Commonwealth Consolidated Acts

SUPERANNUATION LEGISLATION AMENDMENT ACT 2010 - SCHEDULE 4

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:

  (c)   after making your contribution, all of the * 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:

  (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:

8   Subsection 295 - 190(1) (after table item   2)

Insert:

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)".

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).

15   Subsection 295 - 490(1) (cell at table item   2, column headed "Can deduct:")

Repeal the cell, substitute:

16   Subsection 295 - 490(1) (after table item   2)

Insert:

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.

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

  (c)   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.

  (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

  (c)   you are at * 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

  (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

  (c)   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

  (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

  (d)   you would have been entitled to a deduction in respect of the contribution if you had made it while the other person was the company's or entity's employee.

24   Paragraph 290 - 85(3)(a)

After "subsection   (1)", insert "or (1AA)".

Part   3 -- Shortfall interest charge

Taxation Administration Act 1953

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

Omit "and" (first occurring), substitute "becomes due and payable. See section   5 - 10 of that Act for when the amount of".

Part   4 -- Excess contributions tax

Income Tax Assessment Act 1997

26   Subsection 292 - 465(2)

Omit "within".

27   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.

28   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   292 - 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.

Part   5 -- Public sector defined benefit schemes

Income Tax Assessment Act 1997

29   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.

Part   6 -- Amendment of the Superannuation (Unclaimed Money and Lost Members) Act 1999

30   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).

Part   7 -- Application and transitional provisions

31   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.

32   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.

Notes to the Superannuation Legislation Amendment Act 2010

Note 1

The Superannuation Legislation Amendment Act 2010 as shown in this compilation comprises Act No.   117 , 20 10 amended as indicated in the Tables below.

Table of Acts

Table of Amendments