Commonwealth Numbered Regulations

1994 No. 57 SUPERANNUATION INDUSTRY (SUPERVISION) REGULATIONS - REG 5.05

5.05. (1) Subject to this regulation, contributions to a regulated
superannuation fund are taken to be mandated employer contributions.

(2) If:

   (a)  at least 1 year has elapsed since the fund received the contributions;
        and

   (b)  the trustee:

        (i)    is satisfied that the contributions are not in fact mandated
               employer contributions; and

        (ii)   decides not to continue to treat the contributions as mandated
               employer contributions; subregulation (1) ceases to apply to
               the contributions.

(3) If:

   (a)  less than 1 year has elapsed since the fund received the
        contributions; and

   (b)  the trustee is satisfied that the contributions are not in fact
        mandated employer contributions; subregulation (1) ceases to apply to
        the contributions.

(4) The trustee has power to make a decision of the kind mentioned in
subparagraph 2 (b) (ii) despite anything in the governing rules of the fund.
(EXAMPLE OF THE APPLICATION OF THIS REGULATION:
A trustee of a fund may receive a non-mandated employer contribution from an
employer-sponsor of the fund that the trustee does not know is a non-mandated
employer contribution (i.e. a contribution not made in satisfaction of the
employer-sponsor's superannuation guarantee or award obligation).
Upon acceptance, the contribution will be taken to be a mandated employer
contribution and therefore subject to the minimum benefits standards.
From this point, one of three circumstances may apply:

   (a)  the trustee may become aware in the first year after the contribution
        was received that the contribution is a non-mandated
        employer contribution, and, if this is the case, the trustee must
        treat the contribution as a non-mandated employer contribution; or

   (b)  the trustee may become aware more than a year after the contribution
        was received that the contribution is a non-mandated
        employer contribution, and, if this is the case, the trustee may
        continue to treat the contribution as a mandated employer contribution
        instead of making corrections to reflect the change; or

   (c)  the trustee may never become aware that the contribution is a
        non-mandated employer contribution, and, if this is the case, the
        contribution will always be taken to be a mandated
        employer contribution.)