Superannuation Industry (Supervision) Regulations 1994
Subject to this regulation, contributions to a regulated superannuation fund are taken to be mandated employer contributions.5.05(2) [Contributions received after one year]
(a) at least 1 year has elapsed since the fund received the contributions; and
(b) the trustee:
(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.5.05(3) [Contributions received before lapse of one year]
(a) less than 1 year has elapsed since the fund received the contributions; and
(b) the trustee is satisfied that the contributions are not in fact mandated employer contributions;
subregulation (1) ceases to apply to the contributions.5.05(4) [Power of trustee]
The trustee has power to make a decision of the kind mentioned in subparagraph 2(b)(ii) despite anything in the governing rules of the fund.
Example of the application of this regulation
A trustee of a fund may receive a non-mandated employer contribution from an employer-sponsor of the fund that the trustee does not know is a non-mandated employer contribution (i.e. a contribution not made in satisfaction of the employer-sponsor's superannuation guarantee or award obligation).
Upon acceptance, the contribution will be taken to be a mandated employer contribution and therefore subject to the minimum benefits standards.
From this point, one of three circumstances may apply:
(a) the trustee 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 trustee must treat the contribution as a non-mandated employer contribution; or (b) the trustee 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 trustee may continue to treat the contribution as a mandated employer contribution instead of making corrections to reflect the change; or (c) the trustee 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.
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