Retirement Savings Accounts Amendment Regulations 2005 (No. 5) (Cth)

Retirement Savings Accounts Amendment Regulations 2005 (No. 5)¹

Select Legislative Instrument 2005 No. 331

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Retirement Savings Accounts Act 1997.

Dated 15 December 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

MAL BROUGH

Minister for Revenue and Assistant Treasurer

Name of Regulations

These Regulations are the Retirement Savings Accounts Amendment Regulations 2005 (No. 5).

Commencement

These Regulations commence as follows:

(a)on the day after they are registered — regulations 1 to 3 and Schedule 1;

(b)on 1 January 2006 — Schedule 2.

Amendment of Retirement Savings Accounts Regulations 1997

Schedules 1 and 2 amend the Retirement Savings Accounts Regulations 1997.

Schedule 1 Amendments commencing on day after registration

(regulation 3)

[1] Subregulation 4.01 (2), definition of eligible temporary resident visa

substitute

eligible temporary resident visa means a visa:

(a)of one of the subclasses mentioned in Part 1 of Schedule 3, within the meaning of Part 2 of Schedule 1 to the Migration Regulations 1994; or

(b)that is a special purpose visa mentioned in Part 2 of Schedule 3, declared under subparagraph 33 (2) (b) (ii) of the Migration Act 1958;

that is held by a person who is not a New Zealand citizen.

Note Some of the visas mentioned in Schedule 3 no longer exist. However, they remain relevant for regulation 4.23A.

[2] Schedule 3, before item 1

insert

Part 1 Visa subclasses

[3] Schedule 3, item 110, note

omit

[4] Schedule 3, after item 110

insert

Part 2 Special purpose visas

Special purpose visa taken to have been granted to a person declared by the Minister for Immigration and Multicultural and Indigenous Affairs under subparagraph 33 (2) (b) (ii) of the Migration Act 1958 on 8 October 2005.

Note The Minister’s declaration relates to a person on behalf of whom an application for the Melbourne 2006 Commonwealth Games accreditation has been received by the Melbourne 2006 Commonwealth Games Corporation.

General Note Some of the visas mentioned in this Schedule no longer exist. However, they remain relevant for regulation 4.23A.

Schedule 2 Amendments commencing on 1 January 2006

(regulation 3)

[1] Subregulation 1.03 (1), after definition of Allocated pension

insert

allot, for Division 4.5, means to credit an amount from an RSA holder’s account to another account in the regulated superannuation fund held by, or created for, the receiving spouse otherwise than by transfer or roll-over.

[2] Subregulation 1.03 (1), after definition of protected RSA holder

insert

receiving spouse has the meaning given by regulation 4.43.

[3] Paragraph 3.05 (c)

omit

Part 4A.

insert

Part 4A; or

[4] After paragraph 3.05 (c)

insert

(d)transferred, rolled over or allotted under Division 4.5.

[5] Regulation 4.17

substitute

4.17Contributions and benefits taken to be preserved benefits

(1)Contributions made, or benefits rolled over or transferred, to an RSA are taken to be preserved benefits for the purposes of this Division unless and until the RSA provider is satisfied that they are not preserved benefits.

(2)Benefits rolled over, transferred or allotted under Division 4.5 to an RSA held by, or created for, a receiving spouse are taken to be preserved benefits for the purposes of this Division.

[6] Subparagraph 4.20 (1) (a) (ii)

substitute

(ii)being rolled over or transferred under section 50 of the Act or Division 4.4 or 4.5 or Part 4A; or

(iii)being allotted under Division 4.5; and

[7] After Division 4.4

insert

Division 4.5 Spouse contributions-splitting amounts

4.37Interpretation

In this Division:

applicant means a RSA holder who makes an application under subregulation 4.41 (1).

eligible non-resident non-complying superannuation fund has the meaning given by section 27A of the Income Tax Assessment Act 1936.

maximum splittable amount, in relation to a financial year, means:

(a)for taxed splittable contributions — 85% of the amount of the taxed splittable contributions made in the financial year; and

(b)for untaxed splittable contributions — 100% of the amount of the untaxed splittable contributions made in the financial year.

post‑June 83 component, in relation to an ETP, has the meaning given by section 27A of the Income Tax Assessment Act 1936.

preservation age has the meaning given by regulation 4.01.

relevant financial year, in relation to an application made under:

(a)paragraph 4.41 (1) (a), means the last financial year that ended before the date of the application; or

(b)paragraph 4.41 (1) (b), means the financial year in which the application is made.

splittable contribution has the meaning given by regulation 4.39.

taxed splittable contribution has the meaning given by regulation 4.38.

undeducted contributions, in relation to an ETP, has the meaning given by section 27A of the Income Tax Assessment Act 1936.

untaxed splittable contribution has the meaning given by regulation 4.38.

4.38Meaning of taxed splittable contribution and untaxed splittable contribution

(1)Subject to subregulation (2), a taxed splittable contribution is a contribution that is:

(a)a taxable contribution for section 274 of the Income Tax Assessment Act 1936; and

(b)made on or after 1 January 2006.

(2)Each of the following is not a taxed splittable contribution:

(a)an amount that has been rolled over, transferred or allotted;

(b)a lump sum payment from an eligible non-resident non‑complying superannuation fund.

(3)Subject to subregulation (4), an untaxed splittable contribution is a contribution made by an RSA holder or by another person to an RSA where that contribution is not a taxable contribution under section 274 of the Income Tax Assessment Act 1936.

(4)Each of the following is not an untaxed splittable contribution:

(a)a payment made to an RSA by an employer, or by another person under an agreement to which the employer is a party, for the purpose of providing RSA benefits for, or for dependants of, an employee of the employer;

(b)an amount that has been rolled over, transferred or allotted;

(c)a lump sum payment from an eligible non-resident non‑complying superannuation fund.

4.39Meaning of splittable contribution

(1)Subject to subregulation (2), a splittable contribution is a contribution to an RSA on or after 1 January 2006.

(2)Each of the following, received for an RSA holder is not a splittable contribution:

(a)an amount that has been rolled over or transferred;

(b)an amount allotted under this Division;

(c)a lump sum payment from an eligible non-resident non‑complying superannuation fund;

(d)an amount or payment mentioned in paragraph (a) or (jaa) of the definition of eligible termination payment in subsection 27A (1) of the Income Tax Assessment Act 1936.

4.40Application of Division 4.5

This Division does not apply to an RSA interest:

(a)that is subject to a payment split; or

(b)on which a payment flag (within the meaning of Part VIIIB of the Family Law Act 1975) is operating.

4.41Application to roll over, transfer or allot an amount of contributions

(1)An RSA holder may, in a financial year, apply to the RSA provider to roll over, transfer or allot an amount of benefits, for the benefit of the RSA holder’s spouse, that is equal to an amount of the splittable contributions made by, for, or on behalf of the RSA holder in:

(a)the last financial year that ended before the application; or

(b)the financial year in which the application is made — where the RSA holder’s entire benefit is to be rolled over or transferred in that year.

Note This arrangement applies at the request of the RSA holder, and is not an arrangement by which the RSA holder’s interest is subject to a payment split under Part VIIIB of the Family Law Act 1975. Part 4A of these Regulations deals with those payment splitting arrangements.

(2)However, the application is taken to be invalid:

(a)if in the financial year in which it is made:

(i)the RSA holder has already made an application in respect of the relevant financial year; and

(ii)the RSA provider:

(A)is considering the application; or

(B)has given effect to that application; or

(b)if the amount of benefits to which the application relates exceeds the maximum splittable amount; or

(c)subject to subregulation (3); if:

(i)the RSA holder’s spouse is aged 65 years or more; or

(ii)both:

(A)the RSA holder’s spouse is aged between the relevant preservation age and 65 years; and

(B)the RSA holder’s spouse satisfies item 101 conditions of release, set out in Schedule 2, at the time of application.

(3)Despite paragraph (2) (c), an application is not taken to be invalid under that paragraph if the application includes a statement by the RSA holder’s spouse to the effect that the spouse:

(a)is aged less than the relevant preservation age; or

(b)both:

(i)is aged between the relevant preservation age and 65 years; and

(ii)does not satisfy item 101 conditions of release, set out in Schedule 2.

(4)The applicant must specify, in the application, the amount of the benefit from the following:

(a)the RSA holder’s taxed splittable contributions;

(b)the RSA holder’s untaxed splittable contributions;

that the RSA holder seeks to split for the benefit of the RSA holder’s spouse.

Note An amount rolled over, transferred or allotted under this Division is a contributions-splitting amount (within the meaning of the Income Tax Assessment Act 1936) — see the definition of contributions-splitting ETP in subsection 27A (1) of that Act and regulation 98B of the Income Tax Regulations 1936.

4.42Decision on application

(1)An RSA provider may accept an application made under subregulation 4.41 (1) if all of the following conditions are satisfied:

(a)the application complies with regulation 4.41;

(b)the RSA provider has no reason to believe the statement mentioned in subregulation 4.41 (3) is untrue;

(c)the amount to which the application relates is not more than the maximum splittable amount for the relevant financial year.

Note An RSA provider may voluntarily provide a service that allows an RSA holder to roll over, transfer or allot an amount to the applicant’s spouse (a splittable contribution). The RSA provider is not required to offer the service.

(2)An RSA provider that accepts an application in accordance with subregulation (1) must as soon as practicable, and in any case within 90 days after receiving the application, roll over, transfer or allot the amount of benefits for the benefit of the receiving spouse.

(3)If the application requests a split of untaxed splittable contributions the RSA provider can only give effect to the application where the amount specified in the application is less than or equal to the undeducted contributions that would form part of the ETP that would be payable if the RSA holder withdrew the RSA holder’s entire benefits at the time of the RSA provider giving effect to the application.

(4)If the application requests a split of taxed splittable contributions the RSA provider can only give effect to the application where the amount specified in the application is less than or equal to the post-June 83 component that would form part of the ETP that would be payable if the RSA holder withdrew the RSA holder’s entire benefits at the time of the RSA provider giving effect to the application.

4.43Receiving spouse

For this Part, if a RSA provider accepts an application made under subregulation 4.41 (1), the applicant’s spouse is a receiving spouse.

Note

All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See