Commonwealth Numbered Regulations - Explanatory Statements

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OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT) 1991 NO. 16

STATUTORY RULES 1991 No. 16

OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS (AMENDMENT)

ISSUED BY AUTHORITY OF THE TREASURER

Subsection 12(1) of the Occupational Superannuation Standards Act 1987 (the Act) provides that where, after the year of income of a superannuation fund, the trustees of the fund give to the Insurance and Superannuation Commissioner (the Commissioner) certain information in relation to the year of income, the Commissioner shall give a notice to the trustees stating whether the Commissioner is satisfied that the fund satisfied the superannuation fund conditions in relation to the year of income. For the Commissioner to give such a notice, the trustees are required to provide information in an approved form of return, a certificate by the trustees in the prescribed form, a certificate by an approved auditor in the prescribed form, and the prescribed application fee.

The form of certificate by an approved auditor is prescribed by regulation 24 of the Occupational Superannuation Standards Regulations as being in accordance with Form 2 in the schedule to those regulations.

For the convenience of auditors the certificate in the words prescribed by Form 2 of the schedule is printed on the approved form of return so that the only requirement to complete the certificate is the signature of an approved auditor.

Following the printing and distribution of the form of return approved for the year of income commencing on 1 July 1989 (the 1989/90 year) it was discovered that several words of the prescribed auditor's certificate were not in the certificate on the form.

The Commissioner has had legal advice that the certificate as printed is not in substantial compliance with the prescribed form.

The Office of the Commissioner has issued an information circular to the superannuation industry requesting insertion of the words missing from the certificate on the form.

However most of the forms lodged to date for the 1989/90 year do not include certificates with the missing words added. There also remains the possibility that other forms yet to be lodged will not include the words in the certificate through ignorance of the information circular.

The practical effect is that the Commissioner is unable to give a notice of compliance to any of these funds unless they provide the correct form of auditor's certificate. This has significant potential to disadvantage these funds because the Income Tax Assessment Act 1936 provides that superannuation funds without a notice of compliance are taxed at a higher rate.

It is not feasible for the Commissioner's Office to return all these forms. In addition there would be costs to the superannuation industry in amending the certification of those forms already lodged which would lead to criticism of wasteful procedures.

The Occupational Superannuation Standards Regulations have therefore been amended so that the auditor's certificate printed on the form distributed for the purpose of the 1989/90 year will be an acceptable form of certificate for the purpose of Section 12 of the Act.

The amendment to regulation 24 of the Occupational Superannuation Standards Regulations ensures that a certificate printed on those forms is effective for all purposes.

The amendment is effective from 1 July 1990 so that it applies to certificates that have already been lodged with the Commissioner. The retrospective application of the amendment is not in breach of the Acts Interpretation Act 1901 as it clearly confers a benefit on the trustees of such funds.

Insurance and Superannuation Commission

CANBERRA