INCOME TAX ASSESSMENT ACT 1936

PART III - LIABILITY TO TAXATION  

Division 2 - Income  

Subdivision A - Assessable income generally  

SECTION 26AFA   ASSESSABLE INCOME TO INCLUDE VALUE OF CERTAIN BENEFITS RECEIVED FROM OR IN CONNECTION WITH FORMER SECTION 23F FUNDS  

26AFA(1)   [Assessable income to include value of benefit]  

Where:


(a) in a year of income and on or after 7 December 1983, a taxpayer receives or obtains a benefit of any kind out of, or attributable to assets of, a section 23F fund;


(aa) if the fund is an exempt fund within the meaning of section 26AFB (as in force just before the commencement of Schedule 1 to the Superannuation Legislation Amendment (Simplification) Act 2007 ) - the benefit was received or obtained by the taxpayer before the proclaimed superannuation standards day;


(b) the benefit:


(i) is not a benefit that the taxpayer has a right to receive from the fund; or

(ii) is an excessive benefit; and


(c) the Commissioner is satisfied that the taxpayer received or obtained the benefit:


(i) by reason that the taxpayer was, or had been, a member of the fund;

(ii) by reason that the taxpayer was, or had been, a dependant of a person who was, or had been, a member of the fund;

(iii) by reason that the taxpayer was, or had been, associated with a person who was, or had been, a member of the fund; or

(iv) by reason that the taxpayer was, or had been, associated with a person who had made contributions to the fund, being contributions to which Subdivision AA of Division 3 applied;

the assessable income of the taxpayer of the year of income shall include the amount or value of that benefit.

26AFA(2)   [Excessive benefits]  

Where:


(a) subsection (1) would, but for this subsection, apply to the amount or value of an excessive benefit received or obtained by a taxpayer out of, or attributable to assets of, a section 23F fund; and


(b) the Commissioner, having regard to:


(i) the nature of the fund;

(ii) the circumstances by reason of which the benefit is an excessive benefit; and

(iii) such other matters relating to the receiving or obtaining of the benefit by the taxpayer as the Commissioner considers relevant;
is satisfied that it would be unreasonable for subsection (1) to apply to the whole or part of the benefit;

that subsection does not apply to the benefit, or to that part of the benefit, as the case may be.

26AFA(3)   [Transfer of right to receive benefit]  

Where, in a year of income and on or after 7 December 1983, a taxpayer receives valuable consideration in respect of the transfer by the taxpayer to another person (whether by assignment, by declaration of trust or by any other means) of a right (whether vested or contingent) to receive a benefit from a fund, being a section 23F fund and not being an exempt fund within the meaning of section 26AFB (as in force just before the commencement of Schedule 1 to the Superannuation Legislation Amendment (Simplification) Act 2007 ), the assessable income of the taxpayer of the year of income shall include the amount or value of that consideration.

26AFA(4)   [Definitions]  

In this section:

dependant
, in relation to a taxpayer, includes the spouse and any child of the taxpayer.

excessive benefit
means a benefit of any kind that is excessive in amount or value having regard to the matters mentioned in subparagraphs 23F(2)(h)(i), (ii), (iii) and (iv) as in force at any time before the commencement of section 1 of the Taxation Laws Amendment Act (No. 4) 1987 .

section 23F fund
means a fund to which section 23F (as in force at any time before the commencement of section 1 of the Taxation Laws Amendment Act (No. 4) 1987 ) applies, or has applied, in relation to any year of income.

26AFA(5)   [Continued application of former s 23F]  

For the purposes of this section, where either of the following paragraphs applies in relation to an exempt fund within the meaning of section 26AFB of this Act (as in force just before the commencement of Schedule 1 to the Superannuation Legislation Amendment (Simplification) Act 2007 ) in relation to the year of income of the fund commencing on 1 July 1986 or a subsequent year of income:


(a) the year of income ended before the proclaimed superannuation standards day and section 23F of this Act, as in force immediately before the commencement of section 1 of the Taxation Laws Amendment Act (No. 4) 1987 , would, but for the amendments made by that Act, have applied in relation to the fund in relation to the year of income;


(b) the proclaimed superannuation standards day occurred during the year of income and, if the year of income had ended on the proclaimed superannuation standards day, section 23F of this Act, as in force immediately before the commencement of section 1 of that Act, would, but for the amendments made by that Act, have applied in relation to the fund in relation to the year of income;

section 23F of this Act, as in force immediately before the commencement of section 1 of that Act, shall be taken to have continued to apply in relation to the fund in relation to the year of income of the fund.


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