Occupational Superannuation Standards Regulations (Amendment)

Overview

The Occupational Superannuation Standards Regulations (Amendment) 1991 No. 16 was enacted to address an issue arising from a discrepancy in the printed form of the auditor's certificate for superannuation fund returns. The problem was identified after the distribution of forms for the 1989/90 year when it was discovered that the printed certificate on the form did not include all the necessary words as prescribed by regulation. This non-compliance could potentially disadvantage superannuation funds by resulting in higher tax rates under the Income Tax Assessment Act 1936 if the Commissioner could not issue a compliance notice. To resolve this, the Regulations were amended so that certificates printed on the distributed forms would be acceptable, ensuring that trustees could continue their processes without unnecessary delays or additional costs. This amendment was issued by authority of the Treasurer and applies retrospectively to certificates already lodged, providing a clear benefit to the trustees involved.

Scope and Application

The Occupational Superannuation Standards Regulations (Amendment) 1991 No. 16, issued under the authority of the Treasurer, pertains to trustees of superannuation funds in Australia. These regulations amend the Occupational Superannuation Standards Regulations to address deficiencies in the form of the auditor's certificate printed on the approved form of return for the year of income commencing on 1 July 1989. The amendment ensures that the certificate printed on these forms is considered compliant, thereby facilitating the Commissioner's ability to issue notices of compliance to superannuation funds. This amendment is crucial as the absence of a compliance notice can result in higher taxation for funds under the Income Tax Assessment Act 1936. The regulation's amendment applies retroactively from 1 July 1990 to accommodate certificates already lodged, ensuring that it confers a benefit to the trustees of such funds without contravening the Acts Interpretation Act 1901.

Key Provisions

The Occupational Superannuation Standards Regulations (Amendment) 1991 No. 16, issued under the authority of the Treasurer, amends the Occupational Superannuation Standards Regulations to address an issue with the auditor's certificate on the approved form of return for the 1989/90 year. Under section 12(1) of the Occupational Superannuation Standards Act 1987, trustees of a superannuation fund are required to provide the Insurance and Superannuation Commissioner with certain information, including a certificate by an approved auditor in the prescribed form, to obtain a notice of compliance from the Commissioner. Regulation 24 of the Occupational Superannuation Standards Regulations specifies that this certificate must be in accordance with Form 2 in the schedule to those regulations. However, it was found that the printed form of return did not include all the required words in the auditor's certificate, leading to non-compliance with the prescribed form. The amendment to regulation 24 ensures that the auditor's certificate printed on the form distributed for the 1989/90 year will be considered an acceptable form of certificate for the purposes of section 12 of the Act. This amendment aims to mitigate the practical effect of the missing words on the printed form, which prevented the Commissioner from issuing notices of compliance to affected funds. Consequently, these funds would be taxed at a higher rate under the Income Tax Assessment Act 1936. The amendment is effective from 1 July 1990, applying retrospectively to certificates already lodged with the Commissioner, and is not considered a breach of the Acts Interpretation Act 1901 as it provides a benefit to the trustees of the funds. The amendment imposes an obligation on the trustees of superannuation funds to ensure that the auditor's certificate on their approved form of return includes all the required words as prescribed by Form 2 in the schedule to the Occupational Superannuation Standards Regulations. While the Commissioner's Office has requested the insertion of the missing words through an information circular, the amendment ensures that any forms already lodged without the correct certificate will be accepted as compliant. Trustees must also be aware of the importance of the correct certification process to avoid potential tax implications. Additionally, the amendment seeks to prevent the unnecessary costs and criticism that could arise from returning and amending already lodged forms. There are no specific offences, penalties, or civil/criminal consequences outlined in the amendment itself. However, trustees who fail to provide the correct form of auditor's certificate may face tax implications under the Income Tax Assessment Act 1936, where non-compliant funds are taxed at a higher rate. The amendment is designed to alleviate this issue by accepting the printed form as compliant, thus preventing any such penalties.