SUPERANNUATION LEGISLATION AMENDMENT BILL 2010

i Superannuation Legislation Amendment Bill 2010 No. , 2010

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Amendment of assessments ............................................................... 3

Schedule 1--Unclaimed money

Part 1--Amendment of the Superannuation (Unclaimed

Money and Lost Members) Act 1999

Part 2--Amendment of the Income Tax Assessment Act 1997

Part 3--Application provision

Schedule 2--Disability insurance premiums paid by

superannuation funds

Part 1--2004-05 to 2006-07 income years

Part 2--2007-08 to 2010-11 income years

Division 1--Main amendments

Income Tax Assessment Act 1997

Income Tax (Transitional Provisions) Act 1997

Division 2--Sunsetting on 1 January 2017

Income Tax Assessment Act 1997

Income Tax (Transitional Provisions) Act 1997

Schedule 3--Superanuation and relationship breakdowns

Superannuation Industry (Supervision) Act 1993

Schedule 4--Other amendments

Part 1--Notices of intent to deduct

Income Tax Assessment Act 1997

Tax Laws Amendment (2009 Measures No. 6) Act 2010

Part 2--Employer contributions

Income Tax Assessment Act 1997

Part 3--Shortfall interest charge

Taxation Administration Act 1953

Superannuation Legislation Amendment Bill 2010 No. , 2010 1

A Bill for an Act to amend the law relating to

superannuation, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Superannuation Legislation

Amendment Act 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

Superannuation Legislation Amendment Bill 2010 No. , 2010 3

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

4 Amendment of assessments

Section 170 of the Income Tax Assessment Act 1936 does not

prevent the amendment of an assessment if:

(a) the assessment was made before the commencement of

item 1 of Schedule 2 to this Act; and

(b) the amendment is made within 2 years after that

commencement; and

that item.

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

Part 1--Amendment of the Superannuation

(Unclaimed Money and Lost Members) Act

1999

1 Section 7

Omit "consistent with this Act, superannuation providers must",

substitute "consistent with this Act, superannuation providers that are

trustees of public sector superannuation schemes may".

2 At the end of section 7

Add:

Prescribed public sector superannuation schemes

The trustees of certain public sector superannuation schemes may

comply with this Act in the same way as superannuation providers.

3 Section 8

Insert:

Commonwealth public sector superannuation scheme means a

scheme for the payment of superannuation, retirement or death

benefits, where the scheme is established:

(a) by or under a law of the Commonwealth; or

(b) under the authority of:

(i) the Commonwealth; or

(ii) a municipal corporation, another local governing body

or a public authority constituted by or under a law of the

Commonwealth.

4 Section 8 (definition of public sector superannuation

scheme)

Repeal the definition, substitute:

public sector superannuation scheme has the same meaning as in

the SIS Act.

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

Insert:

State or Territory public sector superannuation scheme has the

meaning given by subsection 18(7).

6 Section 8

Insert:

unfunded public sector scheme has the meaning given by the

Superannuation Guarantee (Administration) Act 1992.

7 After section 18

Insert:

18AA Prescribed public sector superannuation schemes

(1) Sections 6, 10 to 12, 14, 16 to 17 and 18A to 18C and subsections

19(1) to (3), 24C(6), 24E(5) and 25(2) apply as if:

(a) a public sector superannuation scheme that is:

(i) prescribed for the purposes of this section; and

(ii) not a fund;

were a fund; and

Note 1: The regulations may prescribe a scheme by reference to a class of

schemes: see subsection 13(3) of the Legislative Instruments Act

2003.

Note 2: The trustee of a State or Territory public sector superannuation

scheme that is a fund must comply with this Part, subject to

section 18.

(b) the trustee of the scheme were the superannuation provider;

and

(2) Despite subsection (1), in the case of a State or Territory public

sector superannuation scheme:

(a) section 16 (Statement of unclaimed money):

(i) permits, rather than requires, the trustee to give a

statement to the Commissioner; and

(ii) does not permit the trustee to give a statement to the

Commissioner if the governing rules of the scheme

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

Commissioner; and

(b) section 17 (Payment of unclaimed money):

(i) does not apply in relation to an unclaimed money day if

the trustee does not give a statement in relation to the

unclaimed money day to the Commissioner under

subsection 16(1); and

(ii) permits, rather than requires, the trustee to pay an

amount to the Commissioner; and

(iii) does not apply to an amount to the extent that the

governing rules of the scheme prohibit the trustee from

paying the amount to the Commissioner.

Note:

The heading to section 18 is replaced by the heading "State or Territory public sector

superannuation schemes".

8 Subsection 20C(3)

Repeal the subsection, substitute:

(3) Subsection (1) does not apply if:

(a) the superannuation provider is:

(i) the trustee of a State or Territory public sector

superannuation scheme; or

(ii) the superannuation provider for an unfunded public

sector scheme; and

(b) the scheme is not prescribed for the purposes of

section 20JA.

9 After section 20J

Insert:

20JA Prescribed public sector superannuation schemes

(1) Section 6, subsections 16(7), 17(2A) and 19(1) and (3), this Part

(other than subsections 20F(5) and (6)) and subsections 24C(6),

24E(5) and 25(2A) apply as if:

(a) a public sector superannuation scheme that:

(i) is prescribed for the purposes of this section; and

(ii) in the case of a Commonwealth public sector

superannuation scheme--is not a fund, or is an

unfunded public sector scheme;

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

Note 1: The regulations may prescribe a scheme by reference to a class of

schemes: see subsection 13(3) of the Legislative Instruments Act

2003.

Note 2: This Part applies to a Commonwealth public sector

superannuation scheme that is not an unfunded public sector

scheme whether or not the scheme is prescribed: see section 20C.

(b) the trustee of the scheme were the superannuation provider;

and

superannuation interest in the fund.

(2) Despite subsection (1), in the case of a State or Territory public

sector superannuation scheme:

(a) section 20C (notices about certain former temporary

residents) permits, rather than requires, the Commissioner to

give a notice to the trustee; and

(b) section 20E (statement):

(i) permits, rather than requires, the trustee to give a

statement to the Commissioner; and

(ii) does not permit the trustee to give a statement to the

Commissioner if the governing rules of the scheme

prohibit the trustee from giving the statement to the

Commissioner; and

(i) does not apply in relation to a notice given to the trustee

under section 20C if the trustee does not give a

statement in relation to the notice to the Commissioner

under section 20E; and

(ii) permits, rather than requires, the trustee to pay an

amount to the Commissioner; and

(iii) does not apply to an amount to the extent that the

governing rules of the scheme prohibit the trustee from

paying the amount to the Commissioner.

10 Subsection 24C(1) (note 1)

Omit "section 24H", substitute "sections 24H and 24HA".

11 Subsection 24E(1) (note 1)

Omit "section 24H", substitute "sections 24H and 24HA".

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

Omit "Sections", substitute "Subject to section 24HA, sections".

Note:

The heading to section 24H is replaced by the heading "State or Territory public

sector superannuation schemes".

13 After section 24H

Insert:

24HA Prescribed public sector superannuation schemes

(1) Section 6, subsections 19(1) to (3), this Part (other than

sections 24F and 24H) and subsections 25(3) and (4) apply as if:

(a) a public sector superannuation scheme that:

(i) is prescribed for the purposes of this section; and

(ii) in the case of a Commonwealth public sector

superannuation scheme--is not a fund;

were a fund; and

Note:

The regulations may prescribe a scheme by reference to a class of

schemes: see subsection 13(3) of the Legislative Instruments Act

2003.

(b) the trustee of the scheme were the superannuation provider;

and

(2) Despite subsection (1), in the case of a State or Territory public

sector superannuation scheme:

(a) section 24C (Statement of lost member accounts):

(i) permits, rather than requires, the trustee to give a

statement to the Commissioner; and

(ii) does not permit the trustee to give a statement to the

Commissioner if the governing rules of the scheme

prohibit the trustee from giving the statement to the

Commissioner; and

(b) section 24E (Payment in respect of lost member accounts):

(i) does not apply in relation to an unclaimed money day if

the trustee does not give a statement in relation to the

unclaimed money day to the Commissioner under

section 24C; and

(ii) permits, rather than requires, the trustee to pay an

amount to the Commissioner; and

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

governing rules of the scheme prohibit the trustee from

paying the amount to the Commissioner.

(3) Subparagraphs (2)(a)(i) and (b)(ii) do not apply in relation to an

unclaimed money day if, disregarding this section:

(a) the public sector superannuation scheme is a fund; and

(b) the superannuation provider has to comply with subsections

16(1) and 17(1) in relation to the unclaimed money day.

14 After section 49

Insert:

49A Money transferred to State or Territory authorities

(1) This section applies if:

(a) a person was a member of a fund, or a superannuation fund,

(the original fund); and

(b) the superannuation provider of the fund, or the trustee of the

superannuation fund, (the original provider) transferred an

interest of the member in the original fund to a State or

Territory authority; and

Example: The law of the State or Territory required the original provider to

transfer unclaimed money of the member to the State or Territory

authority.

authority) (whether or not the State or Territory authority

mentioned in paragraph (b)) would be required, under:

(i) the governing rules of the original fund; or

(ii) the law of the State or Territory;

to make a payment to or in respect of the member in

circumstances in which, before the transfer, the original

provider would have been required to make a payment to or

in respect of the member.

Example: A requirement to pay unclaimed money to a member who claims

it.

(2) Section 18AA and, in the case of a State or Territory public sector

superannuation scheme, sections 20JA and 24HA, apply as if:

(a) the currently responsible authority were the trustee of a State

or Territory public sector superannuation scheme; and

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:

(i) prescribed for the purposes of those sections; and

(ii) not a fund; and

scheme; and

(d) anything done by, to or in relation to the original provider in

relation to the original fund had been done by, to or in

relation to the currently responsible authority in relation to

the scheme; and

(e) a reference in those sections to the governing rules of the

original fund were a reference to the laws of the State or

Territory.

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

Act 1997

15 Section 306-20

After "Superannuation (Unclaimed Money and Lost Members) Act

1999", insert ", or because it is paid as mentioned in subsection 18(4) of

that Act,".

16 Subsection 307-5(1) (table item 5)

Repeal the item, substitute:

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)

After "Superannuation (Unclaimed Money and Lost Members) Act

1999", insert ", or by a State or Territory authority as mentioned in

subsection 18(5) of that Act,".

18 Subsection 307-142(3) (cell at table item 1, column 1)

Repeal the cell, substitute:

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)

Repeal the cell, substitute:

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)

Insert:

(3A) Treat the amount set out in column 3 of an item of the table in

subsection (3) as being nil, if:

(a) the unclaimed amount set out in column 1 of the item is an

amount paid to the Commissioner by a State or Territory

authority (within the meaning of the Superannuation

(Unclaimed Money and Lost Members) Act 1999) in the

circumstances mentioned in section 18AA, 20JA or 24HA of

that Act; and

(b) the Commissioner does not have sufficient information to

work out the amount set out in column 3 of the item.

Unclaimed money Schedule 1

Application provision Part 3

Superannuation Legislation Amendment Bill 2010 No. , 2010 13

Part 3--Application provision

21 Application provision

(1)

Subparagraph 49A(1)(b)(i) of the Superannuation (Unclaimed Money

and Lost Members) Act 1999, inserted by this Schedule, applies to

transfers occurring before, on or after the commencement of this item.

(2)

The amendments of section 307-142 of the Income Tax Assessment Act

1997 made by this Schedule apply in relation to payments made on or

after the commencement of this item.

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

paid by superannuation funds

Part 1--2004-05 to 2006-07 income years

1 Complying funds--deductions for insurance premiums for

disability benefits

Scope

(1)

This item applies if:

(a) the trustee of a complying superannuation fund pays a

premium for an insurance policy during:

(i) the 2004-05 income year; or

(ii) the 2005-06 income year; or

(iii) the 2006-07 income year; and

(b) the policy is (wholly or partly) for current or contingent

liabilities of the fund to provide benefits for members of the

fund (whether the policy covers the whole or parts of the

liabilities).

Note:

For premiums paid during the 2007-08 to 2010-11 income years, see section 295-466 of

the Income Tax (Transitional Provisions) Act 1997.

Entitlement to deduction

(2)

Treat the benefits mentioned in paragraph (1)(b) as being death or

disability benefits, in relation to the members mentioned in that

paragraph, to the extent that:

(a) the benefits are conditional on the disability of the members;

and

(b) the disability is described as a permanent disability in

regulations made for the purposes of section 295-466 of the

Income Tax (Transitional Provisions) Act 1997.

Note:

Other events might have to occur after the event of the disability of the members before

the fund pays the benefits to the members. For example, the members might have to

satisfy a condition of release of benefits specified in a standard made under paragraph

31(2)(h) of the Superannuation Industry (Supervision) Act 1993, such as by reaching a

certain age.

(3)

Subitem (2) applies:

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

Division 1--Main amendments

Income Tax Assessment Act 1997

2 At the end of paragraph 295-460(b)

Add:

Note:

Disability superannuation benefit has an extended meaning for

the 2007-08 to 2010-11 income years for the purposes of

subsection 295-465(1): see section 295-466 of the Income Tax

(Transitional Provisions) Act 1997.

3 Subsection 295-465(1) (table item 5)

After "provide", insert "certain benefits, if those benefits are".

Income Tax (Transitional Provisions) Act 1997

4 Section 295-465 (heading)

Repeal the heading, substitute:

295-465 Complying funds--deductions for insurance premiums

5 After section 295-465

Insert:

295-466 Complying funds--deductions for insurance premiums for

disability superannuation benefits

Scope

(1) This section applies if:

(a) a complying superannuation fund pays a premium for an

insurance policy during:

(i) the 2007-08 income year; or

(ii) the 2008-09 income year; or

(iii) the 2009-10 income year; or

(iv) the 2010-11 income year; and

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

liabilities of the fund to provide superannuation benefits for

members of the fund (whether the policy covers the whole or

parts of the liabilities).

Note:

For premiums paid during the 2004-05 to 2006-07 income years, see

Part 1 of Schedule 2 to the Superannuation Legislation Amendment

Act 2010.

Entitlement to deduction

(2) Treat the superannuation benefits mentioned in paragraph (1)(b) as

being disability superannuation benefits, to the extent that:

(a) the superannuation benefits are conditional on the disability

of the members mentioned in that paragraph; and

(b) the disability is described as a permanent disability in

regulations made for the purposes of this section.

Note:

Other events might have to occur after the event of the disability of the

members before the fund pays the benefits to the members. For

example, the members might have to satisfy a condition of release of

benefits specified in a standard made under paragraph 31(2)(h) of the

Superannuation Industry (Supervision) Act 1993, such as by reaching

a certain age.

(3) Subsection (2) applies:

(a) for the purposes of applying:

(i) subsection 295-465(1) of the Income Tax Assessment

Act 1997; and

(ii) paragraph 295-460(b) of that Act, to the extent that it

relates to subsection 295-465(1) of that Act;

to the payment mentioned in paragraph (1)(a) of this section;

and

(b) without limiting subsection 295-465(1) and paragraph

295-460(b) of that Act.

Amendment of assessments

(4) Section 170 of the Income Tax Assessment Act 1936 does not

prevent the amendment of an assessment if:

(a) the assessment was made before the commencement of this

section; and

(b) the amendment is made within 2 years after that

commencement; and

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

this section.

Division 2--Sunsetting on 1 January 2017

Income Tax Assessment Act 1997

6 Paragraph 295-460(b) (note)

Repeal the note.

Income Tax (Transitional Provisions) Act 1997

7 Section 295-466

Repeal the section.

Superanuation and relationship breakdowns Schedule 3

Superannuation Legislation Amendment Bill 2010 No. , 2010 19

Schedule 3--Superanuation and relationship

breakdowns

Superannuation Industry (Supervision) Act 1993

1 Subsection 10(1) (note at the end of the definition of

relative)

Omit "Subsection (6)", substitute "Subsection (5)".

Note:

This item fixes an incorrect cross-reference.

2 After subsection 66(2A)

Insert:

Exception--breakdown of relationships

(2B) Subsection (1) does not prohibit a trustee or investment manager

acquiring an asset from a related party of the fund (the acquiring

fund) if:

(a) the asset is acquired:

(i) for the benefit of a particular member of the acquiring

fund; and

(ii) from a trustee or investment manager of another

regulated superannuation fund (the transferring fund);

and

(b) at the time of the acquisition:

(i) the member and his or her spouse or former spouse are

separated; and

(ii) there is no reasonable likelihood of cohabitation being

resumed; and

with the breakdown of the relationship between the spouses

or former spouses; and

(d) the asset represents the whole, or a part, of either:

(i) the member's own interests in the transferring fund; or

(ii) the member's entitlements as determined under

Part VIIIB of the Family Law Act 1975 in relation to the

interests of the member's spouse, or former spouse, in

the transferring fund.

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

spouses, or former spouses, have separated is to be determined in

the same way as it is for the purposes of section 48 of the Family

Law Act 1975 (as affected by sections 49 and 50 of that Act).

3 After section 71E

Insert:

71EA Relationship breakdowns

Scope

(1) This section applies if:

(a) a trustee or an investment manager of a regulated

superannuation fund (the acquiring fund) acquires an asset:

(i) for the benefit of a particular member of the acquiring

fund; and

(ii) from a trustee or investment manager of another

regulated superannuation fund (the transferring fund);

and

(b) at the time of the acquisition:

(i) the member and his or her spouse or former spouse are

separated; and

(ii) there is no reasonable likelihood of cohabitation being

resumed; and

with the breakdown of the relationship between the spouses

or former spouses; and

(d) the asset represents the whole, or a part, of either:

(i) the member's own interests in the transferring fund; or

(ii) the member's entitlements as determined under

Part VIIIB of the Family Law Act 1975 in relation to the

interests of the member's spouse, or former spouse, in

the transferring fund.

(2) For the purposes of subsection (1), the question whether the

spouses, or former spouses, have separated is to be determined in

the same way as it is for the purposes of section 48 of the Family

Law Act 1975 (as affected by sections 49 and 50 of that Act).

Superanuation and relationship breakdowns Schedule 3

Superannuation Legislation Amendment Bill 2010 No. , 2010 21

Acquiring fund taken to have always held asset

(3) For the purposes of applying this Subdivision to the asset at or after

the time (the acquisition time) the trustee or investment manager

of the acquiring fund acquires the asset, treat:

(a) the acquisition as having occurred at the time the trustee or

investment manager of the transferring fund acquired the

asset; and

(b) anything done by, for or in relation to the transferring fund in

relation to the asset before the acquisition time as having

been done by, for or in relation to the acquiring fund; and

investment manager of the transferring fund in relation to the

asset before the acquisition time as having been done by, for

or in relation to the trustee or investment manager of the

acquiring fund.

Section 71E elections

(4) In addition to their effect apart from this subsection, subsection

103(2A) (duty to keep record of election) and subsection 103(3), to

the extent that it relates to subsection 103(2A), also have the effect

they would have if subsection (3) of this section applied to them.

Note:

This means that the trustees of both the transferring fund and the

acquiring fund must retain, in accordance with subsection 103(2A),

any election made under section 71E in relation to the transferring

fund before the transfer of the asset.

(5) A person commits an offence if:

(a) the person is a trustee of the transferring fund; and

(b) just before the acquisition time, the trustee had a duty under

subsection 103(2A) to retain an election, or a copy of an

election, under section 71E in relation to the transferring

fund; and

give the election or copy to a trustee or investment manager

of the acquiring fund.

Penalty: 50 penalty units.

Note:

If the trustee gives the election to the acquiring fund, he or she must

retain a copy of the election: see subsection (4).

(6) An offence against subsection (5) is an offence of strict liability.

Other amendments Schedule 4

Notices of intent to deduct Part 1

Superannuation Legislation Amendment Bill 2010 No. , 2010 23

Schedule 4--Other amendments

Part 1--Notices of intent to deduct

Income Tax Assessment Act 1997

1 Subparagraph 290-170(2)(d)(ii)

After "RSA provider", insert "to which you made the application".

2 Subsection 290-170(4)

Omit "into which the contribution is made", substitute "to which the

notice relates".

3 Subsection 290-170(5)

Repeal the subsection, substitute:

Application to successor funds

(5) Subsections (1) to (4) and section 290-180 apply as if:

(a) references in those provisions to the fund or

RSA were

references to a

successor fund; and

(b) references in those provisions to the trustee or

RSA provider

were references to the trustee or RSA provider of the

successor fund;

if:

superannuation

interest to which the notice relates is transferred to the

successor fund; and

(d) you have not previously given a valid notice under this

section to any

superannuation provider in relation to the

contribution.

4 Subsection 290-180(5)

Repeal the subsection, substitute:

Application to successor funds

(5) Subsections (2) and (3A) apply as if:

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

reference to a

successor fund; and

(b) references in those subsections to the trustee or

RSA

provider were references to the trustee or RSA provider of

the successor fund;

if, after a valid notice is given under section 290-170 in relation to

the contribution, all of the

superannuation interest to which the

notice relates is transferred to the successor fund.

5 Paragraph 292-25(2)(b)

After "plan", insert ", or, by way of a

roll-over superannuation benefit,

in the assessable income of a

complying superannuation fund or

RSA

provider in the circumstances mentioned in subsection 290-170(5)

(about successor funds)".

6 Paragraph 292-90(2)(b)

After "plan", insert ", or, by way of a

roll-over superannuation benefit,

in the assessable income of any

complying superannuation fund or

RSA provider in the circumstances mentioned in subsection

290-170(5) (about successor funds)".

7 Subsection 295-190(1) (cell at table item 1, column headed

"Includes:")

Repeal the cell, substitute:

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)

Insert:

2A CSF

RSA provider

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

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)

Omit "Item 2 of the table in subsection (1) does", substitute "Items 2

and 2A of the table in subsection (1) do".

10 Before subsection 295-190(2)

Insert:

Income years in which amounts are included in assessable income

11 At the end of section 295-190

Add:

(5) A benefit referred to in item 2A is included in the income year in

which it is received if the notice is received by the

superannuation

provider by the day the provider lodges its

income tax return for

that income year.

(6) Otherwise it is included in the income year in which the notice is

received.

12 Section 295-195 (heading)

Repeal the heading, substitute:

295-195 Exclusion of personal contributions--contributions

13 Subsections 295-195(1) and (2)

After "or

RSA provider", insert "under item 1 of the table in subsection

295-190(1)".

Schedule 4 Other amendments

Part 1 Notices of intent to deduct

26 Superannuation Legislation Amendment Bill 2010 No. , 2010

14 After section 295-195

Insert:

295-197 Exclusion of personal contributions--successor funds

Scope

(1) This section applies to the

superannuation provider (the successor

provider) of a

complying superannuation fund or

RSA if, apart

from this section, a

roll-over superannuation benefit would be

included in the assessable income of the fund or

RSA provider

under item 2A of the table in subsection 295-190(1).

Variation notice received before return lodged

(2) The benefit is not so included, to the extent that the relevant

contribution has been reduced by a notice under section 290-180, if

the notice is received by the successor provider before the

successor provider has lodged its

income tax return for the income

year in which the benefit was transferred.

Variation notice received after return lodged

(3) The benefit is not so included in the assessable income for the

income year in which the benefit was transferred, to the extent that

the relevant contribution has been reduced by a notice under

section 290-180, if:

(a) the notice is received by the successor provider after the

successor provider has lodged its

income tax return for the

income year; and

(b) the successor provider exercises the option mentioned in

subsection (4).

(4) An amount referred to in subsection (3) may, at the option of the

successor provider, be excluded from the assessable income of the

fund or

RSA provider for the income year referred to in

subsection (3) if excluding it would result in a greater reduction in

tax for that year than the reduction that would occur for the income

year in which the notice is received if a deduction were allowed

under item 2B of the table in subsection 295-490(1).

Note:

The exclusion is an alternative to the fund deducting the amount under

item 2B of the table in subsection 295-490(1).

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

"Can deduct:")

Repeal the cell, substitute:

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)

Insert:

2A CSF

RSA provider

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

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

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

option mentioned in subsection

295-197(4)

17 Subsection 995-1(1)

Insert:

successor fund, in relation to a transfer of a

superannuation

interest of a member of a

superannuation fund, or a holder of an

RSA, (the original fund) means a superannuation fund or RSA

that satisfies the following conditions:

(a) the fund or RSA confers on the member or holder equivalent

rights to the rights that the member or holder had under the

original fund in respect of the interest;

(b) before the transfer, the

superannuation provider of the fund

or RSA has agreed with the superannuation provider of the

original fund that the fund or RSA will confer on the member

or holder equivalent rights to the rights that the member or

holder had under the original fund in respect of the interest.

Tax Laws Amendment (2009 Measures No. 6) Act 2010

18 Items 19 and 20 of Schedule 2

Repeal the items.

Other amendments Schedule 4

Employer contributions Part 2

Superannuation Legislation Amendment Bill 2010 No. , 2010 29

Part 2--Employer contributions

Income Tax Assessment Act 1997

19 Paragraph 290-85(1)(b)

Omit "or" (last occurring).

20 Paragraph 290-85(1)(c)

Repeal the paragraph.

21 After subsection 290-85(1)

Insert:

(1AA) Section 290-60 also applies as modified by this section if:

(a) a contribution you make in respect of another person relates

to a period of service during which the other person was your

employee; and

(b) you make the contribution within 4 months after the person

stops being your employee; and

contribution if:

(i) you had made it at a time when the other person was

your employee; and

(ii) the law that applied to your entitlement to the deduction

at that time had been the same as it was at the time you

actually made the contribution.

(1AB) Section 290-60 also applies as modified by this section if:

(a) a contribution you make in respect of another person relates

to a period of service during which the other person was your

employee; and

(b) the contribution relates to a

defined benefit interest of the

other person; and

arm's length with the other person in relation to

the contribution; and

(d) you obtain an

actuary's certificate that:

(i) complies with the requirements (if any) specified by the

regulations for the purposes of this paragraph; and

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

amount required by the relevant

superannuation fund to

meet the fund's liabilities in connection with defined

benefit interests; and

(e) you would have been entitled to a deduction in relation to the

contribution if:

(i) you had made it at a time when the other person was

your employee; and

(ii) the law that applied to your entitlement to the deduction

at that time had been the same as it was at the time you

actually made the contribution.

22 Subparagraph 290-85(1A)(d)(iii)

Repeal the subparagraph, substitute:

(iii) if subsection (1B) or (1C) applies--relates to a period of

service during which the other person was the

company's or entity's employee.

23 After subsection 290-85(1A)

Insert:

(1B) This subsection applies if:

(a) you make the contribution within 4 months after the person

stops being the company's or entity's employee; and

(b) you would have been entitled to a deduction in relation to the

contribution if you had made it while the other person was

the company's or entity's employee.

(1C) This subsection applies if:

(a) the contribution relates to a

defined benefit interest of the

other person; and

(b) you and the company are at

arm's length with the other

person in relation to the contribution; and

actuary's certificate that:

(i) complies with the requirements (if any) specified by the

regulations for the purposes of this paragraph; and

(ii) is to the effect that the contribution does not exceed the

amount required by the relevant

superannuation fund or

RSA to meet the fund's or RSA's liabilities in

connection with defined benefit interests; and

Schedule 4 Other amendments

Part 3 Shortfall interest charge

32 Superannuation Legislation Amendment Bill 2010 No. , 2010

Part 3--Shortfall interest charge

Taxation Administration Act 1953

25 Section 280-102A in Schedule 1 (note)

Omit "and shortfall interest charge becomes due and payable.

Section 292-390 of that Act", substitute "becomes due and payable. See

subsection 204(2A) of the Income Tax Assessment Act 1936 for when

the amount of shortfall interest charge becomes due and payable.

Section 292-390 of the Income Tax Assessment Act 1997".

26 Section 280-102A in Schedule 1 (note)

Omit "subsection 204(2A) of the Income Tax Assessment Act 1936 for

when the amount of shortfall interest charge becomes due and payable.

Section 292-390 of the Income Tax Assessment Act 1997", substitute

"section 5-10 of that Act for when the amount of shortfall interest

charge becomes due and payable. Section 292-390 of that Act".

Note:

The commencement of this item is contingent on the commencement of item 3 of

Schedule 1 to the Tax Laws Amendment (Transfer of Provisions) Act 2010.

Other amendments Schedule 4

Excess contributions tax Part 4

Superannuation Legislation Amendment Bill 2010 No. , 2010 33

Part 4--Excess contributions tax

Income Tax Assessment Act 1997

27 Subsection 292-465(2)

Omit "within".

28 Paragraphs 292-465(2)(a) and (b)

Repeal the paragraphs, substitute:

(a) after all of the contributions sought to be disregarded or

reallocated have been made; and

(b) if you receive an

excess contributions tax assessment for the

financial year--before the end of:

(i) the period of 60 days starting on the day you receive the

assessment; or

(ii) if the Commissioner allows a longer period--that longer

period.

29 At the end of section 292-465

Add:

(8) A determination under this section may be included in a notice of

assessment.

Review of determinations

(9) To avoid doubt:

(a) you may object under section 295-245 against an

excess

contributions tax assessment made in relation to you on the

ground that you are dissatisfied with a determination that you

applied for under this section; and

(b) for the purposes of paragraph (e) of Schedule 1 to the

Administrative Decisions (Judicial Review) Act 1977, the

making of a determination under this section is a decision

forming part of the process of making an assessment of tax

under this Act.

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

Income Tax Assessment Act 1997

30 After section 307-295

Insert:

307-297 Public sector superannuation schemes--elements set by

regulations

(1) This section applies to a

superannuation benefit that is paid from a

public sector superannuation scheme that is not a

constitutionally

protected fund.

(2) Despite any other provision of this Subdivision, the

taxable

component of the

superannuation benefit consists of an element

untaxed in the fund equal to the amount (if any) specified by the

regulations in relation to the benefit for the purposes of this

section.

(3) The amount specified must not be less than the amount that would

be the

element untaxed in the fund under the other provisions of

this Subdivision.

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

(Unclaimed Money and Lost Members) Act

1999

31 Paragraphs 20N(2)(a) and (b)

Repeal the paragraphs, substitute:

(a) the Immigration Secretary (within the meaning of the Income

Tax Assessment Act 1936); or

(b) an APS employee in the Immigration Department (within the

meaning of that Act).

Schedule 4 Other amendments

Part 7 Application and transitional provisions

36 Superannuation Legislation Amendment Bill 2010 No. , 2010

Part 7--Application and transitional provisions

32 Application provision

(1)

The amendments made by Part 1 of this Schedule apply in relation to:

(a) notices given under section 290-170 of the Income Tax

Assessment Act 1997 on or after the commencement of this

item; and

(b) notices of variation given under section 290-180 of that Act

on or after the commencement of this item (whether the

notices being varied were given before, on or after the

commencement of this item).

(2)

The amendments made by Part 2 of this Schedule apply in relation to

contributions made on or after the commencement of this item.

(3)

The amendments made by Part 4 of this Schedule apply in relation to

applications made on or after the commencement of this item.

33 Transitional provision--allowance of extra time to make

applications

From the commencement of this item, treat an allowance:

(a) made under paragraph 292-465(2)(b) of the Income Tax

Assessment Act 1997; and

(b) in force just before the commencement of this item;

as having been made under subparagraph 292-465(2)(b)(ii) of that Act

as substituted by Part 4 of this Schedule.

Commonwealth of Australia Bills

SUPERANNUATION LEGISLATION AMENDMENT BILL 2010