Superannuation Industry (Supervision) Act approval of provision of benefits (No. 1) 2007

Administered by Department of the Treasury

Legislation au F2007L04697 In force Legislative Instrument

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Superannuation Industry (Supervision) Act approval of provision of benefits (No.1) 2007

 

Explanatory Statement

 

General Outline of Instrument

  1. This determination is made under subparagraph 62(1)(b)(v) of the Superannuation Industry (Supervision) Act 1993 (the SISA) and under subsection 33(3) of the Acts Interpretation Act 1901
  2. This determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Date of effect

3.      This instrument comes into force from the day after registration on the Federal Register of Legislative Instruments.

 

What this instrument is about

 

4.      The instrument enacts an approval for funds under the Australian Taxation Office (the ATO) jurisdiction. This approval applies only to the trustees of self managed superannuation funds regulated by the ATO. The instrument approves the provision of benefits for, or in respect of, each member of a fund which Part 6 of the Superannuation Industry (Supervision) Regulations 1994 (the SISR) permits or requires to be paid when, to the extent that, and to the persons to whom, the fund is permitted or required under Part 6 of the SISR to pay them.  To avoid doubt, the instrument makes clear that this includes situations where benefits are provided in accordance with Part 6 of the SISR as modified by the ATO under section 332 of the SISA and/or the provision has been facilitated by an exemption made by the ATO under section 328 of the SISA.

 

What is the effect of this instrument

5.      The effect of this instrument will ensure that the trustees of a self-managed superannuation fund do not face civil or criminal consequences and that the funds status as a complying fund is not at risk where payments are made in circumstances, and to persons, permitted by Part 6 of the SISR.

 

Background

6.      The sole purpose requirements in section 62 of the SISA limit the provision of superannuation benefits by regulated superannuation funds to a range of prescribed or approved retirement or retirement-related circumstances under the core and ancillary purposes. The core purposes set out the reasons for which a fund may exist and pay benefits.  They operate in conjunction with the payment standards. Ancillary purposes are those purposes for which a superannuation fund may be maintained under paragraph 62(1)(b) of the SISA.  A regulated superannuation fund maintained for an ancillary purpose must also be maintained for at least one of the core purposes set out in paragraph 62(1)(a) of the SISA. Under subparagraph 62(1)(b)(v) of the SISA, a fund may provide other ancillary benefits not specified in the prescribed core or ancillary purposes where the fund has obtained the Regulator’s written approval.

7.      Both the (the ATO) and the Australian Prudential Regulation Authority (APRA) have the power to approve other ancillary purposes in writing under subparagraph 62(1)(b)(v) with respect to the funds that they regulate.  This power was previously held by the former Insurance and Superannuation Commissioner whose 1 July 1997 approval of ancillary purposes for which benefits may be provided continued to have effect after the ATO and APRA took over the administration of the SISA from the ISC. APRA has advised that it has revoked the previously issued instrument and has issued a replacement instrument which has effect with respect to the funds that APRA regulates.

 

Operation of this instrument

 

8.      The approval of provision of benefits under subparagraph 62(1)(b)(v) of the SISA comes into force from the day after the date of registration on the Federal Register of Legislative Instruments.

 

The ancillary purpose approval relating to the provision of benefits under Part 6 of the SISR addresses tensions which might otherwise arise between the sole purpose test of section 62 and the payment standards of Part 6.  For example:

  • the sole purpose provisions allow for payment of benefits only to members, dependants or the legal personal representative of the member, whereas regulation 6.22 authorises payment of benefits in certain, very limited, circumstances to any individual;
  • the sole purpose test may prohibit payment of benefits that had become unrestricted non-preserved benefits because of termination of employment, but that had been rolled over to a second fund. The benefits would not then be payable from the second fund owing to the terms of paragraph 62(1)(b)(i), which apply only to benefits to which the relevant employer had contributed; and
  • the sole purpose test may prohibit payment of a benefit under $200 to a lost member who is found. The benefit may be paid under item 111 of the Conditions of release under Schedule 1 of the SISR.

 

However, the ancillary purpose approval ensures these benefits remain payable at any time.

 

The approval of benefits also recognises that the application of payment standards under Part 6 of the SISR may be affected by the ATO’s powers of exemption and modification. Part 6 of the SISR is a ‘modifiable provision’ under paragraph 327(c) of the SISA, as the payment standards of Part 6 are regulations made for the purposes of Part 3 of the Act.

 

Consultation

9.      Section 18 of the Legislative Instruments Act 2003 specifically provides for circumstances where consultation may not be necessary or appropriate.  One of those circumstances is where the instrument is considered minor or machinery in nature, and does not substantially change the law. 

10.  This instrument resolves an inconsistency between the SISA and the SISR by ensuring that payments made in accordance with the standards set in the SISR do not result in a contravention of the SISA.  It does not alter the application of the law and neither restricts nor extends the rights of fund trustees beyond the standards set in the SISA and the SISR.

11.  As a result limited consultation was undertaken.  The views of APRA were sought to ensure consistency as between the regulators of superannuation funds.  The views of the Treasury were also sought.

 

Deputy Commissioner of Taxation

Date: 6 December 2007

 

Legislative references:

Superannuation Industry (Supervision) Act 1993

Legislative Instruments Act 2003

Acts Interpretation Act 1901

Superannuation Industry (Supervision) Regulations 1994

 

Other references:

 Australian Prudential Regulation Authority

 Federal Register of Legislative Instruments

Overview

The Superannuation Industry (Supervision) Act Approval of Provision of Benefits (No.1) 2007 was enacted to address inconsistencies between the Superannuation Industry (Supervision) Act 1993 (SISA) and the Superannuation Industry (Supervision) Regulations 1994 (SISR). This legislative instrument, approved by the Australian Taxation Office (ATO), ensures that trustees of self-managed superannuation funds under ATO regulation can make payments in accordance with SISR standards without risking the fund’s status as a complying fund or facing civil or criminal penalties. The instrument clarifies that benefits can be provided in specific circumstances permitted by Part 6 of the SISR, including those modified by the ATO or facilitated by an exemption. This approval resolves tensions between the sole purpose test and the payment standards, allowing for payments to various individuals and certain benefits that might otherwise be restricted under the SISA. The instrument was developed with limited consultation, primarily with the Australian Prudential Regulation Authority and the Treasury, to maintain consistency and avoid altering the law.

Scope and Application

The Superannuation Industry (Supervision) Act approval of provision of benefits (No.1) 2007, made under the Superannuation Industry (Supervision) Act 1993 and the Acts Interpretation Act 1901, serves to approve the provision of benefits for members of self-managed superannuation funds regulated by the Australian Taxation Office (ATO). This legislative instrument applies specifically to the trustees of these self-managed superannuation funds, ensuring that they can make payments to fund members in accordance with Part 6 of the Superannuation Industry (Supervision) Regulations 1994 without facing civil or criminal consequences or risking the fund's status as a complying fund. The instrument clarifies that these payments are permissible under the regulations, even where the benefits are provided in accordance with modifications made by the ATO or facilitated by an exemption granted by the ATO under sections 332 and 328 of the Superannuation Industry (Supervision) Act 1993. This ensures that the fund remains compliant while addressing potential inconsistencies between the sole purpose requirements and the payment standards outlined in the regulations. The instrument does not substantially alter existing law but provides necessary clarification to prevent conflicts between the sole purpose test and the payment standards, thereby maintaining the integrity of the superannuation system.

Key Provisions

The Superannuation Industry (Supervision) Act approval of provision of benefits (No.1) 2007 provides a specific approval for self-managed superannuation funds under the Australian Taxation Office (ATO) jurisdiction. This legislative instrument ensures that trustees of these funds are not at risk of civil or criminal consequences when they make payments in accordance with the payment standards set out in Part 6 of the Superannuation Industry (Supervision) Regulations 1994 (SISR) (sections 4 and 5). This includes situations where payments have been modified by the ATO under section 332 of the Superannuation Industry (Supervision) Act 1993 (SISA) or facilitated by an exemption under section 328 of the SISA. The approval aligns with the sole purpose requirements outlined in section 62 of the SISA, which permit funds to provide benefits in certain retirement or retirement-related circumstances. By approving these payments, the instrument ensures that the fund remains a complying fund and avoids potential conflicts between the sole purpose test and the payment standards. This is particularly relevant in scenarios where the sole purpose test may restrict payments that the payment standards allow, such as payments to any individual under certain circumstances or payments of less than $200 to a found lost member (section 8). The obligations imposed by this instrument primarily rest on the trustees of the self-managed superannuation funds regulated by the ATO. Trustees must ensure that any payments made under this approval comply with the conditions specified in Part 6 of the SISR, including any modifications or exemptions applied by the ATO. This means they must make payments in accordance with the approved standards to avoid any risk to the fund's status as a complying fund. In terms of consequences for breach, the Act does not explicitly state penalties for non-compliance with this approval. However, trustees who fail to adhere to the payment standards set out in the SISR, as modified or exempted by the ATO, may face civil or criminal consequences under the SISA. These could include fines and imprisonment, depending on the severity of the breach. The exact penalties would be determined by the courts based on the specific circumstances of the case.

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Superannuation Law
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Definitions & Interpretation
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