ATO Interpretative Decision
ATO ID 2015/11
Income tax / SuperannuationSuperannuation: meaning of 'Legally Qualified Medical Practitioners'
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
What is meant by the term 'legally qualified medical practitioners' within the definition of 'disability superannuation benefit' in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997)?
The term 'legally qualified medical practitioners', within the definition of 'disability superannuation benefit' in subsection 995-1(1) of ITAA 1997, is not a defined term in taxation legislation. The Commissioner relies on its ordinary meaning and takes the view that 'legally qualified medical practitioners' are persons who have general or specialist registration with the Medical Board of Australia (MBA).
A superannuation fund member has applied to the fund trustee, under the permanent incapacity condition of release, to receive a superannuation lump sum benefit.
In working out the tax to be withheld from the payment of the superannuation lump sum, the trustee needs to consider whether the benefit paid will be a 'disability superannuation benefit' for the purposes of section 307-145 of the ITAA 1997.
The term 'disability superannuation benefit' in subsection 307-145(1) of the ITAA 1997 is defined in subsection 995-1(1) of that Act as follows:
disability superannuation benefit means a *superannuation benefit if:
The member's application includes certification from two health practitioners. Each certification states that, due to ill health, it is unlikely that the member can ever be gainfully employed in a capacity for which she is reasonably qualified because of education, experience or training. The health practitioners are not medical doctors.
Reasons for Decision
The Commissioner considers that in this context the term 'legally qualified medical practitioners' should be construed as referring to those who are legally qualified under the relevant legislation to practice medicine in Australia: see Re VBI and Federal Commissioner of Taxation (Case 9/2005)  AATA 683; 2005 ATC 193 ; (2005) 52 ATR 1197 at ATC 196.
The relevant law governing who is qualified to practice medicine in Australia is the Health Practitioner Regulation National Law (the National Law) in force in each state and territory of Australia.
Section 5 of the National Law defines the term 'medical practitioner' as follows:
medical practitioner means a person who is registered under this Law in the medical profession.
The medical profession is but one health profession recognised under the National Law. Other health professions include Chinese medicine, chiropractic, dental, nursing and midwifery, pharmacy and psychology. Section 113 of the National Law states that; a person must not use a title of a health profession unless they are registered in that profession. Only members of the medical profession can use the title of medical practitioner.
Section 31 of the National Law establishes a number of National Health Practitioner Boards (National Boards). The Medical Board of Australia (MBA) is the National Board for the medical profession. Section 35 of the National Law lists the functions of National Boards - one of these being the registration of suitably qualified and competent persons in each health profession. Under subsection 40(3) of the National Law, each National Board must publish registration standards, codes or guidelines on its website.
There are six categories of registration for health professionals under Part 7 of the National Law:
- general registration
- specialist registration
- provisional registration
- limited registration
- non-practising registration
- student registration.
Each type of registration, as it relates to the medical profession, is described on the MBA's internet site and is covered by registration standards, codes and guidelines.
In a Statement dated 14 March 2012 the MBA provided guidelines for registration which stated relevantly:
As the primary purpose of registration is to protect the public, medical practitioners should be registered if they have any direct clinical contact with patients or provide treatment or opinion about individuals.
The requirement in paragraph (b) of the definition of 'disability superannuation benefit', for 2 legally qualified medical practitioners to provide certification about individuals, involves providing an opinion about those individuals.
It is the Commissioner's view that persons who have general or specialist registration with the MBA are legally qualified medical practitioners for the purposes of the definition of 'disability superannuation benefit'. Also, for a benefit to be a disability superannuation benefit, certification must have been provided by 2 medical practitioners as opposed to other types of health practitioners.
See section 12-85 of Schedule 1 to the Taxation Administration Act 1953.
In this case the Administrative Appeals Tribunal considered the meaning of the term 'legally qualified medical practitioner' in the definition of 'medical expenses' in section 159P of the Income Tax Assessment Act 1936 which provides for a tax rebate for net medical expenses.
The Health Practitioner Regulation National Law is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). It has been adopted, with modifications, in each State and Territory. As it applies, it is referred to in each jurisdiction as follows: Health Practitioner Regulation National Law (Queensland); Health Practitioner Regulation National Law (NSW); Health Practitioner Regulation National Law (Victoria); Health Practitioner Regulation National Law (ACT); Health Practitioner Regulation National Law (NT); Health Practitioner Regulation National Law (Tasmania); Health Practitioner Regulation National Law (South Australia); Health Practitioner Regulation National Law (Western Australia).
References are to sections of the Health Practitioner Regulation National Law (Queensland), reprinted at 1 July 2014
Amongst many other listed professions - see section 113 of the National Law.
section 12-85 of Schedule 1 Health Practitioner Regulation National Law
Re VBI and Federal Commissioner of Taxation (Case 9/2005)
 AATA 683
2005 ATC 193
(2005) 52 ATR 1197
ATO ID 2009/108
ATO ID 2009/109
Disability Superannuation benefits
Lump sum - superannuation benefits
Member benefits - superannuation benefits
Date reviewed: 7 August 2018