Retirement Benefits Amendment Regulations 2007

Retirement Benefits Amendment Regulations 2007

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Retirement Benefits Act 1993 .

25 June 2007

W. J. E. COX

Governor

By His Excellency's Command,

MICHAEL AIRD

Treasurer

1.   Short title

These regulations may be cited as the Retirement Benefits Amendment Regulations 2007 .

2.   Commencement

These regulations take effect on 1 July 2007, but if, by 1 July 2007, a notice is not published in the Gazette under section 29 of the Retirement Benefits Act 1993 to the effect that a draft of these regulations has been approved by both Houses of Parliament, these regulations are taken to have taken effect on 1 July 2007.

3.   Principal Regulations

In these regulations, the Retirement Benefits Regulations 2005 are referred to as the Principal Regulations.

4.    Regulation 3 amended (Interpretation)

Regulation 3(1) of the Principal Regulations is amended as follows:

(a) by inserting the following definition after the definition of amalgamated contributor :

assessable income has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

(b) by inserting the following definition after the definition of compulsory preservation account :

concessional contributions has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

(c) by omitting the definition of contributions tax and substituting the following definition:

contributions tax means an amount of tax that is required to be paid on superannuation contributions, or roll-over superannuation benefits, in accordance with the Income Tax Assessment Act 1997, and the Income Tax Rates Act 1986, of the Commonwealth;

(d) by inserting the following definitions after the definition of contributory scheme :

directed termination payment has the same meaning as in section 82.10F of the Income Tax (Transitional Provisions) Act 1997 of the Commonwealth;

element taxed in the fund has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

element untaxed in the fund has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

(e) by omitting the definition of eligible termination payment ;

(f) by inserting the following definitions after the definition of member contributions :

non-concessional contributions has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

non-concessional contributions cap has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

(g) by inserting the following definition after the definition of notional surchargeable contributions factor :

notional taxed contributions has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

(h) by inserting the following definition after the definition of rolled over :

roll-over superannuation benefit has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

(i) by omitting the definition of spouse contributions and substituting the following definition:

spouse contributions means voluntary contributions paid on behalf of a spouse;

(j) by inserting the following definitions after the definition of subfund :

superannuation benefit has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

superannuation contributions means –

(a) employer superannuation contributions paid or payable under these regulations or the Trust Deed; and

(b) salary sacrifice contributions; and

(c) additional employer contributions; and

(d) voluntary contributions; and

(e) spouse contributions; and

(f) member contributions that have not been included in the assessable income of the Fund;

(k) by inserting the following definition after the definition of surviving partner :

tax free component has the same meaning as in the Income Tax Assessment Act 1997 of the Commonwealth;

(l) by omitting the definition of voluntary contributions and substituting the following definition:

voluntary contributions means an amount paid under regulation 63 to an investment account established or maintained under regulation 62 .

5.    Regulation 21 amended (Operation of Fund)

Regulation 21(1)(a) of the Principal Regulations is amended by omitting "eligible termination payments" and substituting "roll-over superannuation benefits, directed termination payments".

6.    Regulation 31 amended (Purchase of certain periods of service)

Regulation 31 of the Principal Regulations is amended by inserting after subregulation (5) the following subregulation:

(5A)  A contributor may not enter into an arrangement under subregulation (3) if to do so would cause the contributor to exceed his or her non-concessional contributions cap for a financial year.

7.    Regulation 33 amended (Obligation of certain employees to contribute)

Regulation 33 of the Principal Regulations is amended as follows:

(a) by inserting the following subregulation after subregulation (5) :

(5A)  A contributor may not increase his or her rate of contribution under subregulation (3) or (4) if to do so would cause the contributor to exceed his or her non-concessional contributions cap for a financial year.

(b) by inserting the following subregulation after subregulation (6) :

(6A)  A contributor may not elect to pay contributions retrospectively if –

(a) to do so would require the contributor to enter into an arrangement under subregulation (6) for the payment of an amount to the Fund by the contributor; and

(b) the payment of that amount to the Fund by the contributor would cause the contributor to exceed his or her non-concessional contributions cap for a financial year.

8.    Regulation 57 amended (Interim invalidity pensions)

Regulation 57(1) of the Principal Regulations is amended as follows:

(a) by omitting "If" and substituting "Subject to any reduction or suspension under subregulation (4) , if";

(b) by omitting paragraph (b) and substituting the following paragraphs:

(b) that pension is payable from the later of the following days:

(i) the day on which the Board receives the application for an invalidity benefit under regulation 118 ;

(ii) the day after the last day of the period of 30 days' sick leave without pay; and

(c) that pension is payable for a period determined by the Board not exceeding 2 years.

9.    Regulation 63 amended (Payment of voluntary contributions and spouse contributions into investment account)

Regulation 63 of the Principal Regulations is amended by inserting after subregulation (5) the following subregulations:

(6)  A person must not make voluntary contributions or spouse contributions if the person knows that in doing so he or she would exceed his or her non-concessional contributions cap for a financial year.

(7)  If the Board becomes aware that a person has exceeded his or her non-concessional contributions cap by making voluntary contributions or spouse contributions, the Board must, within 30 days or such later period as is specified by the law of the Commonwealth –

(a) refund the excess non-concessional contributions to the person; and

(b) debit, by the amount of the refund, the investment account to which the voluntary contributions or spouse contributions were paid.

(8)  The Board must not accept voluntary contributions, or spouse contributions, from a person unless the person has provided his or her tax file number to the Board in a manner approved by the Board.

10.    Regulation 65 amended (Inward portability)

Regulation 65 of the Principal Regulations is amended by omitting subregulation (1) and substituting the following subregulation:

(1)  A person to whom regulation 62 applies or the spouse of any such person may pay or cause to be paid into the Fund all or part of a benefit –

(a) that the person or spouse is entitled to receive as a member of another superannuation scheme or fund; or

(b) that is a roll-over superannuation benefit; or

(c) that is a directed termination payment.

11.    Regulation 79 amended (Conversion of lump sum benefits to pensions)

Regulation 79 of the Principal Regulations is amended by omitting subregulation (15) and substituting the following subregulation:

(15)  A benefit payable under regulation 130(1)(b) or (c) or regulation 130(2) is not to be converted to a pension.

12.    Regulation 88A inserted

After regulation 88 of the Principal Regulations , the following regulation is inserted in Part 8:

88A.   Calculation of notional taxed contributions

For the purposes of this Part, the Board must calculate for each contributor the notional taxed contributions for a financial year having regard to Subdivision 292-D of the Income Tax Assessment Act 1997 of the Commonwealth.

13.    Regulation 91 substituted

Regulation 91 of the Principal Regulations is rescinded and the following regulation is substituted:

91.   Contributions and benefit entitlements subject to taxation

(1)  For the purpose of taxation of superannuation contributions under the law of the Commonwealth, the Board is to treat –

(a) salary sacrifice contributions and additional employer contributions as concessional contributions; and

(b) member contributions that have been included in the assessable income of the Fund as concessional contributions; and

(c) member contributions that have not been included in the assessable income of the Fund as non-concessional contributions; and

(d) voluntary contributions that have not been included in the assessable income of the Fund as non-concessional contributions; and

(e) spouse contributions that have not been included in the assessable income of the Fund as non-concessional contributions; and

(f) the element untaxed in the fund of a roll-over superannuation benefit as assessable income of the Fund; and

(g) the element untaxed in the fund of a benefit transferred under regulation 67(5) as assessable income of the Fund.

(2)  The Board, having regard to the law of the Commonwealth, must –

(a) establish and maintain policies and administrative procedures with respect to the taxation of –

(i) superannuation contributions; and

(ii) superannuation benefits; and

(b) determine, from time to time –

(i) the proportion of a superannuation benefit that is to be treated by the Board as an element untaxed in the fund for the purposes of the Income Tax Assessment Act 1997 of the Commonwealth; and

(ii) the proportion of a superannuation benefit that is to be treated by the Board as an element taxed in the fund for the purposes of that Act; and

(iii) the proportion of a superannuation benefit that is to be treated by the Board as a tax free component for the purposes of that Act.

(3)  The Board, in accordance with the law of the Commonwealth, must –

(a) deduct from the following all amounts required to be paid as taxation under the law of the Commonwealth:

(i) superannuation contributions;

(ii) roll-over superannuation benefits;

(iii) benefits transferred under regulation 67(5) ;

(iv) superannuation benefits; and

(b) remit those amounts to the Taxation Commissioner.

14.    Regulation 131 amended (Duties of responsible officers and Board to provide information)

Regulation 131 of the Principal Regulations is amended as follows:

(a) by omitting from subregulation (2)(a)(ix) "number, if the contributor has given permission for it to be provided to the Board" and substituting "number";

(b) by inserting the following subregulation after subregulation (2) :

(2A)  On request from the Board, the responsible officer of an Agency must provide the Board with the tax file number of a contributor who is employed in that Agency.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 28 June 2007

These regulations are administered in the Department of Treasury and Finance.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations amend the Retirement Benefits Regulations 2005 by –

(a) making changes consequent on the enactment of the Tax Laws Amendment (Simplified Superannuation) Act 2007 of the Commonwealth; and

(b) making minor miscellaneous amendments.