RETIREMENT SAVINGS ACCOUNTS REGULATIONS 1997

PART 1 - PRELIMINARY  

REGULATION 1.01   1.01   NAME OF REGULATIONS  


These regulations are the Retirement Savings Accounts Regulations 1997.

REGULATION 1.02   1.02   COMMENCEMENT  
These Regulations commence on the date of commencement of the Retirement Savings Accounts Act 1997.

REGULATION 1.03   INTERPRETATION  

1.03(1)  


In these Regulations, unless the contrary intention appears:

1997 Tax Act
means the Income Tax Assessment Act 1997.

account based pension
means a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(3D).

"Act"
means the Retirement Savings Accounts Act 1997;

adjusted base amount
, in relation to a non-member spouse at a particular date, means the adjusted base amount applicable to the non-member spouse at that date worked out under Division 6.1A of the Family Law (Superannuation) Regulations 2001.

"advance instalment of surcharge"
means the advance instalment payable under section 11 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997;

AFCA
(short for the Australian Financial Complaints Authority) has the same meaning as in Chapter 7 of the Corporations Act 2001.

AFCA scheme
has the same meaning as in Chapter 7 of the Corporations Act 2001.

allocated pension
means a pension provided under the terms and conditions of an RSA that meet the standards of subregulation 1.07(2).

allot
, for Division 4.5, means to credit an amount from an RSA holder's account to another account in the regulated superannuation fund held by, or created for, the receiving spouse otherwise than by transfer or roll-over.

base amount payment split
, in relation to an RSA interest, means a payment split under which a base amount is allocated to the non-member spouse in relation to the interest under Part VIIIB of the Family Law Act 1975.

capital gains tax exempt component
has the same meaning as CGT exempt component in subsection 27A(1) of the Tax Act as in force immediately before 1 July 2007.

child
(Repealed by SR No 147 of 2004)

child account
(Repealed by SR No 147 of 2004)

child contributions
(Repealed by SR No 147 of 2004)

"commencement day"
, in relation to a pension, means the first day of the period to which the first payment of the pension relates;

"contributions"
, in relation to an RSA, includes:


(a) payments of shortfall components to the RSA; and


(b) payments to the RSA from the Superannuation Holding Accounts Special Account;

but does not include benefits that have been rolled over or transferred to the RSA;

"costs"
, in relation to the benefits of the holder of an RSA in the RSA as at any time, means the total costs charged to those benefits down to that time and includes:


(a) the direct costs of establishing, operating and terminating the RSA: and


(b) any administrative, insurance and taxation costs relating to the establishment, operation and termination of the RSA; and


(c) any amounts of Government co-contribution required to be repaid under section 24 of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003.

[NOTE: Examplesof "taxation costs": contributions tax, superannuation contributions surcharge.]

eligible application
, in relation to an RSA, means:


(a) if, under section 1440 of the Corporations Act 2001, section 51 of the Act (as in force immediately before the FSR commencement) continues to apply to the RSA - an eligible application within the meaning of section 51 of the Act; and


(b) in any other case - an eligible application within the meaning of subsection 1016A(1) of the Corporations Act 2001.

"eligible rollover fund"
has the same meaning as in Part 24 of the SIS Act;

eligible spouse contribution
means a contribution made by an individual to a superannuation fund:


(a) to provide superannuation benefits for the individual's spouse, whether or not the benefits would be payable to the dependants of the individual's spouse if the spouse dies before or after becoming entitled to receive the benefits; and


(b) in circumstances in which the individual:


(i) could not have deducted the contribution under section 82AAC of the Tax Act in the 2006-07 income year or a previous year; and

(ii) cannot deduct the contribution under Subdivision 290-B of the 1997 Tax Act in the 2007-08 income year or a later year.

"eligible termination payment"
(Repealed by SLI No 104 of 2007)

"employer contribution"
, in relation to an RSA, means a contribution by, or on behalf of, an employer of an RSA holder;

EPSSS
means an exempt public sector superannuation scheme.

"exempt public sector superannuation scheme"
has the same meaning as in the SIS Act;

flag lifting agreement
means a flag lifting agreement under Part VIIIB of the Family Law Act 1975.

FSR commencement
has the same meaning as in section 1410 of the Corporations Act 2001.

"full-time"
, in relation to being gainfully employed, means gainfully employed for at least 30 hours each week;

"gainfully employed"
means employed or self-employed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment;

growth phase
, for an RSA interest, has the meaning given by regulation 1.05A.

"industrial authority"
means:


(a) a court, or a tribunal or other body or person, constituted under a law of the Commonwealth, a State or a Territory with power of conciliation or arbitration in relation to industrial disputes; or


(b) a special board constituted under the law of a State relating to factories;

"investment earnings"
, in relation to the benefits (or to benefits of a particular kind) of an RSA holder as at any time, means the total of the amounts credited to the RSA:


(a) if the RSA is an account - by way of positive interest; or


(b) if the RSA is a policy - by way of positive investment returns or increases in the value of assets in which the policy is invested;

down to that time in respect of those benefits;

life expectancy
has the same meaning as life expectation factor in section 27H of the Tax Act.

"lost RSA holder"
has the meaning given by regulation 1.06;

"mandated employer contributions"
, in relation to an RSA holder, means contributions by, or on behalf of, an employer that are equal to the sum of:


(a) the contributions made by, or on behalf of, the employer to an RSA in relation to the RSA holder, that:


(i) reduce the employer's potential liability for the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992; or

(ii) are payments of shortfall components; and


(b) the contributions (other than contributions of the kind specified in paragraph (a)) made by, or on behalf of, the employer to the RSA in relation to the RSA holder in or towards satisfaction of the employer's obligation to make contributions for the RSA holder, being an obligation under an agreement certified, or an award made, on or after 1 July 1986 by an industrial authority;

"mandated employer-financed benefits"
, in relation to an RSA holder as at a particular time, means benefits equal to the sum of:


(a) the amount of the mandated employer contributions (if any) made to the RSA down to that time; and


(b) the amount of the mandated employer-financed benefits (if any) paid into the RSA down to that time; and


(c) the amount of the investment earnings on those contributions and benefits down to that time;

less the costs applicable to the amounts down to that time;

market linked pension
means a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(3A).

"member"
has the same meaning as in the SIS Regulations;

member spouse
, in relation to an RSA interest that is subject to a payment split, means the person who is the member spouse in relation to the interest under Part VIIIB of the Family Law Act 1975.

non-member spouse
,
in relation to an RSA interest that is subject to a payment split, means the person who is the non-member spouse in relation to the interest under Part VIIIB of the Family Law Act 1975.

old Regulations
means these Regulations as in force immediately before the FSR commencement.

operative time
, for a payment split, means the operative time under Part VIIIB of the Family Law Act 1975 for the payment split.

"part-time"
, in relation to being gainfully employed, means gainfully employed for at least 10 hours, and less than 30 hours, each week;

payment split
means a payment split under Part VIIIB of the Family Law Act 1975.

payment split notice
means a notice given by an RSA provider under regulation 4A.03.

percentage payment split
, in relation to an RSA interest, means a payment split under a superannuation agreement, flag lifting agreement or splitting order that specifies a percentage that is to apply to all splittable payments in respect of the interest.

"protected RSA holder"
means an RSA holder who has withdrawal benefits, or benefits of any other type that are payable on closing the RSA otherwise than voluntarily, net of any applicable exit fee, that:


(a) are less than $1,000; and


(b) contain, or have contained, benefits that are mandated employer-financed benefits;

receiving spouse
has the meaning given by regulation 4.43.

reporting period
means a reporting period determined in accordance with the matters mentioned in subsection 1017D(2) of the Corporations Act 2001.

retirement phase
has the same meaning as in the 1997 Tax Act.

reviewable decision
means a decision of APRA to determine a form of consent under paragraph (b) of the definition of consent under regulation 4.30 or subregulation 4A.27(8).

"RSA holder contributions"
, in relation to an RSA holder, means contributions by, or on behalf of, the RSA holder to the RSA, but does not include employer contributions made in respect of the RSA holder;

"RSA holder-financed benefits"
, in relation to an RSA holder as at a particular time, means benefits equal to the sum of:


(a) the amount of the RSA holder contributions (if any) made to the RSA down to that time; and


(b) the amount of the RSA holder-financed benefits (if any) paid into the RSA down to that time; and


(c) the amount of the investment earnings on those contributions and benefits down to that time;

less the costs applicable to those amounts down to that time;

"RSA holder-protection standards"
means the standards set out in subregulation 3.12(2) and regulation 3.13;

RSA interest
means an interest that a person has as the holder of an RSA, but does not include a reversionary interest.

"SGA Act"
means the Superannuation Guarantee (Administration) Act 1992;

"shortfall component"
has the same meaning as in the SGA Act;

"SIS Act"
means the Superannuation Industry (Supervision) Act 1993;

"SIS Regulations"
means the Superannuation Industry (Supervision) Regulations 1994;

splittable payment
means a splittable payment under Part VIIIB of the Family Law Act 1975.

splitting order
means a splitting order under Part VIIIB of the Family Law Act 1975.

superannuation agreement
means a superannuation agreement under Part VIIIB of the Family Law Act 1975.

"superannuation contributions surcharge"
means the superannuation contributions surcharge imposed by the Superannuation Contributions Tax Imposition Act 1997;

Superannuation Holding Accounts Special Account
means the Special Account established by section 8 of the Small Superannuation Accounts Act 1995.

superannuation income stream
has the same meaning as in the 1997 Tax Act.

superannuation lump sum
has the meaning given by subsection 995-1(1) of the 1997 Tax Act.

"Tax Act"
means the Income Tax Assessment Act 1936;

transferable benefits
, in relation to an RSA interest that is subject to a payment split and in relation to the non-member spouse in relation to that interest, means benefits that are equal to:


(a) if the payment split is a base amount payment split and an adjusted base amount applies to the non-member spouse when the benefits are transferred - the adjusted base amount less the amount of any fees payable by the non-member spouse in respect of the payment split; or


(b) if the payment split is a base amount payment split and an adjusted base amount does not apply to the non-member spouse when the benefits are transferred - the base amount allocated to the non-member spouse, within the meaning of regulation 45 of the Family Law (Superannuation) Regulations 2001, less the amount of any fees payable by the non-member spouse in respect of the payment split; or


(c) if the payment split is a percentage payment split:


(i) for an entitlement in respect of an interest in the growth phase - the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001 multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split; or

(ii) for an entitlement in respect of any other interest - the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 5 of the Family Law (Superannuation) Regulations 2001, multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non-member spouse in respect of the payment split.

"withdrawal benefit"
, in relation to an RSA holder, means the total amount of the benefits that would be payable:


(a) to the RSA holder; and


(b) in respect of the RSA holder, to:


(i) another RSA; or

(ii) the trustee of a superannuation entity or an EPSSS; and


(c) to another person or entity because of a payment split in respect of the RSA holder's interest in the RSA;

if the RSA holder voluntarily ceased to be an RSA holder.

1.03(2)  


For the purposes of the definition of "protected RSA holder" in subregulation (1), a benefit in an RSA is taken to contain or to have contained mandated employer-financed benefits unless the RSA provider knows otherwise.

REGULATION 1.04   1.04   ELIGIBLE PERSON - SECTION 13 OF THE ACT  
For the purposes of section 13 of the Act, the criterion that the person must be an individual is prescribed.

REGULATION 1.05   1.05   APPROVED AUDITOR  
For the purposes of the definition of ``approved auditor'' in section 16 of the Act, individuals each of whom is:


(a) under Division 2 of Part 9.2 of the Corporations Law, registered, or taken to be registered, as an auditor; and


(b) a Member of CPA Australia Limited or the Institute of Chartered Accountants in Australia;

constitute a specified class.

REGULATION 1.05A   MEANING OF GROWTH PHASE  

1.05A(1)  
An RSA interest is taken to be in the growth phase at a particular date, if the RSA holder satisfies 1 of the following requirements at that date:


(a) the RSA holder has not satisfied a relevant condition of release;


(b) the RSA holder has satisfied a relevant condition of release but no benefit has been paid in respect of the RSA interest, and no action has been taken by or for the RSA holder under the terms and conditions of the RSA to cash any benefit that the RSA holder is entitled to be paid as a result of satisfying the condition of release;


(c) the RSA holder has satisfied a relevant condition of release and a benefit (other than a benefit that is paid as a pension) has been paid to, or for the benefit of, the RSA holder or, if the RSA holder has died, to his or her legal personal representative, but no action has been taken by or for the RSA holder, or his or her legal personal representative, under the terms and conditions of the RSA to receive any other benefit that the RSA holder, or his or her estate, is entitled to be paid as a result of satisfying the condition of release.

1.05A(2)  
In this regulation:

relevant condition of release
means a condition of release mentioned in item 101, 102, 103, 106 or 107 of Schedule 2.

REGULATION 1.06   LOST RSA HOLDER  

1.06(1)  
An RSA holder is taken to be a lost RSA holder at a particular time if:


(a) the RSA holder is uncontactable, that is, if and only if:


(i) either:

(A) the RSA provider has never had an address (whether non-electronic or electronic) for the RSA holder; or

(B) the RSA provider has made one or more attempts to send written communications to the RSA holder at the holder's last known address (or addresses), and believes, on reasonable grounds, that the holder can no longer be contacted at that address (or those addresses); and

(ia) the RSA holder has not contacted the RSA provider (whether by written communication or otherwise) within the last 12 months of the RSA holder's being an RSA holder; and

(ib) the RSA holder has not accessed details about the RSA holder's account from any electronic facility provided by the RSA provider within the last 12 months of the RSA holder's being an RSA holder; and

(ii) the RSA provider has not received a contribution or rollover in respect of the RSA holder within the last 12 months of the RSA holder's being an RSA holder; or


(b) the RSA holder is an inactive RSA holder, that is, if and only if:


(i) he or she has been an RSA holder for longer than 2 years; and

(ii) the RSA has not received a contribution or rollover in respect of him or her within the last 5 years of his or her being an RSA holder;

unless:


(c) within the last 2 years of the RSA holder's being an RSA holder, the RSA provider has verified that the RSA holder's address is correct and has no reason to believe that that address is now incorrect; or


(d) the RSA holder is permanently excluded from being a lost RSA holder.

1.06(1A)  


To avoid doubt, for the purposes of this regulation, a written communication includes a written communication by non-electronic means or by electronic means.

1.06(2)  
For the purposes of subregulation (1), and subject to subregulation (3), an RSA holder is permanently excluded from being a lost RSA holder if:


(a) the RSA holder is an inactive RSA holder who has indicated by a positive act (for example, deferring a benefit in the RSA) that he or she wishes to continue to be an RSA holder; or


(b) the RSA holder has contacted the RSA provider at any time after the time at which he or she became an RSA holder and indicated that he or she wishes to continue being an RSA holder.

1.06(3)  
The RSA provider may decide that:


(a) an RSA holder, a class of RSA holders, or all RSA holders cannot be permanently excluded from becoming lost RSA holders; or


(b) an RSA holder who is, a class of RSA holders who are, or all RSA holders who are permanently excluded from being lost is or are not to continue being permanently excluded from being lost.

1.06(4)  


Subregulations (1), (2) and (3) also apply to a person who is a non-member spouse in relation to an RSA interest that is subject to a payment split as if the person were an RSA holder.
Note:

The consequences of an RSA holder becoming a lost RSA holder are:

  • (a) that the RSA provider must report certain details to the Commissioner of Taxation (see regulation 5 of the Superannuation (Unclaimed Money and Lost Members) Regulations 1999); and
  • (b) that, if the RSA holder is transferred to a superannuation entity or an EPSSS, the RSA provider must supply certain information about the RSA holder to the trustee of the superannuation entity or the EPSSS (see regulation 7.9.82 of the Corporations Regulations 2001).
  • There may also be consequences regarding the information to be supplied to the RSA holder (see regulation 7.9.61 of, and Part 14 of Schedule 10A to, the Corporations Regulations 2001).

    REGULATION 1.07   MEANING OF "PENSION" - SECTION 16 OF THE ACT  

    1.07(1)  


    A benefit is taken to be a pension for the purposes of the Act if it is provided under terms and conditions of an RSA that:


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


    (b) do not permit the capital supporting the pension to be added to by way of contribution or rollover after the pension has commenced; and


    (c) meet the standards of regulation 1.08A.

    1.07(1A)  


    A benefit that commenced to be paid before 20 September 2007 is taken to be a pension for the purposes of the Act if it is provided under terms and conditions of an RSA that meet the standards of subregulation (2) or (3A).

    1.07(1B)  


    A benefit that commenced to be paid on or after 20 September 2007 is taken to be a pension for the purposes of the Act if:


    (a) the benefit arises under terms and conditions of an RSA that meet the standards of:


    (i) subregulation (3A); and

    (ii) subregulation (3D); and


    (b) the benefit was purchased with a rollover superannuation benefit that resulted from the commutation of:


    (i) an annuity provided under a contract that meets the standards of subregulation 1.05(2), (9) or (10) of the SIS Regulations; or

    (ii) a pension provided under rules that meet the standards of subregulation 1.06(2), (7) or (8) of the SIS Regulations; or

    (iii) a pension provided under terms and conditions of an RSA that meet the standards of subregulation (3A).

    1.07(2)  
    Terms and conditions of an RSA meet the standards of this subregulation if they at least ensure that:


    (a) the pension is not able to be transferred to a person other than a reversionary beneficiary on the death of the primary beneficiary or of another reversionary beneficiary; and


    (b) the capital value of the pension, and the income from it, cannot be used as security for a borrowing; and


    (c) payments are made at least once in each financial year; and


    (d) for a pension that has a commencement day before 1 January 2006 - the payments in a year (excluding payments by way of commutation but including payments made under a payment split) are not larger or smaller in total than, respectively, the maximum and minimum limits calculated in accordance with Schedule 1; and


    (da) for a pension that has a commencement day on or after 1 January 2006 - the payments in a year (excluding payments by way of commutation but including payments made under a payment split) are not larger or smaller in total than the following:


    (i) for payments made during the period starting on 1 January 2006 and ending on 30 June 2006 - the respective maximum and minimum limits for the year calculated in accordance with 1 of the following Schedules:

    (A) Schedule 1;

    (B) Schedule 1A;

    (ii) for payments made on or after 1 July 2006 - the respective maximum and minimum limits for the year calculated in accordance with Schedule 1A; and


    (e) for a pension that has a commencement day before 1 January 2006 - before full commutation or transfer of the pension, a payment at least equal to the minimum limits calculated in accordance with Schedule 1 must be made; and


    (ea) for a pension that has a commencement day on or after 1 January 2006 - before full commutation or transfer of the pension, a payment is made that is:


    (i) for a payment made during the period starting on 1 January 2006 and ending on 30 June 2006 - at least equal to the minimum limit for the year calculated in accordance with which 1 of the following Schedules was chosen for the pension under paragraph 1.07(2)(da):

    (A) Schedule 1;

    (B) Schedule (1A);

    (ii) for a payment made on or after 1 July 2006 - at least equal to the minimum limit for the year calculated in accordance with Schedule 1A.

    1.07(3)  
    For the purpose of determining whether the terms and conditions meet the standards in paragraphs (2)(c) and (d), it is immaterial:


    (a) that:


    (i) the commencement day occurs on or after 1 April in a financial year; and

    (ii) the terms and conditions do not provide for the payment of an amount in that financial year that meets the standard for the minimum limit in paragraph (2)(d); or


    (b) that the terms and conditions do not ensure that the payments in the year in which the pension is to end meet the standard for the minimum limit in paragraph 2(d).

    1.07(3A)  


    Terms and conditions of an RSA that provides a benefit ( the market linked pension ) meet the standards of this subregulation if they at least ensure that:


    (a) the market linked pension:


    (i) is paid at least annually to the primary beneficiary or to a reversionary beneficiary throughout a period equal to the primary beneficiary's life expectancy on the commencement day of the pension, rounded up to the next whole number if the primary beneficiary's life expectancy does not consist of a whole number of years; or

    (ii) is paid at least annually to the primary beneficiary or to a reversionary beneficiary throughout a period equal to the primary beneficiary's life expectancy mentioned in subparagraph (i) calculated, at the option of the primary beneficiary, as if the primary beneficiary were up to 5 years younger on the commencement day; or

    (iia) if the pension has a commencement day on or after 1 January 2006 - the pension is paid at least annually to the primary beneficiary or reversionary beneficiary throughout a period that is not less than the period available under subparagraph 1.07(3A)(a)(i), and not more than the greater of the following periods:

    (A) the maximum period available to the primary beneficiary under subparagraph 1.07(3A)(a)(ii);

    (B) the period of years equal to the number that is the difference between the age attained by the primary beneficiary at his or her most recent birthday before the commencement day, and 100; or

    (iii) if:

    (A) the pension is a pension that reverts to a surviving spouse on the death of the primary beneficiary; and

    (B) the life expectancy of the primary beneficiary's spouse is greater than the life expectancy of the primary beneficiary; and

    (C) the primary beneficiary has not chosen to make an arrangement mentioned in subparagraph (i), (ii) or (iia) for the pension;
    the pension is paid at least annually to the primary beneficiary or to a reversionary beneficiary throughout a period equal to:

    (D) the life expectancy of the spouse on the commencement day; or

    (E) the life expectancy of the spouse calculated, at the option of the primary beneficiary, as if the spouse were up to 5 years younger on the commencement day; or

    (F) if the pension has a commencement day on or after 1 January 2006 - a period that is not less than the period available under sub-subparagraph 1.07(3A)(a)(iii)(D), and not more than the greater of the following periods:

    (I) the maximum period available under sub-subparagraph 1.07(3A)(a)(iii)(E);

    (II) the period of years equal to the number that is the difference between the age attained by the spouse at his or her most recent birthday before the commencement day, and 100;
    at the option of the primary beneficiary, and rounded up to the next whole number if the life expectancy of the spouse, or the period, does not consist of a whole number of years; and


    (b) the total amount of the payments to be made in a year (excluding payments by way of commutation but including payments made under a payment split) is determined in accordance with Schedule 4; and


    (c) the market linked pension does not have a residual capital value; and


    (d) the terms and conditionsof the market linked pension meet the standards of regulation 1.08; and


    (e) the market linked pension cannot be commuted except:


    (i) if the pension is not funded from the commutation of:

    (A) another pension that is provided under terms and conditions that meet the standards of this subregulation; or

    (B) an annuity that is provided under a contract that meets the standards of subregulation 1.05(2), (3), (9) or (10) of the SIS Regulations; or

    (C) a pension that is provided under rules that meet the standards of subregulation 1.06(2), (3), (7) or (8) of the SIS Regulations
    and the commutation is made within 6 months after the commencement day of the pension; or

    (ii) subject to subparagraph (iii), on the death of the primary beneficiary or reversionary beneficiary, by payment of:

    (A) a lump sum or a new pension to one or more dependants of either the primary beneficiary or reversionary beneficiary; or

    (B) a lump sum to the legal personal representative of either the primary beneficiary or reversionary beneficiary; or

    (C) if, after making reasonable enquiries, the provider of the pension is unable to find a person mentioned in sub-subparagraph (A) or (B) - a lump sum to another individual; or

    (iii) for subparagraph (ii), if the primary beneficiary has opted, under subparagraph (a)(iii), for a period worked out in relation to the life expectancy or age of the primary beneficiary's spouse - the market linked pension cannot be commuted until the death of both the primary beneficiary and the spouse; or

    (iv) if the superannuation lump sum resulting from the commutation is transferred directly to the purchase of:

    (A) another pension that is provided under terms and conditions that meet the standards of this subregulation; or

    (B) an annuity that is provided under a contract that meets the standards of subregulation 1.05(2), (3), (9) or (10) of the SIS Regulations; or

    (C) a pension that is provided under rules that meet the standards of subregulation 1.06(2), (3), (7) or (8) of the SIS Regulations; or

    (v) to pay a superannuation contributions surcharge; or

    (vi) to give effect to an entitlement of a non-member spouse under a payment split; or

    (vii) for the purpose of paying an amount under Division 131 or 135 in Schedule 1 to the Taxation Administration Act 1953, or section 292-80C of the Income Tax (Transitional Provisions) Act 1997, to give effect to a release authority in respect of the primary beneficiary; or

    (viii) the market linked pension was commenced in contravention of Part 4 and the commutation would result in an obligation to pay an amount to the Commissioner of Taxation under subsection 20F(1) of the Superannuation (Unclaimed Money and Lost Members) Act 1999; and


    (f) if the market linked pension reverts, it does not have a reversionary component greater than 100% of the account balance immediately before the reversion; and


    (g) if the market linked pension is commuted, the commutation amount cannot exceed the account balance immediately before the commutation; and


    (h) the market linked pension can be transferred only:


    (i) on the death of the primary beneficiary:

    (A) to 1 of the dependants of the primary beneficiary; or

    (B) to the legal personal representative of the primary beneficiary; or

    (ii) on the death of the reversionary beneficiary:

    (A) to 1 of the dependants of the reversionary beneficiary; or

    (B) to the legal personal representative of the reversionary beneficiary; and


    (i) the capital value of the market linked pension, and the income from it, cannot be used as security for a borrowing.

    1.07(3B)  


    Terms and conditions mentioned in subregulation (3A) are not prevented from meeting the standards of that subregulation by reason only that the terms or conditions provide that, if the commencement day of the pension is on or after 1 June in a financial year, no payment is required to be made for that financial year.

    1.07(3C)  


    Despite section 7 of the Income Tax Assessment (1936 Act) Regulation 2015, for a pension that has a commencement day on or after 20 September 2004 and on or before 31 December 2004, one of the following life tables are to be used in ascertaining the life expectancy of a person under this regulation:


    (a) the most recently published Australian Life Tables;


    (b) the 1995-97 Australian Life Tables.

    1.07(3D)  


    Terms and conditions for the provision of a benefit (the pension ) meet the standards of this subregulation if the terms and conditions ensure that payment of the pension is made at least annually, and also ensure that:


    (a) the total of payments in any year (excluding payments by way of commutation but including payments under a payment split) is at least the amount calculated under clause 1 of Schedule 5; and


    (b) the pension is transferable only on the death of the beneficiary (primary or reversionary, as the case may be); and


    (c) the capital value of the pension and the income from it cannot be used as a security for a borrowing.

    1.07(3E)  


    Terms and conditions of an RSA do not meet the standards of any of subregulations (2), (3A) or (3D) if, in relation to the death of the beneficiary on or after 1 July 2007, the pension is transferred or paid to a person who would not be eligible to be paid a benefit in the form of a pension under subregulation 4.24(3A) or (3B).

    1.07(4)  


    A benefit that is a pension provided under an RSA does not cease to be a pension for the purposes of the Act if the terms and conditions of the RSA do not meet the standards of subregulation (2) merely because of a payment split in respect of the RSA and any reasonable fees associated with the payment split.

    1.07(5)  


    In this regulation:

    rolled over
    means paid as a superannuation lump sum within the superannuation system.

    SECTION 1.08   COMMUTATION OF MARKET LINKED PENSION  

    1.08(1)  
    This regulation applies in relation to the terms and conditions of an RSA mentioned in paragraph 1.07(3A)(d) for a market linked pension.

    1.08(2)  
    The terms and conditions meet the standards of this regulation if they ensure that the pension cannot be commuted, in whole or in part, unless:


    (a) the commutation results from the death of a pensioner or a reversionary pensioner; or


    (b) the sole purpose of the commutation is:


    (i) to pay a superannuation contributions surcharge; or

    (ii) to give effect to an entitlement of a non-member spouse under a payment split; or

    (iii) to meet the rights of a client to return a financial product under Division 5 of Part 7.9 of the Corporations Act 2001; or


    (ba) for a commutation in part - the account balance of the pension, immediately after the commutation in part, would be equal to or would exceed the total payment amount calculated in accordance with Schedule 4, as reduced by the amount of payments (excluding amounts paid by way of commutation) to the RSA holder already made in the financial year in which the commutation in part would occur; or


    (c) the pension has paid, in the financial year in which the commutation is to take place, at least the minimum amount under subregulation (3); or


    (d) for the purpose of paying an amount under Division 131 or 135 in Schedule 1 to the Taxation Administration Act 1953, or section 292-80C of the Income Tax (Transitional Provisions) Act 1997, to give effect to a release authority in respect of the primary beneficiary.

    1.08(3)  
    For paragraph (2)(c), the minimum amount is calculated using the formula:


    annual  amount × Days in payment period
      Days in financial year

    where:

    annual amount
    for the financial year means the amount worked out in accordance with Schedule 4 for the pension, rounded to the nearest 10 whole dollars.

    days in payment period
    means the number of days in the period that:


    (a) starts on:


    (i) if the pension commenced in the financial year in which the commutation is to take place - the commencement day; or

    (ii) in any other case - 1 July in that financial year; and


    (b) ends at the end of the day on which the commutation is to take place.

    days in financial year
    means the number of days in the financial year in which the commutation is to take place.

    1.08(4)  


    In this regulation:

    rolled over
    means paid as a superannuation lump sum within the superannuation system.

    REGULATION 1.08A   COMMUTATION OF AN ACCOUNT-BASED PENSION  

    1.08A(1)  
    For paragraph 1.07(1)(c), a benefit meets the standards of this regulation if, under the applicable terms or conditions of the RSA, the pension cannot be commuted, in whole or in part, except in the following circumstances:


    (a) the commutation results from the death of the pensioner or a reversionary pensioner;


    (b) the sole purpose of the commutation is:


    (i) to pay a superannuation contributions surcharge; or

    (ii) to give effect to an entitlement of a non-member spouse under a payment split; or

    (iii) to meet the rights of a client to return a financial product under Division 5 of Part 7.9 of the Corporations Act 2001;


    (c) for a commutation in part - the account balance of the pension, immediately after the commutation, is equal to or greater than the minimum payment amount calculated in accordance with Schedule 5, as reduced by the amount of payments (excluding amounts paid by way of commutation) to the pensioner already made in the financial year in which the commutation occurs;


    (d) the pension has paid, in the financial year in which the commutation takes place, at least the minimum amount prescribed by subregulation (2).

    1.08A(2)  
    For paragraph (1)(d), the minimum amount is the amount calculated using the formula:


    Minimum annual amount × Days in payment period
    Days in financial year

    where:

    minimum annual amount
    means the minimum amount payable under the pension, in the financial year, calculated in accordance with Schedule 5.

    days in payment period
    means the number of days in the period that:


    (a) begins on:


    (i) if the pension commenced in the financial year in which the commutation is to take place - the commencement day; or

    (ii) otherwise - 1 July in that financial year; and


    (b) ends on the day on which the commutation is to take place.

    days in the financial year
    means the number of days in the financial year (365 or 366) in which the commutation takes place.

    1.08A(3)  
    (Repealed by FRLI No F2017L00321)

    REGULATION 1.09   INTERDEPENDENCY RELATIONSHIPS (ACT S 20A)  

    1.09(1)  
    For paragraph 20A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:


    (a) all of the circumstances of the relationship between the persons, including (where relevant):


    (i) the duration of the relationship; and

    (ii) whether or not a sexual relationship exists; and

    (iii) the ownership, use and acquisition of property; and

    (iv) the degree of mutual commitment to a shared life; and

    (v) the care and support of children; and

    (vi) the reputation and public aspects of the relationship; and

    (vii) the degree of emotional support; and

    (viii) the extent to which the relationship is one of mere convenience; and

    (ix) any evidence suggesting that the parties intend the relationship to be permanent;


    (b) the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.

    1.09(2)  
    For paragraph 20A(3)(b) of the Act, 2 persons have an interdependency relationship if:


    (a) they satisfy the requirements of paragraphs 20A(1)(a) to (c) of the Act; and


    (b) one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.

    Examples of care normally provided in a close personal relationship rather than by a friend or flatmate

    1. Significant care provided for the other person when he or she is unwell.

    2. Significant care provided for the other person when he or she is suffering emotionally.

    1.09(3)  
    For paragraph 20A(3)(b) of the Act, 2 persons have an interdependency relationship if:


    (a) they have a close personal relationship; and


    (b) they do not satisfy the other requirements set out in subsection 20A(1) of the Act; and


    (c) the reason they do not satisfy the other requirements is that they are temporarily living apart.

    Example for paragraph (3)(c)

    One of the persons is temporarily working overseas or is in gaol.

    1.09(4)  
    For paragraph 20A(3)(b) of the Act, 2 persons have an interdependency relationship if:


    (a) they have a close personal relationship; and


    (b) they do not satisfy the other requirements set out in subsection 20A(1) of the Act; and


    (c) the reason they do not satisfy the other requirements is that either or both of them suffer from a disability.

    1.09(5)  
    For paragraph 20A(3)(b) of the Act, 2 persons do not have an interdependency relationship if 1 of them provides domestic support and personal care to the other:


    (a) under an employment contract or a contract for services; or


    (b) on behalf of another person or organisation such as a government agency, a body corporate or a benevolent or charitable organisation.

    PART 2 - INFORMATION FOR RSA HOLDERS AND OTHERS  

    Division 2.1 - Introductory  

    REGULATION 2.01   2.01   INTERPRETATION  

    REGULATION 2.02   2.02   DUTIES AND REQUIREMENTS ARISING UNDER THIS PART  

    REGULATION 2.03   2.03   GIVING INFORMATION - REASONABLE EFFORTS SUFFICIENT  

    REGULATION 2.04   2.04   RSA HOLDERS TO WHOM RSA PROVIDERS ARE NOT REQUIRED TO GIVE INFORMATION  

    REGULATION 2.05   2.05   CHARGES FOR INFORMATION REQUESTED  

    Division 2.2 - Information before becoming an RSA holder or on employer's making an application on behalf of employee  

    REGULATION 2.06   2.06   INFORMATION TO BE GIVEN TO PROSPECTIVE RSA HOLDER  

    REGULATION 2.07   2.07   WHEN INFORMATION NEED NOT BE GIVEN TO RSA HOLDERS  

    REGULATION 2.08   2.08   INFORMATION TO BE GIVEN TO EMPLOYERS  

    REGULATION 2.09   2.09   PRESCRIBED INFORMATION - PARAGRAPH 52(2)(a) OF THE ACT  


    For paragraph 52(2)(a) of the Act, the information in the Product Disclosure Statement mentioned in subsection 1012I(2) of the Corporations Act 2001 is prescribed.

    REGULATION 2.10   2.10   INFORMATION TO BE GIVEN TO EMPLOYEES  

    Division 2.3 - Information to be given for each reporting period  

    REGULATION 2.11   2.11   OPERATING STANDARDS  

    REGULATION 2.12   2.12   REPORTING PERIODS  

    REGULATION 2.13   2.13   TIME FOR COMPLIANCE  

    REGULATION 2.14   2.14   INFORMATION TO BE GIVEN IN ALL CASES  

    REGULATION 2.15   2.15   INFORMATION TO BE GIVEN WHERE APPLICABLE  

    REGULATION 2.16   2.16   EXCEPTION - CERTAIN CASES OF RSA HOLDERS LEAVING RSA PROVIDER  

    REGULATION 2.17   2.17   EXCEPTION - RSA HOLDERS SUBJECT TO COMPULSORY PROTECTION OF SMALL AMOUNTS  

    REGULATION 2.18   2.18   EXCEPTION - RSA HOLDERS WITH SMALL AMOUNTS THAT ARE EXPECTED TO GROW QUICKLY  

    Division 2.3A - Information about RSA interest subject to payment split  

    REGULATION 2.18A   2.18A   APPLICATION OF DIVISION 2.3A  


    This Division applies to and in relation to an RSA only if, under section 1440 of the Corporations Act 2001, Divisions 4 and 5 of Part 5 of the Act (as in force immediately before the FSR commencement) continue to apply to and in relation to the RSA.
    Note:

    Section 53 of the Act provides that a person must receive certain documents before becoming an RSA holder. Regulation 7.9.89 of the Corporations Regulations 2001 requires an RSA provider that is a product issuer to provide information to a non-member spouse in relation to an RSA product issued under a payment split.

    REGULATION 2.18B   2.18B   OPERATING STANDARDS  


    For subsection 38(1) of the Act, a requirement of this Division is a standard applicable to the operation of RSAs.

    REGULATION 2.18C   INFORMATION TO BE PROVIDED BY RSA PROVIDER - GROWTH PHASE  

    2.18C(1)  
    This regulation applies if:


    (a) an RSA interest is subject to a base amount payment split; and


    (b) the interest is in the growth phase; and


    (c) none of the following has occurred as a result of a payment split:


    (i) a new RSA was opened for the non-member spouse;

    (ii) the transferable benefits of the non-member spouse were transferred or rolled out of the RSA;

    (iii) the amount to which the non-member spouse is entitled under the payment split was paid, as a lump sum, to the non-member spouse.

    2.18C(2)  
    The RSA provider must give to the member spouse and the non-member spouse the following information for each reporting period:


    (a) the value of the adjusted base amount applicable to the non-member spouse at the end of the reporting period;


    (b) the amount of the adjustment in the reporting period;


    (c) the rate of return over the reporting period.

    2.18C(3)  
    The information required under subregulation (2):


    (a) must be given as soon as practicable after the end of the relevant reporting period; and


    (b) in the case of information that is to be given to the member spouse, must be given with the information required to be given to the member spouse under Division 2.3 of the old Regulations.

    Note:

    A non-member spouse may also be entitled to information under section 1017C of the Corporations Act 2001.

    REGULATION 2.18D   OTHER INFORMATION TO BE GIVEN BY RSA PROVIDER - ADVERSE EFFECT ON BENEFITS  

    2.18D(1)  
    This regulation applies if:


    (a) an RSA interest is subject to a base amount payment split or a percentage payment split; and


    (b) the interest is in the growth phase; and


    (c) none of the following has occurred as a result of a payment split:


    (i) a new RSA was opened for the non-member spouse;

    (ii) the transferable benefits of the non-member spouse were transferred or rolled out of the RSA;

    (iii) the amount to which the non-member spouse is entitled under the payment split was paid, as a lump sum, to the non-member spouse.

    2.18D(2)  
    The RSA provider must give to the non-member spouse information about an event if the RSA provider reasonably believes that:


    (a) the event is likely to have a material effect on the RSA interest; and


    (b) the event may be adverse (whether the adverse effect would occur at the time of the event or a later time).

    2.18D(3)  
    The information required under subregulation (2) must be given before, or as soon as practicable after, the occurrence of the event.

    Division 2.4 - Information on amount of RSA  

    REGULATION 2.19   2.19   OPERATING STANDARDS  

    REGULATION 2.20   2.20   DUTY TO GIVE INFORMATION  

    Division 2.5 - Information concerning significant events  

    REGULATION 2.21   2.21   OPERATING STANDARDS  

    REGULATION 2.22   2.22   TIME FOR COMPLIANCE - EVENT  

    REGULATION 2.23   2.23   TIME FOR COMPLIANCE - INCREASE IN FEES OR CHARGES OR DECREASE IN INTEREST RATES  

    REGULATION 2.24   2.24   TIME FOR COMPLIANCE - DECISIONS OF RSA PROVIDER  

    REGULATION 2.25   2.25   INFORMATION TO BE GIVEN  

    REGULATION 2.26   2.26   CONTACT DETAILS TO ACCOMPANY INFORMATION  

    REGULATION 2.27  2.27   GENERAL REQUIREMENT  

    REGULATION 2.28   2.28   SPECIFIC REQUIREMENTS - CHANGES IN TERMS AND CONDITIONS  

    REGULATION 2.29   2.29   SPECIFIC REQUIREMENTS - BENEFIT TO BE PAID TO ELIGIBLE ROLLOVER FUND  

    REGULATION 2.30   2.30   INFORMATION ABOUT SUPERANNUATION COMPLAINTS TRIBUNAL  

    Division 2.6 - Information on request  

    REGULATION 2.31   2.31   OPERATING STANDARDS  

    REGULATION 2.32   2.32   DOCUMENTS MAY BE MADE AVAILABLE FOR INSPECTION  

    REGULATION 2.33   2.33   TIME FOR COMPLIANCE  

    REGULATION 2.34   2.34   GENERAL REQUIREMENT  

    REGULATION 2.35   2.35   SPECIFIC REQUIREMENTS  

    Division 2.7 - Information on closing RSA  

    REGULATION 2.36   2.36   APPLICATION  

    REGULATION 2.37   2.37   OPERATING STANDARDS  

    REGULATION 2.38   2.38   TIME FOR COMPLIANCE  

    REGULATION 2.39   2.39   EXIT REPORTING PERIOD  

    REGULATION 2.40   2.40   INFORMATION TO BE GIVEN IN CASES OTHER THAN DEATH OF RSA HOLDER  

    REGULATION 2.41   2.41   INFORMATION TO BE GIVEN WHERE APPLICABLE  

    REGULATION 2.42   2.42   INFORMATION TO BE GIVEN IN CASE OF DEATH OF RSA HOLDER  

    REGULATION 2.43   2.43   EXCEPTIONS TO ``EXIT REPORTING PERIOD'' PROVISIONS  

    REGULATION 2.44   2.44   EXCEPTION - RSA HOLDERS SUBJECT TO COMPULSORY PROTECTION OF SMALL AMOUNTS  

    Division 2.8 - Information to be given on transfer of lost RSA holders  

    REGULATION 2.45   2.45   APPLICATION  

    REGULATION 2.46   2.46   OPERATING STANDARD  

    REGULATION 2.47   2.47   INFORMATION TO BE GIVEN ON TRANSFER OF LOST RSA HOLDERS  

    PART 2A - CHILD ACCOUNTS  

    Division 2A.1 - Preliminary  

    REGULATION 2A.01   2A.01   OPERATING STANDARDS  

    REGULATION 2A.02   2A.02   DEFINITION FOR PART 2A  

    Division 2A.2 - Decisions about child accounts  

    REGULATION 2A.03   2A.03   DECISIONS ABOUT ACCOUNTS  

    Division 2A.3 - Transitional arrangements  

    REGULATION 2A.04   2A.04   APPLICATION OF DIVISION 3  

    REGULATION 2A.05   2A.05   DEFINITIONS FOR DIVISION 3  

    REGULATION 2A.06   2A.06   ELIGIBLE APPLICATIONS  

    REGULATION 2A.07   2A.07   ISSUE OF CHILD ACCOUNTS  

    PART 3 - BENEFIT PROTECTION STANDARDS  

    Division 3.1 - Introductory  

    REGULATION 3.01   INTERPRETATION  

    3.01(1)   [Definitions]  

    In this Part, unless the contrary intention appears:

    "administration costs"
    includes all fees and charges charged against benefits of the holder of an RSA in the RSA (whether or not charged against the contributions by or in respect of the RSA holder), other than:


    (a) the cost (if any) of providing to the RSA holder:


    (i) an insured death benefit; or

    (ii) an insured permanent or temporary incapacity benefit; and


    (b) taxation costs;

    [NOTE: Examples of "taxation costs": contributions tax, superannuation contributions surcharge.]

    "deferred annuity"
    has the same meaning as in Part 5 of the SIS Regulations;

    rolled over
    means paid as a superannuation lump sum (other than by way of being transferred) within the superannuation system.

    superannuation provider
    means:


    (a) an RSA provider; or


    (b) the trustee of a regulated superannuation fund; or


    (c) the trustee of an approved deposit fund.

    "superannuation system"
    means the system comprising:


    (a) RSAs; and


    (b) regulated superannuation funds; and


    (c) approved deposit funds; and


    (d) the Commissioner of Taxation in the Commissioner of Taxation's role as the maker of payments to a superannuation provider under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and


    (e) (Repealed by SLI No 14 of 2009)


    (f) annuities; and


    (g) deferred annuities; and


    (h) EPSSSs.

    transferred,
    in relation to the benefits of the holder of an RSA paid out of, or received by, the RSA, means paid to, or received from:


    (a) another RSA provided by an RSA institution; or


    (b) a superannuation entity; or


    (c) an EPSSS;

    otherwise than upon the satisfaction by the RSA holder of a condition of release (within the meaning of Part 4) for all those benefits.

    3.01(2)   [Payment from SHAR]  

    For the purposes of this Part, a payment from the Superannuation Holding Accounts Reserve is taken to be a mandated employer contribution.

    3.01(3)   [Lost RSA holder protection standards]  

    For the purposes of this Part, a reference to the RSA holder-protection standards having only lost-RSA holder operation in relation to a person is a reference to the RSA holder-protection standards operating to protect the benefits of that person only if the person becomes a lost RSA holder and not if he or she becomes a protected RSA holder.

    REGULATION 3.02   3.02   RSA PROVIDER MAY PROVIDE GREATER PROTECTION  
    An RSA provider has the power, despite anything in the terms and conditions of an RSA, to protect the benefits of an RSA holder to a greater degree than is required by this Part, if the RSA provider does so in a way that is consistent with this Part.

    [NOTE:

    For example, an RSA provider might choose to protect the benefits of all RSA holders with withdrawal benefits less than $1,500, rather than all protected RSA holders (ie, broadly, RSA holders with withdrawal benefits lessthan $1,000) as this Part requires. ``Protected RSA holder'' is defined in regulation 1.03.]

    Division 3.2 - Treatment of benefits  

    REGULATION 3.03   3.03   OPERATING STANDARDS  
    For the purposes of subsection 38(1) of the Act, a requirement of this Division is a standard applicable to the operation of RSAs.

    REGULATION 3.04   3.04   MINIMUM BENEFITS  
    All of the benefits of the holder of an RSA in the RSA are minimum benefits.

    REGULATION 3.05   HOW BENEFITS ARE TO BE TREATED  

    3.05(1)  
    An RSA provider must ensure that the benefits of an RSA holder are maintained until the benefits are:


    (a) cashed (in accordance with Division 4.3) as benefits of the RSA holder, other than for the purpose of the RSA holder's temporary incapacity; or


    (b) cashed under Part 4A; or


    (c) rolled over or transferred, as benefits of the RSA holder, or under Part 4A; or


    (d) transferred, rolled over or allotted under Division 4.5.

    3.05(2)  


    Subregulation (1) does not apply if, under a law of the Commonwealth, a State or a Territory mentioned in the table, a court makes a forfeiture order (however called) forfeiting part or all of the benefits of the RSA holder to the Commonwealth, a State or a Territory.


    Item Law Provision(s)
    Commonwealth
    1.1 Proceeds of Crime Act 2002 Section 47
    Section 48
    Section 49
    Section 92
    New South Wales
    2.1 Confiscation of Proceeds of Crime Act 1989 Subsection 18(1)
    2.2 Criminal Assets Recovery Act 1990 Section 22
    Victoria
    3.1 Confiscation Act 1997 Division 1 of Part 3
    Section 35
    Part 4
    Subsection 157(6)
    Queensland
    4.1 Criminal Proceeds Confiscation Act 2002 Section 58
    Section 58A
    Section 151
    Part 5 of Chapter 3
    Western Australia
    5.1 Criminal Property Confiscation Act 2000 Section 30, to the extent that it applies to confiscation under section 6 in satisfaction of a person's liability under section 20
    Section 30, to the extent that it applies to confiscation under section 7
    South Australia
    6.1 Criminal Assets Confiscation Act 2005 Section 47
    Tasmania
    7.1 Crime (Confiscation of Profits) Act 1993 Section 16
    Australian Capital Territory
    8.1 Confiscation of Criminal Assets Act 2003 Section 54
    Section 58
    Section 62
    Section 67
    Northern Territory
    9.1 Criminal Property Forfeiture Act 2002 Section 75
    Section 76
    Section 80
    Section 96
    Section 97
    Section 99

    REGULATION 3.06   MANDATED EMPLOYER CONTRIBUTIONS  

    3.06(1)   [Contributions deemed mandated employer contributions]  

    Subject to this regulation, contributions to an RSA are taken to be mandated employer contributions.

    3.06(2)   [Contributions received after one year]  

    If:


    (a) at least 1 year has elapsed since the RSA provider received the contributions in respect of the RSA; and


    (b) the RSA provider:


    (i) is satisfied that the contributions are not in fact mandated employer contributions; and

    (ii) decides not to continue to treat the contributions as mandated employer contributions;

    subregulation (1) ceases to apply to the contributions.

    3.06(3)   [Contributions received before one year]  

    If:


    (a) less than 1 year has elapsed since the RSA provider received the contributions in respect of the RSA; and


    (b) the RSA provider is satisfied that the contributions are not in fact mandated employer contributions;

    subregulation (1) ceases to apply to the contributions.

    3.06(4)   [Power of RSA provider]  

    The RSA provider has power to make a decision of the kind mentioned in subparagraph 2(b)(ii) despite anything in the terms and conditions of the RSA.

    [EXAMPLE OF THE APPLICATION OF THIS REGULATION:

    An RSA provider may receive a non-mandated employer contribution from an employer that the RSA provider does not know is a non-mandated employer contribution (ie, a contribution not made in satisfaction of the employer's superannuation guarantee or award obligation).

    On acceptance, the contribution will be taken to be a mandated employer contribution.

    From this point, one of three circumstances may apply:

  • (a) the RSA provider may become aware in the first year after the contribution was received that the contribution is a non-mandated employer contribution, and, if this is the case, the RSA provider must treat the contribution as a non-mandated employer contribution; or
  • (b) the RSA provider may become aware more than a year after the contribution was received that the contribution is a non-mandated employer contribution, and, if this is the case, the RSA provider may continue to treat the contribution as a mandated employer contribution instead of making corrections to reflect the change; or
  • (c) the RSA provider may never become aware that the contribution is a non-mandated employer contribution, and, if this is the case, the contribution will always be taken to be a mandated employer contribution.]
  • REGULATION 3.06A   PRIORITY IN DEDUCTING SURCHARGE OR INSTALMENT  

    3.06A(1)   [Obligations]  

    This regulation applies if an RSA provider has decided to reduce an RSA holder's benefits in an RSA in connection with payment of a superannuation contributions surcharge or an advance instalment of surcharge.

    3.06A(2)   [Application]  

    In reducing the RSA holder's benefits, the RSA provider must:


    (a) if possible - deduct an amount equal to the whole of the amount of the reduction from the preserved benefits; and


    (b) if the required deduction cannot be met under paragraph (a) - deduct the balance from the restricted non-preserved benefits; and


    (c) if the required deduction cannot be met under paragraphs (a) and (b) - deduct the balance from the unrestricted non-preserved benefits.

    REGULATION 3.06B   3.06B   REFUND OF COSTS  


    The RSA provider may refund to an RSA costs charged against the RSA holder's benefits in the RSA.

    Division 3.3 - RSA holder-protection standards  

    REGULATION 3.07   3.07   INTERPRETATION  


    In this Division:

    "exit fee"
    means a fee charged by an RSA provider in relation to a payment of benefits, being a fee that the RSA provider would not have charged if the payment had not been made;

    RSA holder reporting period
    means a reporting period determined in accordance with the matters mentioned in subsection 1017D(2) of the Corporations Act 2001.

    REGULATION 3.08   3.08   OPERATING STANDARDS  
    For the purposes of subsection 38(1) of the Act, a requirement of this Division is a standard applicable to the operation of RSAs.

    REGULATION 3.09   3.09   RSA HOLDER-PROTECTION STANDARDS NOT TO APPLY TO CERTAIN PROTECTED RSA HOLDERS  
    If:


    (a) an RSA holder is a protected RSA holder at the end of an RSA holder reporting period; and


    (b) the RSA provider has a reasonable expectation (in accordance with subsections 1017D(13) to (16) of the Corporations Act 2001 (as inserted by item 8.1 of Schedule 10A to the Corporations Regulations 2001) and regulation 7.9.27 of the Corporations Regulations 2001) that the RSA holder will have a withdrawal benefit of at least $1,500 within 12 months after the end of that RSA holder reporting period; and


    (c) the RSA holder's withdrawal benefits reach $1,500 within 12 months after the end of that RSA holder reporting period;

    the RSA holder is taken not to have been subject to the RSA holder-protection standards from the beginning of that RSA holder reporting period until the end of that period of 12 months.

    [NOTE:

    See regulation 2.18 in relation to protected RSA holders whose benefits are reasonably expected to reach $1,500 within the period of 12 months after the end of an RSA holder reporting period.]

    REGULATION 3.10   3.10   RSA HOLDER-PROTECTION STANDARDS NOT TO APPLY TO PENSIONS OR ANNUITIES  
    The RSA holder-protection standards do not apply to any part of the benefits of an RSA holder that has commenced to be taken in the form of a pension or annuity.

    REGULATION 3.11   3.11   RSA HOLDER-PROTECTION STANDARDS NOT TO APPLY TO TRADITIONAL LIFE INSURANCE POLICIES  
    The RSA holder-protection standards do not apply to a part of the benefits of an RSA holder that is wholly determined by a life insurance policy within the meaning of the Life Insurance Act 1995 if:


    (a) the policy includes an investment component; and


    (b) the premium is not dissected (whether by reference to the investment component or otherwise); and


    (c) the sum insured, together with bonuses (if any), is payable only upon:


    (i) the death of the life insured; or

    (ii) the occurrence of the earlier of the following events:

    (A) the death of the life insured; or

    (B) the attainment by the life insured of the age specified in the policy.

    REGULATION 3.12   RSA HOLDER-PROTECTION STANDARDS  

    3.12(1)   [Application]  

    This regulation applies in relation to an RSA holder if the RSA holder is a protected RSA holder.

    3.12(2)   [Administration costs limited]  

    The amount charged as administration costs in respect of a relevant RSA holder reporting period against the benefits of the holder of an RSA to whom this regulation applies must not exceed the amount of the investment earnings credited to the RSA for that period.

    3.12(3)   [Reporting period]  

    For subregulation (2), an RSA holder reporting period for a protected RSA holder is a relevant RSA holder reporting period if, at the end of the period, and subject to any adjustment affecting the RSA holder's benefits (net of any exit fee) made by the RSA provider in respect of the period, the RSA holder is a protected RSA holder.

    3.12(4)  


    3.12(5)   [RSA holder's benefits]  

    For the purposes of this regulation, the benefits of an RSA holder are taken to be composed wholly of mandated employer-financed benefits except for the portion (if any) of the benefits that the RSA provider knows are not mandated employer-financed benefits.

    REGULATION 3.13   3.13   COSTS NOT TO BE DEFERRED  
    If an RSA provider would charge costs against the benefits of an RSA holder in respect of an RSA holder reporting period but for regulation 3.12, the RSA provider must not charge those costs against the benefits of the RSA holder in a future RSA holder reporting period, whether in combination with other costs or not.

    PART 3A - DATA AND PAYMENT MATTERS RELATING TO RSAs  

    REGULATION 3A.01   3A.01   DEFINITIONS  


    In this Part:

    Commissioner
    means the Commissioner of Taxation.

    prescribed RSA
    - see regulation 3A.02.

    unique RSA identifier
    , for an RSA provider, means:


    (a) the ABN of the RSA provider followed by 3 numerals; or


    (b) if the RSA provider is also an RSA institution - the ABN of the RSA institution, followed by 3 numerals; or


    (c) another kind of unique identifier approved in writing by the Commissioner.

    REGULATION 3A.02   3A.02   PRESCRIBED RSA  


    For paragraph 45R(1)(a) of the Act, each RSA is a prescribed RSA.

    REGULATION 3A.03   INFORMATION TO BE GIVEN FOR REGISTER  

    3A.03(1)  
    For subsection 45R(1) of the Act, the RSA provider of a prescribed RSA must:


    (a) give the Commissioner at least one unique RSA identifier for the RSA provider; and


    (b) for each unique RSA identifier, give the Commissioner:


    (i) one set of bank details that is sufficient to enable an electronic payment to be made; and

    (ii) either:

    (A) one internet protocol address; or

    (B) one other kind of digital address approved by the Commissioner for the receipt of electronic communications.

    3A.03(2)  
    The RSA provider may give:


    (a) the same bank details for more than one unique RSA identifier; and


    (b) the same internet protocol address, or other approved digital address, for more than one unique RSA identifier.

    3A.03(3)  
    The RSA provider must tell the Commissioner the date on which the information is to be operative.

    3A.03(4)  
    The information must become operative before the later of:


    (a) 1 July 2013; and


    (b) the day the RSA provider first receives:


    (i) a contribution; or

    (ii) a rollover of an RSA holder's withdrawal benefits; or

    (iii) a transfer of an RSA holder's withdrawal benefits.

    3A.03(5)  
    If:


    (a) the RSA provider is receiving contributions, rollovers or transfers referred to in paragraph (4)(b) from an employer, a superannuation entity or another RSA provider when this Part commences; and


    (b) the RSA provider expects that the RSA will continue to receive those contributions, rollovers or transfers on or after 1 July 2013;

    the RSA provider must give the information referred to in subregulation (1) to the Commissioner no later than 30 days after the commencement day.

    3A.03(6)  
    If subregulation (5) does not apply, the RSA provider must give the information referred to in subregulation (1) to the Commissioner on or before the later of:


    (a) 30 days after the commencement day; and


    (b) 10 business days before the day the RSA provider first receives:


    (i) a contribution; or

    (ii) a rollover of an RSA holder's withdrawal benefits; or

    (iii) a transfer of RSA holder's withdrawal benefits.

    3A.03(7)  
    If the RSA provider of a prescribed RSA proposes to change any information given for the RSA under this regulation, the RSA provider must give the changed information to the Commissioner no later than 10 business days before the new information is to be operative for the RSA.

    3A.03(8)  
    In this regulation:

    commencement day
    means the day on which Schedule 1 to the Retirement Savings Accounts and Related Legislation Amendment Regulation 2013 (No. 1) commences.

    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 ground listed in subregulation 4.22A(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;

    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.

    REGULATION 4.01AA   MEANING OF NON-COMMUTABLE ALLOCATED PENSION  

    4.01AA(1)  
    In this Part and Schedule 2,

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


    (a) meet the standards of subregulation 1.07(2); and


    (b) ensure that, if the pension is commuted, the resulting superannuation lump sum cannot be cashed unless:


    (i) the purpose of the commutation is mentioned in subregulation (2); 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"; or

    (iii) the purpose of the commutation is to satisfy an obligation to pay an amount to the Commissioner of Taxation under subsection 20F(1) of the Superannuation (Unclaimed Money and Lost Members) Act 1999.

    4.01AA(2)  
    For subparagraph (1)(b)(i), the purpose is any of the following:


    (a) to cash an unrestricted non-preserved benefit;


    (b) to pay a superannuation contributions surcharge;


    (c) to give effect to an entitlement of a non-member spouse under a payment split;


    (d) to ensure that a payment may be made under Division 131 or 135 in Schedule 1 to the Taxation Administration Act 1953, or section 292-80C of the Income Tax (Transitional Provisions) Act 1997, for the purpose of giving effect to a release authority.

    REGULATION 4.01A   4.01A   MEANING OF TERMINAL MEDICAL CONDITION  


    For Schedule 2, a terminal medical condition exists in relation to a person at a particular time if the following circumstances exist:


    (a) two registered medical practitioners have certified, jointly or separately, that the person suffers from an illness, or has incurred an injury, that is likely to result in the death of the person within a period (the certification period ) that ends not more than 24 months after the date of the certification;


    (b) at least one of the registered medical practitioners is a specialist practicing in an area related to the illness or injury suffered by the person;


    (c) for each of the certificates, the certification period has not ended.

    REGULATION 4.01B   CONDITIONS OF RELEASE FOR TEMPORARY RESIDENTS  

    4.01B(1)  
    This regulation applies to an RSA holder who is or was a temporary resident.

    4.01B(2)  
    This regulation does not apply to an RSA holder who:


    (a) is an Australian citizen, a New Zealand citizen or a permanent resident; or


    (b) is, at any time, the holder of a Subclass 405 (Investor Retirement) visa or a Subclass 410 (Retirement) visa described in Schedule 2 to the Migration Regulations 1994.

    4.01B(3)  
    The only conditions of release that can be satisfied in respect of an RSA holder to whom this regulation applies are:


    (a) a condition of release that was satisfied by the RSA holder before 1 April 2009; and


    (b) the conditions of release in items 102, 102A, 103, 104, 104A, 108, 111A and 111B of Schedule 2.

    REGULATION 4.02   4.02   OPERATING STANDARDS  

    REGULATION 4.03   4.03   RSA CHANGEOVER DAY  


    A decision by an RSA provider under these Regulations as in force before 30 June 1998 to fix a day in the 1998 calendar year as an RSA changeover day is taken never to have been made.

    Subdivision 4.1.2 - Preserved benefits  

    REGULATION 4.04   4.04   PRESERVED BENEFITS - BEFORE 1 JULY 1999  


    Subject to regulations 4.08 and 4.14 and to Subdivision 4.1.5, the amount of the preserved benefits of the holder of an RSA in the RSA at any time before 1 July 1999 is the sum of:


    (a) the amount of any benefits arising directly or indirectly from amounts contributed to the RSA by an employer on behalf of the RSA holder; and


    (b) the amount of the RSA holder-financed benefits arising from contributions (other than undeducted contributions) made to the RSA in relation to the RSA holder; and


    (c) the amount of benefits arising from payments from the Superannuation Holding Accounts Special Account; and


    (d) the amount of benefits arising from eligible spouse contributions; and


    (e) the amount of benefits arising from a capital gains tax exempt component rolled over to the RSA because of subsection 160ZZPZF(1), 160ZZPZH(7) or 160ZZPZI(5) of the Tax Act.

    REGULATION 4.05   4.05   PRESERVED BENEFITS - ON AND AFTER 1 JULY 1999  


    Subject to regulation 4.14 and to Subdivision 4.1.5, the amount of the preserved benefits of the holder of an RSA in the RSA at any time on or after 1 July 1999 is the amount of the RSA holder's benefits less the sum of:


    (a) the amount of the RSA holder's restricted non-preserved benefits as defined by regulation 4.10; and


    (b) the amount of the RSA holder's unrestricted non-preserved benefits as defined by regulation 4.13.

    REGULATION 4.06   4.06   PRESERVED BENEFITS - ROLLOVER OR TRANSFER FROM REGULATED SUPERANNUATION FUNDS DURING 1997 OR 1998  

    REGULATION 4.07   4.07   PRESERVED BENEFITS - ROLLOVER OR TRANSFER BETWEEN RSAs DURING 1998  

    REGULATION 4.08   4.08   EFFECT OF ROLLOVER OR TRANSFER ON PRESERVED BENEFITS  


    Subject to regulation 4.14 and to Subdivision 4.1.5, the benefits of the holder of an RSA in the RSA that were preserved benefits in the source from which they were receivedcontinue to be preserved benefits in that RSA.

    Subdivision 4.1.3 - Restricted non-preserved benefits  

    REGULATION 4.09   4.09   RESTRICTED NON-PRESERVED BENEFITS - BEFORE 1 JULY 1999  


    Subject to regulations 4.12 and 4.14 and to Subdivision 4.1.5, the amount of the restricted non-preserved benefits of the holder of an RSA in the RSA at any time before 1 July 1999 is the amount of the RSA holder's benefits, less the sum of:


    (a) the amount of the RSA holder's preserved benefits as defined by regulation 4.04; and


    (b) the amount of the RSA holder's unrestricted non-preserved benefits as defined by regulation 4.13.

    REGULATION 4.10   RESTRICTED NON-PRESERVED BENEFITS - ON AND AFTER 1 JULY 1999  

    4.10(1)   [Amount]  

    Subject to regulations 4.12 and 4.14 and to Subdivision 4.1.5, the amount of the restricted non-preserved benefits of the holder of an RSA in the RSA at any time on or after 1 July 1999 is the sum of the following amounts:


    (a) the RSA holder's restricted non-preserved benefits on 30 June 1999 worked out under regulation 4.09;


    (b) any restricted non-preserved benefits received by the RSA for the RSA holder from another RSA, a regulated superannuation fund or an EPSSS on and after 1 July 1999.

    4.10(2)   [Preserved benefits]  

    However, if:


    (a) on or after 1 July 1999, a deduction is allowed for the RSA holder under the former section 82AAT of the Income Tax Assessment Act 1936 for an RSA holder contribution made before 1 July 1999; and


    (b) the benefits arising from the contribution were previously allocated to restricted non-preserved benefits;

    the benefits are taken to be preserved benefits.

    REGULATION 4.11   4.11   RESTRICTED NON-PRESERVED BENEFITS - ROLLOVER OR TRANSFER FROM REGULATED SUPERANNUATION FUNDS DURING 1997 OR 1998  

    REGULATION 4.12   4.12   EFFECT OF ROLLOVER OR TRANSFER ON RESTRICTED NON-PRESERVED BENEFITS  


    Subject to regulation 4.14 and to Subdivision 4.1.5, the benefits of the holder of an RSA in the RSA that were restricted non-preserved benefits in the source from which they were received continue to be restricted non-preserved benefits in that RSA.

    Subdivision 4.1.4 - Unrestricted non-preserved benefits  

    REGULATION 4.13   UNRESTRICTED NON-PRESERVED BENEFITS  

    4.13(1)   [Amount of unrestricted non-preserved benefits]  

    Subject to Subdivision 4.1.5, the amount of the unrestricted non-preserved benefits of the holder of an RSA in the RSA is the sum of:


    (a) the amount of benefits of the RSA holder that have become unrestricted non-preserved benefits in accordance with regulation 4.14; and


    (b) the amounts specified in subregulation (2) that the RSA institution receives, before 1 July 2004, in respect of the RSA holder; and


    (c) the amount of unrestricted non-preserved benefits received by the RSA institution in respect of the RSA holder; and


    (d) the amount of any investment earnings for the period before 1 July 1999 on the amounts mentioned in paragraphs (a), (b) and (c).

    4.13(2)   [Amounts specified under subreg (1)(b)]  

    The amounts mentioned in paragraph (1)(b) are amounts (other than an amount that is a capital gains tax exempt component) that:


    (a) will be taken by section 27D of the Tax Act, as in force before 1 July 2007, to have been expended out of eligible termination payments within the meaning of that section; and


    (b) have been received from sources other than:


    (i) RSAs; or

    (ii) superannuation funds within the meaning of the SIS Act; or

    (iii) approved deposit funds within the meaning of:

    (A) the SIS Act; or

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

    (iv) deferred annuities within the meaning of:

    (A) this Part; or

    (B) the Occupational Superannuation Standards Regulations.

    4.13(3)   [Preserved benefits]  

    However, if:


    (a) on or after 1 July 1999, a deduction is allowed for the RSA holder under the former section 82AAT of the Income Tax Assessment Act 1936 for an RSA holder contribution made before 1 July 1999; and


    (b) the benefits arising from the contribution were previously allocated to restricted non-preserved benefits that became unrestricted non-preserved benefits under subregulation 4.14(2);

    the benefits are taken to be preserved benefits.

    REGULATION 4.14   MOVEMENT OF BENEFITS BETWEEN CATEGORIES BY SATISFACTION OF CONDITIONS OF RELEASE  

    4.14(1)   [Preserved benefits becoming unrestricted non-preserved benefits]  

    If:


    (a) an RSA holder satisfies a condition of release; and


    (b) the relevant cashing restriction in respect of preserved benefits is ``Nil'';

    the RSA holder's preserved benefits in the RSA at that time cease to be preserved benefits and become unrestricted non-preserved benefits.

    4.14(2)   [Restricted non-preserved benefits becoming unrestricted non-preserved benefits]  

    If:


    (a) an RSA holder satisfies a condition of release; and


    (b) the relevant cashing restriction in respect of restricted non-preserved benefits is ``Nil'';

    the RSA holder's restricted non-preserved benefits in the RSA at that time cease to be restricted non-preserved benefits and become unrestricted non-preserved benefits.

    4.14(3)   [Application of Subdiv 4.1.5]  

    This regulation has effect subject to Subdivision 4.1.5.

    REGULATION 4.15   4.15   EFFECT OF ROLLOVER OR TRANSFER ON UNRESTRICTED NON-PRESERVED BENEFITS  
    Subject to Subdivision 4.1.5, the benefits of the holder of an RSA in the RSA that were unrestricted non-preserved benefits in the source from which they were received continue to be unrestricted non-preserved benefits in that RSA.

    Subdivision 4.1.5 - Miscellaneous  

    REGULATION 4.16   4.16   INDEXATION  

    REGULATION 4.17   CONTRIBUTIONS AND BENEFITS TAKEN TO BE PRESERVED BENEFITS  

    4.17(1)   [Contributions, etc]  

    Contributions made, or benefits rolled over or transferred, to an RSA are taken to be preserved benefits for the purposes of this Division unless and until the RSA provider is satisfied that they are not preserved benefits.

    4.17(2)   [Benefits under Div 4.5]  

    Benefits rolled over, transferred or allotted under Division 4.5 to an RSA held by, or created for, a receiving spouse are taken to be preserved benefits for the purposes of this Division.

    REGULATION 4.17A   4.17A   WHEN BENEFITS ROLLED OVER OR TRANSFERRED ARE UNRESTRICTED NON-PRESERVED BENEFITS  


    Benefits rolled over or transferred to an RSA are unrestricted non-preserved benefits if:


    (a) the benefits were rolled over or transferred from:


    (i) a superannuation fund ( FundA ) during its transitional period; or

    (ii) a regulated superannuation fund or an approved deposit fund to which the benefits were rolled over or transferred from a superannuation fund ( Fund B ) during its transitional period; and


    (b) the RSA provider is reasonably satisfied that:


    (i) during the transitional period of Fund A or Fund B, there arose in relation to the benefits a circumstance that would have resulted in the satisfaction of a condition of release and a ``Nil'' cashing restriction if the SIS Regulations applied; or

    (ii) before the benefits were rolled over or transferred to Fund A or Fund B from a regulated superannuation fund or an approved deposit fund, the relevant cashing restriction set out in Schedule 1 of the SIS Regulations in respect of the benefits was ``Nil''.

    REGULATION 4.17B   INVESTMENT EARNINGS TAKEN TO BE UNRESTRICTED NON-PRESERVED BENEFITS  

    4.17B(1)   [Non-commutable life pensions]  

    An investment earning in relation to a benefit of any kind is an unrestricted non-preserved benefit on a day if:


    (a) the benefit was cashed, before that day, in the form of a non-commutable life pension; and


    (b) for a benefit that was commenced under the condition of release mentioned in item 108B of Schedule 2, 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) the pension commenced to be paid before that day.

    4.17B(2)   [Non-commutable life annuities]  

    An investment earning in relation to a benefit of any kind is an unrestricted non-preserved benefit on a day if:


    (a) the benefit was cashed, before that day, in the form of a non-commutable life annuity; and


    (b) for a benefit that was commenced under the condition of release mentioned in item 108B of Schedule 2, the annuitant 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) the annuity commenced to be paid before that day.

    4.17B(3)   [Pensions]  

    An investment earning in relation to a benefit is an unrestricted non-preserved benefit on a day if:


    (a) the benefit is an unrestricted non-preserved benefit; and


    (b) the benefit was cashed, before that day, in the form of a pension; and


    (c) for a benefit that was commenced under the condition of release mentioned in item 108B of Schedule 2, 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


    (d) the pension commenced to be paid before that day.

    4.17B(4)   [Annuities]  

    An investment earning in relation to a benefit is an unrestricted non-preserved benefit on a day if:


    (a) the benefit is an unrestricted non-preserved benefit; and


    (b) the benefit was cashed, before that day, in the form of an annuity; and


    (c)for a benefit that was commenced under the condition of release mentioned in item 108B of Schedule 2, the annuitant has satisfied a condition of release in respect of which the cashing restriction for preserved benefits and restricted non-preserved benefits is `Nil'; and


    (d) the annuity commenced to be paid before that day.

    REGULATION 4.18   REDISTRIBUTION OF BENEFITS BY OPERATION OF TERMS AND CONDITIONS OR ACTION OF RSA PROVIDER  

    4.18(1)   [Categories of benefits]  

    For the purpose of subregulation (2), the following are categories of benefits of an RSA holder:


    (a) preserved benefits, as defined by Subdivision 4.1.2;


    (b) restricted non-preserved benefits, as defined by Subdivision 4.1.3;


    (c) unrestricted non-preserved benefits, as defined by Subdivision 4.1.4.

    4.18(2)   [Limits to effects on member's benefits]  

    For the purposes of this Part, the terms and conditions of an RSA, or the RSA provider, may alter the category of any benefits but, subject to subregulation (3), not so as to:


    (a) decrease the amount of the RSA holder's preserved benefits in the RSA; or


    (b) increase the amount of the RSA holder's unrestricted non-preserved benefits in the RSA.

    4.18(3)   [Trustee may alter category of benefits]  

    The RSA provider may alter the category of benefits from preserved benefits or restricted non-preserved benefits to unrestricted non-preserved benefits if, before the commencement of regulation 4.17A:


    (a) the benefits were rolled over or transferred from:


    (i) a superannuation fund ( Fund A ) during its transitional period; or

    (ii) a regulated superannuation fund or an approved deposit fund to which the benefits were rolled over or transferred from a superannuation fund ( Fund B ) during its transitional period; and


    (b) the RSA provider is reasonably satisfied that:


    (i) during the transitional period of Fund A or Fund B, there arose in relation to the benefits a circumstance that would have resulted in the satisfaction of a condition of release and a ``Nil'' cashing restriction if the SIS Regulations applied; or

    (ii) before the benefits were rolled over or transferred to Fund A or Fund B from a regulated superannuation fund or an approved deposit fund, the relevant cashing restriction set out in Schedule 1 of the SIS Regulations in respect of the benefits was ``Nil''.

    Division 4.2 - Payment of benefits  

    REGULATION 4.19   4.19   OPERATING STANDARDS  
    For the purposes of subsection 38(1) of the Act, the standard set out in regulation 4.20 is applicable to the operation of RSAs.

    REGULATION 4.20   RESTRICTION ON PAYMENT  

    4.20(1)  
    The benefits of an RSA holder:


    (a) may be paid only by:


    (i) being cashed under Division 4.3 or Part 4A; or

    (ii) being rolled over or transferred under Division 4.4, 4.4A or 4.5 or Part 4A; or

    (iii) being allotted under Division 4.5; and


    (b) must not be paid except when, and to the extent that, the RSA provider is required or permitted under this Part or Part 4A to pay them; and


    (c) must be paid when, and to the extent that, the RSA provider is required under this Part or Part 4A to pay them.

    4.20(1A)  


    Subregulation (1) does not apply if, under a law of the Commonwealth, a State or a Territory mentioned in the table, a court makes a forfeiture order (however called) forfeiting part or all of the benefits of the RSA holder to the Commonwealth, a State or a Territory.


    Item Law Provision(s)
    Commonwealth
    1.1 Proceeds of Crime Act 2002 Section 47
    Section 48
    Section 49
    Section 92
    New South Wales
    2.1 Confiscation of Proceeds of Crime Act 1989 Subsection 18(1)
    2.2 Criminal Assets Recovery Act 1990 Section 22
    Victoria
    3.1 Confiscation Act 1997 Division 1 of Part 3
    Section 35
    Part 4
    Subsection 157(6)
    Queensland
    4.1 Criminal Proceeds Confiscation Act 2002 Section 58
    Section 58A
    Section 151
    Part 5 of Chapter 3
    Western Australia
    5.1 Criminal Property Confiscation Act 2000 Section 30, to the extent that it applies to confiscation under section 6 in satisfaction of a person's liability under section 20
    Section 30, to the extent that it applies to confiscation under section 7
    South Australia
    6.1 Criminal Assets Confiscation Act 2005 Section 47
    Tasmania
    7.1 Crime (Confiscation of Profits) Act 1993 Section 16
    Australian Capital Territory
    8.1 Confiscation of Criminal Assets Act 2003 Section 54
    Section 58
    Section 62
    Section 67
    Northern Territory
    9.1 Criminal Property Forfeiture Act 2002 Section 75
    Section 76
    Section 80
    Section 96
    Section 97
    Section 99

    4.20(2)  
    If an RSA provider does not make a payment in accordance with the standard set out in subregulation (1) because the RSA provider is prevented from doing so:


    (a) under subsection 90ML(4) of the Family Law Act 1975; or


    (b) by an order made under subsection 90MU(1) of the Family Law Act 1975;

    the RSA provider is not in breach of the standard.

    Note:

    Subsection 90ML(4) of the Family Law Act 1975 provides that while a payment flag is operating on a superannuation interest, the RSA provider must not make any splittable payment to any person in respect of the interest. Subsection 90MU(1) of the Family Law Act 1975 provides that a court may make an order in relation to a superannuation interest directing the RSA provider not to make a splittable payment without the leave of the court.

    REGULATION 4.20A   4.20A   PAYMENT AND COMMUTATION OF PENSION IN BREACH OF STANDARDS  


    If an RSA provider provides a pension under rules which meet the standards of subregulation 1.07(3A), the RSA provider must not:


    (a) pay the pension in a way that does not meet the standards of that subregulation; or


    (b) allow the pension to be commuted except in accordance with that subregulation.

    Division 4.3 - Cashing of benefits  

    REGULATION 4.21   VOLUNTARY CASHING OF PRESERVED BENEFITS  

    4.21(1)   [Condition for cashing benefits]  

    The preserved benefits of an RSA holder may be cashed on or after the satisfaction by the RSA holder of a condition of release.

    Note:

    For conditions of release for temporary residents, see regulation 4.01B.

    4.21(2)   [Amount that may be cashed]  

    The amount of preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the sum of:


    (a) the amount of preserved benefits of the RSA holder that had accrued at the time when the RSA holder satisfied the condition of release; and


    (b) before 1 July 1999 - the amount of any investment earnings accruing on those benefits from the time when the RSA holder satisfied the condition of release.

    4.21(3)   [Form in which benefits may be cashed]  

    Subject to subregulation (4), the form in which preserved benefits may be cashed under this regulation is, unless the satisfied condition of release is the death of the RSA holder:


    (a) a form (if any) specified in Schedule 2 as a cashing restriction relating to the condition of release; or


    (b) if the specified cashing restriction is 'Nil' - any 1 or more of the following forms:


    (i) 1 or more lump sums;

    (ii) 1 or more pensions;

    (iii) the purchase of 1 or more annuities under the SIS Regulations.
    Note:

    For the cashing requirement applying on the death of the RSA holder, see regulation 4.24.

    4.21(4)   [Benefits cashed in a lump sum]  

    A lump sum mentioned in subparagraph (3)(b)(i) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 4.24(3)(a).

    REGULATION 4.22   VOLUNTARY CASHING OF RESTRICTED NON-PRESERVED BENEFITS  

    4.22(1)   [Condition for cashing benefits]  

    The restricted non-preserved benefits of an RSA holder may be cashed on or after the satisfaction by the RSA holder of a condition of release.

    Note:

    For conditions of release for temporary residents, see regulation 4.01B.

    4.22(2)   [Amount that may be cashed]  

    The amount of restricted non-preserved benefits that may be cashed in accordance with subregulation (1) must not exceed the amount of:


    (a) the restricted non-preserved benefits of the RSA holder that had accrued at the time when the RSA holder satisfied the condition of release; and


    (b) before 1 July 1999 - any investment earnings accruing on those benefits from the time when the RSA holder satisfied the condition of release.

    4.22(3)   [Form in which benefits may be cashed]  

    Subject to subregulation (4), the form in which restricted non-preserved benefits may be cashed under this regulation is, unless the satisfied condition of release is the death of the RSA holder:


    (a) a form (if any) specified in Schedule 2 as a cashing restriction relating to the condition of release; or


    (b) if the specified cashing restriction is `Nil' - any 1 or more of the following forms:


    (i) 1 or more lump sums;

    (ii) 1 or more pensions;

    (iii) the purchase of 1 or more annuities under the SIS Regulations.
    Note:

    For the cashing requirement applying on the death of the RSA holder, see regulation 4.24.

    4.22(4)   [Benefits cashed in a lump sum]  

    A lump sum mentioned in subparagraph (3)(b)(i) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 4.24(3)(a).

    REGULATION 4.22A   RELEASE OF BENEFITS ON COMPASSIONATE GROUNDS  

    4.22A(1)  


    A person may apply to the Regulator for a determination that an amount of the person's preserved benefits, or restricted non-preserved benefits, in a specified RSA may be released on the ground that it is required:


    (a) to pay for medical treatment or medical transport for the person or a dependant; or


    (b) to enable the person to make a payment on a loan, to prevent:


    (i) foreclosure of a mortgage on the person's principal place of residence; or

    (ii) exercise by the mortgagee of an express, or statutory, power of sale over the person's principal place of residence; or


    (c) to modify the person's principal place of residence, or vehicle, to accommodate the special needs of the person, or a dependant, arising from severe disability; or


    (d) to pay for expenses associated with the person's palliative care, in the case of impending death; or


    (e) to pay for expenses associated with a dependant's:


    (i) palliative care, in the case of impending death; or

    (ii) death; or

    (iii) funeral; or

    (iv) burial; or


    (f) to meet expenses in other cases where the release is consistent with a ground mentioned in paragraphs (a) to (e), as the Regulator determines.

    4.22A(2)  


    The Regulator must determine in writing that, for subregulation 4.21(1) or 4.22(2), the person satisfies a condition of release on a compassionate ground if the Regulator considers that:


    (a) the release is required on a ground mentioned in subregulation (1); and


    (b) the person does not have the financial capacity to meet an expense arising from that ground.

    4.22A(3)  


    The Regulator cannot be satisfied that the money is required for medical treatment unless 2 registered medical practitioners (at least one of whom must be a specialist) certify that:


    (a) the medical treatment is necessary to:


    (i) treat a life threatening illness or injury; or

    (ii) alleviate acute, or chronic, pain; or

    (iii) alleviate an acute, or chronic, mental disturbance; and


    (b) the treatment is not readily available to the person, or the dependant, through the public health system.

    4.22A(4)  


    The Regulator cannot be satisfied that the money is required for medical transport unless the medical treatment for which the medical transport is required has been certified, under subregulation (3), as necessary for a reason mentioned in paragraph (3)(a).

    4.22A(5)  


    The Regulator cannot be satisfied that the money is required on the ground mentioned in paragraph (1)(b) unless the person gives to the Regulator a written statement from the mortgagee that:


    (a) payment of an amount is overdue; and


    (b) if the person fails to pay the amount, the mortgagee will:


    (i) foreclose the mortgage on the person's principal place of residence; or

    (ii) exercise its express, or statutory, power of sale over the person's principal place of residence.

    4.22A(6)  
    A statement under subregulation (5) must include the following information:


    (a) the amount that is equal to 3 months' repayments under the mortgage; and


    (b) the amount that is 12 months' interest on the outstanding balance of the loan at the time the statement is made.

    4.22A(6A)  


    A determination under this regulation must specify the RSA provider and the amount of the preserved benefits, or restricted non-preserved benefits, that may be released.

    4.22A(6B)  


    If the Regulator makes a determination under this regulation, the Regulator must give a copy of the determination to the person and the specified RSA provider.

    4.22A(7)  
    In this regulation:

    "medical transport"
    means transport, for medical attention, by land, water or air.

    REGULATION 4.23   VOLUNTARY CASHING OF UNRESTRICTED NON-PRESERVED BENEFITS  

    4.23(1)   [Condition for cashing benefits]  

    The unrestricted non-preserved benefits of an RSA holder may be cashed at any time.

    4.23(2)   [Amount that may be cashed]  

    The amount of unrestricted non-preserved benefits that may be cashed in accordance with subregulation (1) is the whole or part of the RSA holder's unrestricted non-preserved benefits.

    4.23(3)   [Form in which benefits may be cashed]  

    Subject to subregulation (4), the form in which unrestricted non-preserved benefits may be cashed under this regulation is, unless the cashing occurs in consequence of the death of the RSA holder, any 1 or more of the following forms:


    (a) 1 or more lump sums;


    (b) 1 or more pensions;


    (c) the purchase of 1 or more annuities under the SIS Regulations.

    Note:

    For the cashing requirement applying on the death of the RSA holder, see regulation 4.24.

    4.23(4)   [Benefits cashed in a lump sum]  

    A lump sum mentioned in paragraph (3)(a) must be payable not later than the time for the payment of a lump sum mentioned in paragraph 4.24(3)(a).

    REGULATION 4.23A   COMPULSORY CASHING OF BENEFITS - TEMPORARY RESIDENTS  

    4.23A(1)  


    This regulation applies to the benefits of an RSA holder if:


    (a) the RSA holder:


    (i) was a temporary resident; and

    (ii) is not an Australian citizen, New Zealand citizen or permanent resident; and

    (iii) has left Australia; and


    (b) the RSA holder's visa has ceased to be in effect.

    4.23(1A)  


    The RSA holder's benefits must be cashed if:


    (a) the RSA provider receives a request from the RSA holder that the benefits be cashed; and


    (b) subregulation (2) or (3) is complied with.

    4.23A(2)  
    If the RSA holder's withdrawal benefit in the RSA is less than $5 000, the RSA provider must receive:


    (a) a copy, or other evidence, of a visa showing that the RSA holder was a temporary resident but the RSA holder's temporary visa has ceased to be in effect; and


    (b) a copy of the RSA holder's passport showing that the RSA holder has left Australia.

    Note

    For the ways of giving evidence of a visa, see regulation 2.17 of the Migration Regulations 1994.

    4.23A(3)  


    The RSA provider must be satisfied, based on a written statement from the Department administered by the Minister administering the Migration Act 1958, that:


    (a) the RSA holder was a temporary resident but the RSA holder's temporary visa has ceased to be in effect; and


    (b) the RSA holder has left Australia.

    4.23A(3A)  


    For subregulation (3), the statement may be in electronic form.

    4.23A(4)  
    The benefits must be cashed in the period mentioned in subregulation (5):


    (a) as a single lump sum that is at least the amount of the RSA holder's withdrawal benefit in the RSA; or


    (b) if the RSA provider receives any combination of contributions, transfers and rollovers after cashing the benefits:


    (i) in a way that ensures that an amount that is at least the amount of the RSA holder's withdrawal benefit in the RSA is cashed; and

    (ii) without requiring an additional application from the member.

    4.23A(5)  
    For subregulation (4), the period is:


    (a) if the RSA provider receives a request from the RSA holder not later than 31 October 2002 - 3 months after the request is lodged; and


    (b) in any other case - 28 days after the request is lodged.

    Note:

    A payment made under this regulation is a departing Australia superannuation payment within the meaning of section 301-170 of the 1997 Tax Act.

    REGULATION 4.23B   4.23B   CASHING OF BENEFITS IN AN RSA - PAYMENT TO COMMISSIONER OF TAXATION  


    If an RSA provider is required to pay an amount to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999 for a person's interest in an RSA, the amount must be cashed in favour of the Commissioner of Taxation as a lump sum.
    Note

    An amount to be paid under the Superannuation (Unclaimed Money and Lost Members) Act 1999 must be paid by the time required under that Act.

    REGULATION 4.24   COMPULSORY CASHING OF BENEFITS  

    4.24(1)  


    Subject to subregulation (4), an RSA holder's benefits in an RSA must be cashed as soon as practicable after the RSA holder dies.

    4.24(2)  
    (Repealed by SLI No 104 of 2007)

    4.24(3)  


    The form in which benefits may be cashed under this regulation is:


    (a) a single lump sum in respect of each person to whom benefits are cashed; or


    (b) subject to subregulations (3A) and (3B):


    (i) 1 or more pensions, each of which is a superannuation income stream that is in the retirement phase; or

    (ii) the purchase of 1 or more annuities under the SIS Regulations, each of which is a superannuation income stream that is in the retirement phase.
    Note:

    For the cashing requirement applying on the death of the RSA holder, see regulation 4.24.

    4.24(3A)  


    If an RSA holder dies on or after 1 July 2007, subparagraphs (3)(b)(i) and (ii) apply to an entitled recipient only if, at the time of the RSA holder's death, the entitled recipient:


    (a) is a dependant of the RSA holder; and


    (b) in the case of a child of the RSA holder:


    (i) is less than 18 years of age; or

    (ii) being 18 or more years of age:

    (A) is financially dependant on the RSA holder and less than 25 years of age; or

    (B) has a disability of the kind described in subsection 8(1) of the Disability Services Act 1986.

    4.24(3B)  


    If benefits in relation to a deceased RSA holder are being paid to a child of the deceased RSA holder in the form of a pension in accordance with subregulation (3A), the benefits must be cashed as a lump sum on the earlier of:


    (a) the day on which the pension is commuted, or the term of the pension expires (unless the benefit is rolled over to commence a new annuity or pension); and


    (b) the day on which the child attains age 25;unless the child has a disability of the kind described in subsection 8(1) of the Disability Services Act 1986 on the day that would otherwise be applicable under paragraph (a) or (b).

    4.24(4)  


    For the purposes of subregulation (1), it is sufficient if, instead of being cashed, the benefits are rolled over as soon as practicable for immediate cashing.

    4.24(5)  
    (Repealed by SLI No 104 of 2007)

    4.24(6)  
    (Repealed by SLI No 104 of 2007)

    REGULATION 4.25   4.25   EFFECT OF ROLLOVER OR TRANSFER ON POST-65 EMPLOYER-FINANCED BENEFITS  
    Benefits of an RSA holder that were post-65 employer-financed benefits in the source from which they were received continue to be post-65 employer-financed benefits in that RSA.

    REGULATION 4.26   LIMITATION ON CASHING OF BENEFITS IN FAVOUR OF PERSONS OTHER THAN RSA HOLDERS OR THEIR LEGAL PERSONAL REPRESENTATIVES  

    4.26(1)  


    Subject to subregulation (1A) and regulations 4.27, 4A.24 and 4A.28, an RSA holder's interest in an RSA must not be cashed in favour of a person other than the RSA holder or the RSA holder's legal personal representative:


    (a) unless:


    (i) the RSA holder has died; and

    (ii) the conditions of subregulation (2) or (3) are satisfied; or


    (b) unless the conditions of subregulation (4) or (5) are satisfied.

    4.26(1A)  


    Subregulation (1) does not apply if, under a law of the Commonwealth, a State or a Territory mentioned in the table, a court makes a forfeiture order (however called) forfeiting part or all of the benefits of the RSA holder to the Commonwealth, a State or a Territory.


    Item Law Provision(s)
    Commonwealth
    1.1 Proceeds of Crime Act 2002 Section 47
    Section 48
    Section 49
    Section 92
    New South Wales
    2.1 Confiscation of Proceeds of Crime Act 1989 Subsection 18(1)
    2.2 Criminal Assets Recovery Act 1990 Section 22
    Victoria
    3.1 Confiscation Act 1997 Division 1 of Part 3
    Section 35
    Part 4
    Subsection 157(6)
    Queensland
    4.1 Criminal Proceeds Confiscation Act 2002 Section 58
    Section 58A
    Section 151
    Part 5 of Chapter 3
    Western Australia
    5.1 Criminal Property Confiscation Act 2000 Section 30, to the extent that it applies to confiscation under section 6 in satisfaction of a person's liability under section 20
    Section 30, to the extent that it applies to confiscation under section 7
    South Australia
    6.1 Criminal Assets Confiscation Act 2005 Section 47
    Tasmania
    7.1 Crime (Confiscation of Profits) Act 1993 Section 16
    Australian Capital Territory
    8.1 Confiscation of Criminal Assets Act 2003 Section 54
    Section 58
    Section 62
    Section 67
    Northern Territory
    9.1 Criminal Property Forfeiture Act 2002 Section 75
    Section 76
    Section 80
    Section 96
    Section 97
    Section 99

    4.26(2)  
    The conditions of this subregulation are satisfied if the benefits are cashed in favour of either or both of the following:


    (a) the RSA holder's legal personal representative;


    (b) one or more of the RSA holder's dependants.

    4.26(3)  
    The conditions of this subregulation are satisfied if:


    (a) the RSA provider has not, after making reasonable inquiries, found either a legal personal representative, or a dependant, of the RSA holder; and


    (b) the person in whose favour the benefits are cashed is an individual.

    4.26(4)  


    The conditions of this subregulation are satisfied if:


    (a) the RSA provider has received a release authority in respect of the RSA holder under section 131-15 or 135-40 in Schedule 1 to the Taxation Administration Act 1953; and


    (b) the benefits are cashed in favour of the Commissioner of Taxation in accordance with the authority.

    4.26(5)  


    The conditions of this subregulation are satisfied if the RSA holder's benefits are cashed in favour of the Commissioner of Taxation to pay an amount to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999.

    REGULATION 4.27   4.27   WHEN BENEFITS MAY BE CASHED IN FAVOUR OF PERSONS OTHER THAN RSA HOLDERS  
    The benefits of an RSA holder may be cashed in favour of a person other than the RSA holder if:


    (a) the cashing is approved in writing by APRA for the purposes of paragraph 15(4)(d) of the Act; and


    (b) the benefits are cashed only to the extent of that approval.

    REGULATION 4.28   EFFECT OF PAYMENT OF BENEFITS  

    4.28(1)   [Discharge of liability]  

    If the cashing of the benefits of an RSA holder complies with regulation 4.26, 4.27, 4A.24 or 4A.28, the RSA provider is discharged from all further liability in respect of the benefits cashed.

    4.28(2)   [Benefits not part of estate]  

    Benefits of an RSA holder cashed in accordance with regulation 4.26, 4.27, 4A.24 or 4A.28 in favour of a person other than a legal personal representative of the RSA holder do not form part of the estate of the RSA holder.

    REGULATION 4.29   PRIORITY IN CASHING BENEFITS IN CERTAIN CASES  

    4.29(1)   [Cashing restriction in condition of release]  

    This regulation applies to an RSA provider if:


    (a) an RSA holder has satisfied a condition of release; and


    (b) there is a cashing restriction (other than a ``Nil'' restriction) in respect of that condition.

    4.29(2)   [Order of priority]  

    In cashing benefits in accordance with the restriction, the RSA provider must give priority to benefits in the following order:


    (a) first - to unrestricted non-preserved benefits;


    (b) second - to restricted non-preserved benefits;


    (c) third - to preserved benefits.

    Division 4.4 - Rollover and transfer of benefits  

    [NOTE:

    See also Parts 8 and 9 of the Act.]

    REGULATION 4.30   4.30   DEFINITION  


    In this Division:

    "consent"
    means:


    (a) written consent; or


    (b) any other form of consent determined by APRA as sufficient in the circumstances.

    REGULATION 4.31   4.31   OPERATING STANDARDS  


    Subject to regulation 4.34, for the purposes of subsection 38(1) of the Act, it is a standard applicable to the operation of RSAs that the RSA institution ( ``the receiving RSA institution'' ) must not accept the rollover or transfer of a benefit from another RSA or from a superannuation entity or an EPSSS if:


    (a) the receiving RSA institution has reasonable grounds to believe that the benefit being rolled over or transferred is being rolled over or transferred on the basis of a belief held by the RSA provider or trustee of the transferring entity (as the case may be) that the receiving RSA institution has received the RSA holder's or member's consent to the rollover or transfer; and


    (b) the receiving RSA institution has not received that consent.

    REGULATION 4.32   4.32   ROLLOVER  


    Except as otherwise provided by the Act, the Corporations Act 2001, the Corporations Regulations 2001 or these Regulations, the benefits of an RSA holder in an RSA must not be rolled over from that RSA unless:


    (a) the RSA holder has given to the RSA provider the RSA holder's consent to the rollover; or


    (b) the RSA provider believes, on reasonable grounds, that:


    (i) the RSA institution providing the RSA; or

    (ii) the trustee of the superannuation entity or EPSSS;
    into which the benefits are to be rolled over has received, from the RSA holder, consent to the rollover.

    REGULATION 4.33   4.33   TRANSFER  


    Except as otherwise provided by the Act, the Corporations Act 2001, the Corporations Regulations 2001 or these Regulations, the benefits of an RSA holder in an RSA must not be transferred from that RSA unless:


    (a) the RSA holder has given to the RSA provider the RSA holder's consent to the transfer; or


    (b) the RSA provider believes, on reasonable grounds, that:


    (i) the RSA institution providing the RSA; or

    (ii) the trustee of the superannuation entity or EPSSS;
    into which the benefits are to be transferred, has received, from the RSA holder, consent to the transfer.

    REGULATION 4.34   4.34   WHEN RSA HOLDER'S CONSENT NEED NOT BE GIVEN  
    The benefits of an RSA holder in an RSA may be transferred from the RSA to another RSA provided by an RSA institution without the consent required under regulation 4.33 if the transfer is the direct result of:


    (a) the takeover of the RSA provider with which the person previously held an RSA, by:


    (i) the RSA institution; or

    (ii) a corporation that is a related corporation of the RSA institution within the meaning of the Corporations Law; or


    (b) a merger involving the RSA provider with which the person previously held an RSA and which results in the creation of the RSA institution; or


    (c) the transfer of any, or all of, the assets and liabilities of the RSA provider with which the person previously held an RSA to the RSA institution:


    (i) under a provision of the Banking Act 1959, the Life Insurance Act 1995 or of any other law of the Commonwealth, a State or a Territory; or

    (ii) under a voluntary transfer of engagements; or

    (iii) on request of a regulatory agency prescribed under regulation 6.12.

    Division 4.4A - Compulsory rollover and transfer of benefits in RSAs  

    REGULATION 4.35   4.35   APPLICATION OF DIVISION 4.4A  


    This Division applies to all RSAs.

    REGULATION 4.35A   4.35A   DATA AND PAYMENT MATTERS RELATING TO RSAs  


    For subsection 45B(1) of the Act, regulations 4.35B to 4.35P prescribe matters to be complied with.

    REGULATION 4.35B   4.35B   REQUEST FORMS  


    For this Division:


    (a) the forms set out in Schedules 2A and 2B to the SIS Regulations are adopted with as many of the following modifications as are required for the purposes of the Act and these Regulations:


    (i) references to a superannuation fund are taken to be references to an RSA provider;

    (ii) references to a trustee are taken to be references to an RSA provider;

    (iii) references to a member are taken to be references to an RSA holder;

    (iv) references to the SIS Act are taken to be references to the Act;

    (v) references to a superannuation benefit are taken to be references to an RSA benefit;

    (vi) references to a unique superannuation identifier are taken to be references to a unique RSA identifier; and


    (b) the form set out in Schedule 2A of the SIS Regulations, as adopted, is the Schedule 2A request form ; and


    (c) the form set out in Schedule 2B of the SIS Regulations, as adopted, is the Schedule 2B request form .

    Note 1:

    The transaction may involve both the RSA legislation and the SIS legislation, or just the RSA legislation. The request forms are modified to the extent required to suit the particular case.

    Note 2:

    The request forms deal with information about tax file numbers that is required in accordance with Part 11 of the Act, and approvals under the Act.

    REGULATION 4.35C   REQUEST FOR ROLLOVER OR TRANSFER OF RSA HOLDER'S WITHDRAWAL BENEFIT  

    4.35C(1)  
    An RSA holder may request, in writing, that the whole or a part of the RSA holder's withdrawal benefit in an RSA provided by an RSA provider (the transferring entity ) be rolled over or transferred to any of the following (the receiving entity ):


    (a) a superannuation entity;


    (b) an RSA provided by another RSA provider.

    Note:

    An RSA holder may also request that his or her withdrawal benefit be rolled over or transferred to an EPSSS.

    4.35C(2)  
    If the receiving entity is not a self managed superannuation fund, the RSA holder:


    (a) may make the request to the transferring entity or the receiving entity; and


    (b) if the request is to roll over or transfer an amount that is the whole of the RSA holder's withdrawal benefit - may use the Schedule 2A request form to make the request.

    Note:

    The Schedule 2A request form deals with information about tax file numbers that is required in accordance with Part 11 of the Act and approvals under that Part.

    4.35C(3)  
    If the receiving entity is a self managed superannuation fund, the RSA holder:


    (a) must make the request to the transferring entity; and


    (b) if the request is to roll over or transfer an amount that is the whole of the RSA holder's withdrawal benefit-may use the Schedule 2B request form to make the request.

    Note:

    The Schedule 2B request form deals with information about tax file numbers that is required in accordance with Part 11 of the Act and approvals under that Part.

    REGULATION 4.35CA   4.35CA   RSA PROVIDER MAY REQUEST INFORMATION OR DOCUMENTATION  
    (Repealed by SLI No 61 of 2013)

    REGULATION 4.35D   ACTION BY RECEIVING ENTITY ON RECEIPT OF REQUEST  

    4.35D(1)  
    This regulation applies to an RSA provider (the receiving entity ) if the receiving entity receives a written request from an RSA holder to roll over or transfer, to an RSA provided by the RSA provider, the whole or part of the RSA holder's:


    (a) withdrawal benefit from a regulated superannuation fund or approved deposit fund; or


    (b) withdrawal benefit in an RSA provided by another RSA provider.

    4.35D(2)  
    The receiving entity must tell the regulated superannuation fund, approved deposit fund or other RSA provider (the transferring entity ) about the request and give the following details to the transferring entity:


    (a) the RSA holder's full name;


    (b) the RSA holder's date of birth;


    (c) the RSA holder's sex;


    (d) the RSA holder's residential address;


    (e) the RSA holder's membership number, policy number or account number, with the transferring entity;


    (f) the receiving entity's name and ABN;


    (g) the unique RSA identifier for the receiving entity;


    (h) the transferring entity's name and ABN;


    (i) the transferring entity's unique superannuation identifier or unique RSA identifier for the rollover or transfer.

    4.35D(3)  
    However, subsection (2) does not apply if the receiving entity does not have all of the details mentioned in subsection (2).

    4.35D(4)  
    The receiving entity must also tell the transferring entity:


    (a) whether the request is to roll over or transfer the whole or a part of the RSA holder's withdrawal benefit; and


    (b) if the request is to roll over or transfer a part of the RSA holder's withdrawal benefit-the amount to be rolled over or transferred.

    4.35D(5)  
    The receiving entity must also give the RSA holder's tax file number to the transferring entity, unless, before the rollover or transfer, the RSA holder gives the receiving entity a written statement requesting the receiving entity not to inform another RSA provider or any superannuation fund trustee of the RSA holder's tax file number.

    Note:

    Standards made under subsection 45B(3) of the Act may set out how the information in subregulations (2) and (4) is to be given to the transferring entity (for example, electronically), and may set out additional information that must be given.

    4.35D(6)  
    Before the receiving entity gives the information to the transferring entity, the receiving entity must reasonably believe that the RSA holder:


    (a) is aware that the RSA holder may ask the transferring entity for information that the RSA holder reasonably requires for the purpose of understanding any benefit entitlements that the RSA holder may have, including:


    (i) information about any fees or charges that may apply to the proposed rollover or transfer; and

    (ii) information about the effect of the proposed rollover or transfer on any benefit entitlements the RSA holder may have; and


    (b) either:


    (i) has obtained any information the RSA holder reasonably requires; or

    (ii) does not require such information.
    Note:

    Under section 1017C of the Corporations Act 2001, an RSA provider must, on request by an RSA holder, give the RSA holder the information and documents mentioned in subsection 1017C(2) or (2A) and subsection 1017C(5) of the Corporations Act 2001. See also regulations 7.9.46 and 7.9.47 of the Corporations Regulations 2001.

    REGULATION 4.35E   TRANSFERRING ENTITY MUST ELECTRONICALLY RECEIVE REQUEST  

    4.35E(1)  
    This regulation applies to an RSA provider (the transferring entity ) if the RSA holder of an RSA provided by the transferring entity makes a request for the whole or part of the RSA holder's withdrawal benefit in the RSA to be rolled over or transferred to any of the following (the receiving entity ):


    (a) a superannuation entity;


    (b) an RSA provided by another RSA provider.

    4.35E(2)  
    The transferring entity must be able to electronically receive information in relation to the rollover or transfer sent to the transferring entity:


    (a) by the receiving entity, in accordance with regulation 4.35D and any applicable Standards made under subsection 45B(3) of the Act; or


    (b) by the receiving entity in accordance with regulation 6.33A of the SIS Regulations and any applicable Standards made under subsection 34K(3) of the SIS Act; or


    (c) by the RSA holder, in accordance with any Standards made under subsection 45B(3) of the Act, or subsection 34K(3) of the SIS Act, that apply in relation to requests for rollovers or transfers of benefits; or


    (d) by the Commissioner of Taxation under regulation 4AA.03.

    REGULATION 4.35F   TRANSFERRING ENTITY MAY REQUEST INFORMATION IF NOT PROVIDED  

    4.35F(1)  
    Subregulation (2) applies if:


    (a) an RSA provider of an RSA receives:


    (i) a request to roll over or transfer an RSA holder's withdrawal benefit in the RSA to a regulated superannuation fund, an EPSSS, an approved deposit fund or an RSA provided by another RSA provider; or

    (ii) the information mentioned in subregulation 4.35D(2) from a receiving entity; and


    (b) the request is to roll over or transfer the whole of the RSA holder's withdrawal benefit; and


    (c) the RSA provider requires further information in order to process the request; and


    (d) one of the following applies:


    (i) for a request to roll over or transfer to a self managed superannuation fund - the further information is mandatory information in the Schedule 2B request form;

    (ii) in any other case - the further information is mandatory information in the Schedule 2A request form.
    Note 1:

    The Schedule 2A or 2B request form referred to in paragraph (d) may be the request form set out in Schedule 2A or 2B to the SIS Regulations, rather than the modified version of the form established by regulation 4.35B.

    Note 2:

    If a request does not include all of the mandatory information set out in the Schedule 2A or 2B request form (whether or not the request is made using the form), the RSA provider may still roll over or transfer the amount without asking for the rest of the mandatory information.

    4.35F(2)  
    The RSA provider must ask the RSA holder for the mandatory information no later than 5 business days after receiving the request.

    4.35F(3)  
    If:


    (a) an RSA provider of an RSA receives:


    (i) a request to roll over or transfer an RSA holder's withdrawal benefit in the RSA to a regulated superannuation fund, an EPSSS, an approved deposit fund or an RSA provided by another RSA provider; or

    (ii) the information mentioned in subregulation 4.35D(2) from a receiving entity; and


    (b) the request is to roll over or transfer part of the RSA holder's withdrawal benefit; and


    (c) the RSA provider requires further information that is necessary to process the request;

    the RSA provider must ask the RSA holder for the information no later than 5 business days after receiving the request.

    4.35F(4)  
    If the RSA provider does not receive the information requested in subregulation (2) or (3) no later than 10 business days after making the request, the RSA provider must make reasonable further inquiries of the RSA holder to obtain the information.

    REGULATION 4.35G   VALIDATION OF RSA HOLDER'S DETAILS BY TRANSFERRING ENTITY  

    4.35G(1)  
    Subregulation (2) applies to the RSA provider (the transferring entity ) if:


    (a) the transferring entity receives:


    (i) a request under regulation 4.35C to roll over or transfer the whole or a part of an RSA holder's withdrawal benefit in an RSA provided by the transferring entity to a regulated superannuation fund (other than a self managed superannuation fund) or approved deposit fund, or an RSA provided by another RSA provider; or

    (ii) a request to roll over or transfer the whole or a part of an RSA holder's withdrawal benefit in an RSA provided by the transferring entity to an EPSSS; and


    (b) the request was not given to the transferring entity by the Commissioner of Taxation (the Commissioner ); and


    (c) the transferring entity has the RSA holder's tax file number.

    4.35G(2)  
    The transferring entity must ask the Commissioner, using an electronic interface provided by the Commissioner, for a notice under subsection 143D(2) of the Act in relation to the member.

    4.35G(3)  
    However, subregulation (2) does not apply if the Commissioner has previously given the transferring entity a notice under subsection 143D(2) of the Act stating that the Commissioner was able to validate the RSA holder's information given by the transferring entity.

    4.35G(4)  
    The transferring entity may ask the RSA holder for any proof of identity information on the Schedule 2B request form that the transferring entity reasonably requires to process the request if:


    (a) the Commissioner gives the transferring entity a notice under subsection 143D(2) of the Act stating that the Commissioner is not able to validate the information mentioned in subsection (2); or


    (b) the transferring entity does not have the RSA holder's tax file number.

    4.35G(5)  
    A transferring entity to which paragraph (4)(a) applies must ask for the proof of identity information no later than 5 business days after receiving the Commissioner's notice.

    4.35G(6)  
    A transferring entity to which paragraph (4)(b) applies must ask for the proof of identity information no later than 5 business days after receiving the request to roll over or transfer the whole or a part of the RSA holder's withdrawal benefit.

    4.35G(7)  
    If the transferring entity does not receive the information requested under subregulation (4) within 10 business days after making the request, the transferring entity must make reasonable further inquiries of the RSA holder to obtain the information.

    REGULATION 4.35H   VERIFICATION OF SELF MANAGED SUPERANNUATION FUND AND RSA HOLDER'S DETAILS  

    4.35H(1)  
    This regulation applies to an RSA provider (the transferring entity ) if the transferring entity receives a request under regulation 4.35C to roll over or transfer the whole or a part of a RSA holder's withdrawal benefit in an RSA provided by the transferring entity to a self managed superannuation fund (the receiving fund ).

    4.35H(2)  
    The transferring entity must:


    (a) use an electronic service provided by the Australian government to verify:


    (i) the ABN and name of the receiving fund; and

    (ii) that the receiving fund is a regulated superannuation fund; and


    (b) use an electronic service provided by the Commissioner of Taxation to validate that the RSA holder is a member of the receiving fund.

    4.35H(3)  
    If the transferring entity is unable to verify the information mentioned in paragraph (2)(a), or is unable to validate the information mentioned in paragraph (2)(b), using the electronic service, the transferring entity must ask the RSA holder for written evidence to verify:


    (a) the name of the receiving fund; and


    (b) that the receiving fund is a regulated superannuation fund; and


    (c) that the RSA holder is a member of the receiving fund.

    4.35H(4)  
    The transferring entity must ask for the evidence under subregulation (3) no later than 5 business days after the transferring entity has been unable to verify or validate the information under subsection (2).

    4.35H(5)  
    If the transferring entity does not receive the evidence requested under subregulation (3) within 10 business days after making the request the transferring entity must make reasonable further inquiries of the RSA holder to obtain the information.

    REGULATION 4.35J   ROLLOVER OR TRANSFER OF RSA HOLDER'S WITHDRAWAL BENEFIT  

    Application of regulation

    4.35J(1)  
    This regulation applies to an RSA provider (the transferring entity ) if:


    (a) the transferring entity receives a request to roll over or transfer the whole or part of an RSA holder's withdrawal benefit in an RSA provided by the transferring entity to any of the following (the receiving entity ):


    (i) a superannuation entity;

    (ii) an RSA provided by another RSA provider;

    (iii) an EPSSS; and
    Note:

    The request could come from the RSA holder, the receiving entity or the Commissioner of Taxation.


    (b) for a request to roll over or transfer the whole of the RSA holder's withdrawal benefit-the transferring entity receives all information that is mandatory information in the Schedule 2A request form (if the receiving entity is not a self managed superannuation fund) or the Schedule 2B request form (if the receiving entity is a self managed superannuation fund); and


    (c) for a request to roll over or transfer part of the RSA holder's withdrawal benefit - the transferring entity receives:


    (i) the information that would be required by the Schedule 2A request form (if the receiving fund is not a self managed superannuation fund) or the Schedule 2B request form (in any other case); and

    (ii) any other information that is reasonably required by the transferring entity to give effect to the rollover or transfer; and


    (d) for a request to which subregulation 4.35G(4) applies - the transferring entity has received sufficient information, following the request, to reasonably enable the transferring entity to give effect to the rollover or transfer; and


    (e) for a request to which subregulation 4.35H(3) applies - the transferring entity has received sufficient information, following the request, to reasonably enable the transferring entity to give effect to the rollover or transfer. Transferring entity must rollover or transfer

    4.35J(2)  
    Subject to regulation 4.35P, the transferring entity must roll over or transfer the amount in accordance with the request.

    Note:

    Standards made under subsection 45B(3) of the Act may set out how the amount is to be rolled over or transferred, and information that must accompany the rollover ortransfer.

    4.35J(3)  
    The transferring entity must assign a payment reference number to the rollover or transfer, and include the payment reference number in the rollover or transfer.

    4.35J(4)  
    The payment reference number must be unique to:


    (a) the rollover or transfer; or


    (b) a number of rollovers or transfers made together on the same day by the transferring entity.

    Note:

    Standards made under subsection 45B(3) of the Act may set out how the payment reference number is to be determined.

    4.35J(5)  
    Before the transferring entity rolls over or transfers the amount, the transferring entity must, unless it has received the request from the receiving entity under regulation 4.35D or the Commissioner of Taxation under Part 4AA, reasonably believe that the RSA holder:


    (a) is aware that the RSA holder may ask the transferring entity for information that the RSA holder reasonably requires for the purpose of understanding any benefit entitlements that the RSA holder may have, including:


    (i) information about any fees or charges that may apply to the proposed rollover or transfer; and

    (ii) information about the effect of the proposed rollover or transfer on any benefit entitlements the RSA holder may have; and


    (b) either:


    (i) has obtained any information the RSA holder reasonably requires; or

    (ii) does not require such information.
    Note:

    Under section 1017C of the Corporations Act 2001, an RSA provider must, on request by an RSA holder, give the RSA holder the information and documents mentioned in subsection 1017C(2) or (2A) and subsection 1017C(5) of the Corporations Act 2001. See also regulations 7.9.46 and 7.9.47 of the Corporations Regulations 2001.

    REGULATION 4.35K   TIMEFRAMES FOR ROLLOVERS AND TRANSFERS  

    4.35K(1)  
    This regulation applies if an RSA provider (the transferring entity ) is required to roll over or transfer an amount to a receiving entity under regulation 4.35J. Timeframe - standard

    4.35K(2)  
    Subject to subregulation (3), the transferring entity must roll over or transfer the amount as soon as practicable, but in any case no later than 3 business days after:


    (a) the transferring entity received the rollover or transfer request; or


    (b) if the transferring entity seeks further information under regulation 4.35F or subregulation 4.35G(4) or 4.35H(3) - the date the transferring entity receives the information. Timeframe - non-standard

    4.35K(3)  
    If the receiving entity is unable to receive the rollover or transfer in accordance with any applicable Standards made under subsection 45B(3) of the Act or subsection 34K(3) of the SIS Act, the transferring entity is required to roll over or transfer the amount as soon as practicable, but in any case no later than 30 days after:


    (a) the transferring entity received the rollover or transfer request; or


    (b) if the transferring entity seeks further information under regulation 4.35F or subregulation 4.35G(4) or 4.35H(3) - the date the transferring entity receives the information.

    REGULATION 4.35L   RSA HOLDER DETAILS FOR ROLLOVER OR TRANSFER  

    4.35L(1)  
    An RSA provider who rolls over or transfers the whole or part of an RSA holder's withdrawal benefit under regulation 4.35J to a regulated superannuation fund, an EPSSS, an approved deposit fund or another RSA provider (the receiving entity ) must give the following information to the receiving entity in relation to the rollover or transfer:


    (a) the RSA holder's full name;