Retirement Savings Accounts Regulations 1997

PART 4 - PAYMENT STANDARDS  

Division 4.1 - Introductory  

Subdivision 4.1.1 - General interpretation  

REGULATION 4.01   INTERPRETATION  

4.01(1)    
Subject to subregulation (2), expressions used in this Part that are defined for the purposes of Part 3 have the same meanings respectively as in that Part.

4.01(2)    

In this Part and in Schedule 2 , unless the contrary intention appears:

cashing restriction
, in relation to a condition of release, means a cashing restriction specified in column 3 of the item in Schedule 2 that mentions the condition of release.

Commonwealth income support payment
means:

(a) an income support supplement, service pension or social security pension as defined in subsection 23(1) of the Social Security Act 1991 ; or

(b) a social security benefit as defined in that subsection, other than:

(i) an austudy payment; or

(ii) a youth allowance paid to a person who is undertaking full-time study; or

(c) a drought relief payment under the Farm Household Support Act 1992 as in force immediately before the commencement of the Farm Household Support Amendment (Restart and Exceptional Circumstances) Act 1997 ; or

(d) an exceptional circumstances relief payment under the Farm Household Support Act 1992 ; or

(e) a payment of salary or wages made under the employment scheme of the Commonwealth that is known as the Community Development Employment Projects Scheme; or

(f) a payment of income support for the purposes of the Farm Family Support Scheme.

compassionate ground
, in relation to the release of an RSA holder ' s preserved benefits or restricted non-preserved benefits in an RSA, means:

(a) a ground listed in subregulation 4.22A(1) ; or

(b) the ground referred to in subregulation 4.22B(1) .

condition of release
means a condition of release specified in column 2 of Schedule 2 , and, subject to regulation 4.01B , an RSA holder is taken to have satisfied a condition of release if the event specified in that condition has occurred in relation to the RSA holder.

eligible temporary resident visa
(Repealed by SLI No 14 of 2009)

indexed
(Omitted by SR No 176 of 1998)

"lump sum"
, in this Part but not in Schedule 2 , includes an asset;

non-commutable allocated pension
has the meaning given by regulation 4.01AA .

non-commutable pension
means a pension provided under terms and conditions of an RSA that:

(a) meet the standards of subregulation 1.07(3A) ; and

(b) ensure that, if the pension is commuted under subparagraph 1.07(3A) (e)(i), the resulting superannuation lump sum cannot be cashed unless:

(i) the purpose of the commutation is to cash an unrestricted non-preserved benefit; or

(ii) before commutation, the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is `Nil ' .

non-commutable income stream
means a benefit that:

(a) cannot be commuted; and

(b) is paid at least monthly; and

(c) does not have a residual capital value; and

(d) is such that the total amount paid each month is fixed or varies only:

(i) for the purpose of complying with the Act and these Regulations; and

(ii) during any period of 12 months by a rate not exceeding either:

(A) 5% per annum; or

(B) the rate of increase in the last Consumer Price Index (All Capital Cities) for a quarter to be published by the Australian Statistician before the end of that period of 12 months compared with the Consumer Price Index (All Capital Cities) published for the same quarter in the preceding year;

OSS Laws
means:

(a) the Occupational Superannuation Standards Act 1987 as in force immediately before the commencement of section 5 of the Occupational Superannuation Standards Amendment Act 1993 ; and

(b) the Occupational Superannuation Standards Regulations;

permanent departure from Australia
(Omitted by SR No 151 of 1997)

permanent incapacity
, in relation to an RSA holder, means ill-health (whether physical or mental), where the trustee is reasonably satisfied that the RSA holder is unlikely, because of the ill-health, to engage in gainful employment for which the RSA holder is reasonably qualified by education, training or experience.

permanent resident
means a holder of a permanent visa under the Migration Act 1958 that has not ceased to be in effect.

preservation age
means:

(a) for a person born before 1 July 1960 - 55 years; or

(b) for a person born during the year 1 July 1960 to 30 June 1961 - 56 years; or

(c) for a person born during the year 1 July 1961 to 30 June 1962 - 57 years; or

(d) for a person born during the year 1 July 1962 to 30 June 1963 - 58 years; or

(e) for a person born during the year 1 July 1963 to 30 June 1964 - 59 years; or

(f) for a person born after 30 June 1964 - 60 years.

restricted non-preserved contributions
(Omitted by SR No 176 of 1998)

retirement
has the meaning given by subregulation (4);

RSA changeover day
(Omitted by SR No 176 of 1998)

severe financial hardship
has the meaning given by subregulation (5);

SIS changeover day
, in relation to a member of a regulated superannuation fund (within the meaning of the SIS Regulations) has the same meaning as the term " changeover day " has in Part 6 of those Regulations;

student visa
has the same meaning as in the Migration Act 1958 .

temporary incapacity
, in relation to an RSA holder who has ceased to be gainfully employed (including an RSA holder who has ceased temporarily to receive any gain or reward under a continuing arrangement for the RSA holder to be gainfully employed), means ill-health (whether physical or mental) that caused the RSA holder to cease to be gainfully employed but does not constitute permanent incapacity.

temporary resident
means a holder of a temporary visa under the Migration Act 1958 .

terminal medical condition
has the meaning given by regulation 4.01A .

transitional period
, in relation to a superannuation fund (within the meaning of the SIS Act), means the period beginning at the beginning of the fund's 1994-95 year of income and ending:

(a) in the case of a public sector superannuation scheme (within the meaning of the SIS Act) - at the end of the day when the scheme became an exempt public sector superannuation scheme; or

(b) in any other case - at the end of the day when the trustee of the fund lodges an election under section 19 of that Act.

transition to retirement pension
means a pension provided from an RSA, the terms and conditions of which:

(a) meet the standards of subregulation 1.07(3D) ; and

(b) allow total payments (excluding payments by way of commutation, but including payments under a payment split) made in a financial year to amount to no more than 10% of the pension account balance:

(i) on 1 July in the financial year in which the payment is made; or

(ii) if that year is the year in which the pension commences - on the commencement day;

unless the pensioner has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is ' Nil ' ; and

(c) comply with paragraph (b) of the definition of non-commutable allocated pension in subregulation 4.01AA(1) as if it were such a pension.

4.01(3)    

Amounts to the credit of an RSA holder (except eligible spouse contributions) in a fund are undeducted contributions if:

(a) the amounts are undeducted contributions within the meaning that was given, before 1 July 2007, by subsection 27A(1) of the Tax Act; or

(b) for any other amounts - the amounts comprise contributions:

(i) made after 30 June 1983 in order to obtain superannuation benefits (within the meaning of the Tax Act); and

(ii) in respect of which no deduction is allowable or has been allowed to the RSA holder under the former section 82AAT of the Tax Act.

4.01(4)    
For the purposes of Schedule 2 , the retirement of a person is taken to occur:

(a) in the case of a person who has reached a preservation age that is less than 60 - if:

(i) an arrangement under which RSA holder was gainfully employed has come to an end; and

(ii) the RSA provider is reasonably satisfied that the RSA holder intends never to again become gainfully employed, either on a full-time or a part-time basis; or

(b) in the case of a person who has attained the age of 60 - an arrangement under which the person was gainfully employed has come to an end, and either of the following circumstances apply:

(i) the person attained that age on or before the ending of the employment;

(ii) the RSA provider is reasonably satisfied that the person intends never to again become gainfully employed, either on a full-time or a part-time basis.

4.01(5)    

For the purposes of Schedule 2 , a person is taken to be in severe financial hardship if:

(a) the RSA provider is satisfied:

(i) based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments, that:

(A) the person has received Commonwealth income support payments for a continuous period of 26 weeks; and

(B) the person was in receipt of payments of that kind on the date of the written evidence; and

(ii) that the person is unable to meet reasonable and immediate family living expenses; or

(b) the person has reached the age that is the person's preservation age plus 39 weeks and the RSA provider is satisfied:

(i) based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments - that the person received Commonwealth income support payments for a cumulative period of 39 weeks after the person reached the person's preservation age; and

(ii) that the person was not gainfully employed on a full-time, or part-time, basis on the date of the application for cashing of his or her preserved benefits, or restricted non-preserved benefits, in the RSA.

4.01(5A)    

The written evidence provided for by paragraph (5)(a) is of no effect if it is dated more than 21 days before the date of the person's application to the RSA provider for cashing of his or her preserved benefits or restricted non-preserved benefits.

4.01(5B)    

For the purposes of Schedule 2 , an RSA holder is taken to have satisfied a condition of release if the event specified in that condition has occurred in relation to the RSA holder.

4.01(6)    

A reference in this Part to " preserved benefits " , " restricted non-preserved benefits " , " unrestricted non-preserved benefits " and " post-65 employer-financed benefits " includes benefits, rolled over, or transferred, from a superannuation entity or an EPSSS.