d) you have not previously given a valid notice under this
22
section to any
*
superannuation provider in relation to the
23
contribution.
24
4 Subsection 290-180(5)
25
Repeal the subsection, substitute:
26
Application to successor funds
27
(5) Subsections (2) and (3A) apply as if:
28
Schedule 4 Other amendments
Part 1 Notices of intent to deduct
24 Superannuation Legislation Amendment Bill 2010 No. , 2010
(a) the reference in subsection (3A) to the fund or
*
RSA were a
1
reference to a
*
successor fund; and
2
(b) references in those subsections to the trustee or
*
RSA
3
provider were references to the trustee or RSA provider of
4
the successor fund;
5
if, after a valid notice is given under section 290-170 in relation to
6
the contribution, all of the
*
superannuation interest to which the
7
notice relates is transferred to the successor fund.
8
5 Paragraph 292-25(2)(b)
9
After "plan", insert ", or, by way of a
*
roll-over superannuation benefit,
10
in the assessable income of a
*
complying superannuation fund or
*
RSA
11
provider in the circumstances mentioned in subsection 290-170(5)
12
(about successor funds)".
13
6 Paragraph 292-90(2)(b)
14
After "plan", insert ", or, by way of a
*
roll-over superannuation benefit,
15
in the assessable income of any
*
complying superannuation fund or
16
*
RSA provider in the circumstances mentioned in subsection
17
290-170(5) (about successor funds)".
18
7 Subsection 295-190(1) (cell at table item 1, column headed
19
"Includes:")
20
Repeal the cell, substitute:
21
A contribution:
(a) made to the CSF or
*
RSA; and
(b) covered by a valid and
acknowledged notice given to the
*
superannuation provider of the
CSF or RSA under section 290-170
8 Subsection 295-190(1) (after table item 2)
22
Insert:
23
2A CSF
*
RSA provider
A
*
roll-over superannuation benefit
that an individual is taken to receive
under section 307-15 to the extent that:
(a) the CSF or
*
RSA is a
*
successor
fund; and
(b) the benefit relates to a contribution
Other amendments Schedule 4
Notices of intent to deduct Part 1
Superannuation Legislation Amendment Bill 2010 No. , 2010 25
that, before it was transferred to the
successor fund, was not covered by
a valid and acknowledged notice
given to any
*
superannuation
provider under section 290-170;
and
(c) while the benefit is held in the
successor fund, the contribution
becomes covered by a valid and
acknowledged notice given to the
superannuation provider of the
successor fund under that section
9 Subsection 295-190(1A)
1
Omit "Item 2 of the table in subsection (1) does", substitute "Items 2
2
and 2A of the table in subsection (1) do".
3
10 Before subsection 295-190(2)
4
Insert:
5
Income years in which amounts are included in assessable income
6
11 At the end of section 295-190
7
Add:
8
(5) A benefit referred to in item 2A is included in the income year in
9
which it is received if the notice is received by the
*
superannuation
10
provider by the day the provider lodges its
*
income tax return for
11
that income year.
12
(6) Otherwise it is included in the income year in which the notice is
13
received.
14
12 Section 295-195 (heading)
15
Repeal the heading, substitute:
16
295-195 Exclusion of personal contributions--contributions
17
13 Subsections 295-195(1) and (2)
18
After "or
*
RSA provider", insert "under item 1 of the table in subsection
19
295-190(1)".
20
Schedule 4 Other amendments
Part 1 Notices of intent to deduct
26 Superannuation Legislation Amendment Bill 2010 No. , 2010
14 After section 295-195
1
Insert:
2
295-197 Exclusion of personal contributions--successor funds
3
Scope
4
(1) This section applies to the
*
superannuation provider (the successor
5
provider) of a
*
complying superannuation fund or
*
RSA if, apart
6
from this section, a
*
roll-over superannuation benefit would be
7
included in the assessable income of the fund or
*
RSA provider
8
under item 2A of the table in subsection 295-190(1).
9
Variation notice received before return lodged
10
(2) The benefit is not so included, to the extent that the relevant
11
contribution has been reduced by a notice under section 290-180, if
12
the notice is received by the successor provider before the
13
successor provider has lodged its
*
income tax return for the income
14
year in which the benefit was transferred.
15
Variation notice received after return lodged
16
(3) The benefit is not so included in the assessable income for the
17
income year in which the benefit was transferred, to the extent that
18
the relevant contribution has been reduced by a notice under
19
section 290-180, if:
20
(a) the notice is received by the successor provider after the
21
successor provider has lodged its
*
income tax return for the
22
income year; and
23
(b) the successor provider exercises the option mentioned in
24
subsection (4).
25
(4) An amount referred to in subsection (3) may, at the option of the
26
successor provider, be excluded from the assessable income of the
27
fund or
*
RSA provider for the income year referred to in
28
subsection (3) if excluding it would result in a greater reduction in
29
tax for that year than the reduction that would occur for the income
30
year in which the notice is received if a deduction were allowed
31
under item 2B of the table in subsection 295-490(1).
32
Note:
The exclusion is an alternative to the fund deducting the amount under
33
item 2B of the table in subsection 295-490(1).
34
Other amendments Schedule 4
Notices of intent to deduct Part 1
Superannuation Legislation Amendment Bill 2010 No. , 2010 27
15 Subsection 295-490(1) (cell at table item 2, column headed
1
"Can deduct:")
2
Repeal the cell, substitute:
3
Contributions made to the CSF or
*
RSA to the extent they have been
reduced by a notice under
section 290-180 received by the
*
superannuation provider of the CSF
or RSA after it lodged its
*
income tax
return for the income year in which
the contributions were made, but only
if the provider has not exercised the
option mentioned in subsection
295-195(3)
16 Subsection 295-490(1) (after table item 2)
4
Insert:
5
2A CSF
*
RSA provider
A
*
roll-over superannuation benefit,
to the extent that:
(a) the CSF or
*
RSA is a
*
successor
fund; and
(b) the benefit relates to a
contribution that, before it was
transferred to the successor fund,
was covered by a valid and
acknowledged notice given to any
*
superannuation provider under
section 290-170; and
(c) the contribution is reduced by a
notice under section 290-180
received by the superannuation
provider of the successor fund
(whether or not the contribution
has previously been reduced by a
notice given to any
superannuation provider under
that section)
The notice
mentioned in
paragraph (c) is
received
2B CSF
*
RSA provider
A
*
roll-over superannuation benefit,
to the extent that:
(a) the benefit is included in the
assessable income of the CSF or
RSA provider under item 2A of
The notice
mentioned in
paragraph (b) is
received
Schedule 4 Other amendments
Part 1 Notices of intent to deduct
28 Superannuation Legislation Amendment Bill 2010 No. , 2010
the table in subsection
295-490(1); and
(b) the relevant contribution has been
reduced by a notice under
section 290-180 received by the
*
superannuation provider of the
CSF or
*
RSA after it lodged its
*
income tax return for the income
year in which the transfer
occurred; and
(c) the provider has not exercised the
option mentioned in subsection
295-197(4)
17 Subsection 995-1(1)
1
Insert:
2
successor fund, in relation to a transfer of a
*
superannuation
3
interest of a member of a
*
superannuation fund, or a holder of an
4
*
RSA, (the original fund) means a superannuation fund or RSA
5
that satisfies the following conditions:
6
(a) the fund or RSA confers on the member or holder equivalent
7
rights to the rights that the member or holder had under the
8
original fund in respect of the interest;
9
(b) before the transfer, the
*
superannuation provider of the fund
10
or RSA has agreed with the superannuation provider of the
11
original fund that the fund or RSA will confer on the member
12
or holder equivalent rights to the rights that the member or
13
holder had under the original fund in respect of the interest.
14
Tax Laws Amendment (2009 Measures No. 6) Act 2010
15
18 Items 19 and 20 of Schedule 2
16
Repeal the items.
17
18
Other amendments Schedule 4
Employer contributions Part 2
Superannuation Legislation Amendment Bill 2010 No. , 2010 29
Part 2--Employer contributions
1
Income Tax Assessment Act 1997
2
19 Paragraph 290-85(1)(b)
3
Omit "or" (last occurring).
4
20 Paragraph 290-85(1)(c)
5
Repeal the paragraph.
6
21 After subsection 290-85(1)
7
Insert:
8
(1AA) Section 290-60 also applies as modified by this section if:
9
(a) a contribution you make in respect of another person relates
10
to a period of service during which the other person was your
11
employee; and
12
(b) you make the contribution within 4 months after the person
13
stops being your employee; and
14
(c) you would have been entitled to a deduction in relation to the
15
contribution if:
16
(i) you had made it at a time when the other person was
17
your employee; and
18
(ii) the law that applied to your entitlement to the deduction
19
at that time had been the same as it was at the time you
20
actually made the contribution.
21
(1AB) Section 290-60 also applies as modified by this section if:
22
(a) a contribution you make in respect of another person relates
23
to a period of service during which the other person was your
24
employee; and
25
(b) the contribution relates to a
*
defined benefit interest of the
26
other person; and
27
(c) you are at
*
arm's length with the other person in relation to
28
the contribution; and
29
(d) you obtain an
*
actuary's certificate that:
30
(i) complies with the requirements (if any) specified by the
31
regulations for the purposes of this paragraph; and
32
Schedule 4 Other amendments
Part 2 Employer contributions
30 Superannuation Legislation Amendment Bill 2010 No. , 2010
(ii) is to the effect that the contribution does not exceed the
1
amount required by the relevant
*
superannuation fund to
2
meet the fund's liabilities in connection with defined
3
benefit interests; and
4
(e) you would have been entitled to a deduction in relation to the
5
contribution if:
6
(i) you had made it at a time when the other person was
7
your employee; and
8
(ii) the law that applied to your entitlement to the deduction
9
at that time had been the same as it was at the time you
10
actually made the contribution.
11
22 Subparagraph 290-85(1A)(d)(iii)
12
Repeal the subparagraph, substitute:
13
(iii) if subsection (1B) or (1C) applies--relates to a period of
14
service during which the other person was the
15
company's or entity's employee.
16
23 After subsection 290-85(1A)
17
Insert:
18
(1B) This subsection applies if:
19
(a) you make the contribution within 4 months after the person
20
stops being the company's or entity's employee; and
21
(b) you would have been entitled to a deduction in relation to the
22
contribution if you had made it while the other person was
23
the company's or entity's employee.
24
(1C) This subsection applies if:
25
(a) the contribution relates to a
*
defined benefit interest of the
26
other person; and
27
(b) you and the company are at
*
arm's length with the other
28
person in relation to the contribution; and
29
(c) you obtain an
*
actuary's certificate that:
30
(i) complies with the requirements (if any) specified by the
31
regulations for the purposes of this paragraph; and
32
(ii) is to the effect that the contribution does not exceed the
33
amount required by the relevant
*
superannuation fund or
34
*
RSA to meet the fund's or RSA's liabilities in
35
connection with defined benefit interests; and
36
Other amendments Schedule 4
Employer contributions Part 2
Superannuation Legislation Amendment Bill 2010 No. , 2010 31
(d) you would have been entitled to a deduction in respect of the
1
contribution if you had made it while the other person was
2
the company's or entity's employee.
3
24 Paragraph 290-85(3)(a)
4
After "subsection (1)", insert "or (1AA)".
5
6
Schedule 4 Other amendments
Part 3 Shortfall interest charge
32 Superannuation Legislation Amendment Bill 2010 No. , 2010
Part 3--Shortfall interest charge
1
Taxation Administration Act 1953
2
25 Section 280-102A in Schedule 1 (note)
3
Omit "and shortfall interest charge becomes due and payable.
4
Section 292-390 of that Act", substitute "becomes due and payable. See
5
subsection 204(2A) of the Income Tax Assessment Act 1936 for when
6
the amount of shortfall interest charge becomes due and payable.
7
Section 292-390 of the Income Tax Assessment Act 1997".
8
26 Section 280-102A in Schedule 1 (note)
9
Omit "subsection 204(2A) of the Income Tax Assessment Act 1936 for
10
when the amount of shortfall interest charge becomes due and payable.
11
Section 292-390 of the Income Tax Assessment Act 1997", substitute
12
"section 5-10 of that Act for when the amount of shortfall interest
13
charge becomes due and payable. Section 292-390 of that Act".
14
Note:
The commencement of this item is contingent on the commencement of item 3 of
15
Schedule 1 to the Tax Laws Amendment (Transfer of Provisions) Act 2010.
16
17
Other amendments Schedule 4
Excess contributions tax Part 4
Superannuation Legislation Amendment Bill 2010 No. , 2010 33
Part 4--Excess contributions tax
1
Income Tax Assessment Act 1997
2
27 Subsection 292-465(2)
3
Omit "within".
4
28 Paragraphs 292-465(2)(a) and (b)
5
Repeal the paragraphs, substitute:
6
(a) after all of the contributions sought to be disregarded or
7
reallocated have been made; and
8
(b) if you receive an
*
excess contributions tax assessment for the
9
*
financial year--before the end of:
10
(i) the period of 60 days starting on the day you receive the
11
assessment; or
12
(ii) if the Commissioner allows a longer period--that longer
13
period.
14
29 At the end of section 292-465
15
Add:
16
(8) A determination under this section may be included in a notice of
17
assessment.
18
Review of determinations
19
(9) To avoid doubt:
20
(a) you may object under section 295-245 against an
*
excess
21
contributions tax assessment made in relation to you on the
22
ground that you are dissatisfied with a determination that you
23
applied for under this section; and
24
(b) for the purposes of paragraph (e) of Schedule 1 to the
25
Administrative Decisions (Judicial Review) Act 1977, the
26
making of a determination under this section is a decision
27
forming part of the process of making an assessment of tax
28
under this Act.
29
30
Schedule 4 Other amendments
Part 5 Public sector defined benefit schemes
34 Superannuation Legislation Amendment Bill 2010 No. , 2010
Part 5--Public sector defined benefit schemes
1
Income Tax Assessment Act 1997
2
30 After section 307-295
3
Insert:
4
307-297 Public sector superannuation schemes--elements set by
5
regulations
6
(1) This section applies to a
*
superannuation benefit that is paid from a
7
*
public sector superannuation scheme that is not a
*
constitutionally
8
protected fund.
9
(2) Despite any other provision of this Subdivision, the
*
taxable
10
component of the
*
superannuation benefit consists of an element
11
untaxed in the fund equal to the amount (if any) specified by the
12
regulations in relation to the benefit for the purposes of this
13
section.
14
(3) The amount specified must not be less than the amount that would
15
be the
*
element untaxed in the fund under the other provisions of
16
this Subdivision.
17
18
Other amendments Schedule 4
Amendment of the Superannuation (Unclaimed Money and Lost Members) Act 1999
Part 6
Superannuation Legislation Amendment Bill 2010 No. , 2010 35
Part 6--Amendment of the Superannuation
1
(Unclaimed Money and Lost Members) Act
2
1999
3
31 Paragraphs 20N(2)(a) and (b)
4
Repeal the paragraphs, substitute:
5
(a) the Immigration Secretary (within the meaning of the Income
6
Tax Assessment Act 1936); or
7
(b) an APS employee in the Immigration Department (within the
8
meaning of that Act).
9
10
Schedule 4 Other amendments
Part 7 Application and transitional provisions
36 Superannuation Legislation Amendment Bill 2010 No. , 2010
Part 7--Application and transitional provisions
1
32 Application provision
2
(1)
The amendments made by Part 1 of this Schedule apply in relation to:
3
(a) notices given under section 290-170 of the Income Tax
4
Assessment Act 1997 on or after the commencement of this
5
item; and
6
(b) notices of variation given under section 290-180 of that Act
7
on or after the commencement of this item (whether the
8
notices being varied were given before, on or after the
9
commencement of this item).
10
(2)
The amendments made by Part 2 of this Schedule apply in relation to
11
contributions made on or after the commencement of this item.
12
(3)
The amendments made by Part 4 of this Schedule apply in relation to
13
applications made on or after the commencement of this item.
14
33 Transitional provision--allowance of extra time to make
15
applications
16
From the commencement of this item, treat an allowance:
17
(a) made under paragraph 292-465(2)(b) of the Income Tax
18
Assessment Act 1997; and
19
(b) in force just before the commencement of this item;
20
as having been made under subparagraph 292-465(2)(b)(ii) of that Act
21
as substituted by Part 4 of this Schedule.
22