Question 14 - On what date did the entity come into existence?
For funds established by Commonwealth, state or territory statute, provide the date on which the first contribution was made.
For funds other than those established under Commonwealth, state or territory statutes, a super fund comes into existence after the trust deed has been signed and property has been set apart for the benefit of identified members. For example, when the fund receives its first contribution. In accordance with legal practice, this most commonly occurs on the same day as the trust deed is executed and therefore cannot be a future date. For more information, see Income Tax Ruling TR 2008/9.
Question 17 - Is the entity owned or controlled by Commonwealth, state, territory or local government?
This question deals with effective control of the entity by Commonwealth, state, territory or local governments.
Effective control can be exercised through majority ownership of voting shares, through specific legislation, or by way of a particular administrative arrangement.
Government control refers to a government department's ability to influence the operations of the entity where the government has the majority controlling interest. This control is more than just the general legislative or regulatory power the department has on all funds or trusts.
Majority government funding is not a sufficient test to determine government control. An entity that receives all its funding from government and has its work program set by government (in the application of accountability for the funding received), is not government controlled. The government must also have the power to control the entity through majority ownership, specific legislation or the right to appoint and remove a majority of the controlling body's directors.
Question 18 - Is the entity an Australian super fund for tax purposes?
A super fund is an Australian super fund for the income year if at a time during that income year:
- the fund was established in Australia or any asset of the fund is situated in Australia
- the central management and control of the fund is ordinarily in Australia
- either the fund has
- no 'active member'
- at least 50% of the following, attributable to super interests held by 'active members' who are Australian residents
- the total market value of the fund's assets attributable to super interests held by 'active members'
- the sum of the amounts that would be payable to or in respect of 'active members' if they voluntarily ceased to be members.
The central management and control of a super fund is ordinarily in Australia at a time even if that central management and control is temporarily outside Australia for a period not exceeding two years.
Example
A married couple are trustees of their self-managed super fund that was established in 2001. In July 2008 the husband accepts a two-year employment posting overseas. His wife joins him during that time. They make no contributions to the fund after leaving Australia. In these circumstances, it is accepted that the central management and control of the self-managed super fund is ordinarily in Australia and the self-managed super fund will be treated as an Australian super fund.
An entity that is not an Australian super fund is a foreign super fund.
Active members
An active member of the fund is, at the relevant time, a member who is:
- a contributor to the fund at that time
- an individual on whose behalf contributions have been made to the fund, except where the individual
- is a foreign resident
- is not a contributor at that time
- for whom contributions made to the fund on the individual's behalf, after the individual became a foreign resident, are only payments in respect of a time when the individual was an Australian resident.
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Last Modified: Tuesday, 30 April 2013