26DPower of trustees to adjust benefits in relation to certain liabilities

#### 26D Power of trustees to adjust benefits in relation to certain liabilities 26D Power of trustees to adjust benefits in relation to certain liabilities > > (1) Whenever— > > > > > (a) a right to a benefit under this Act accrues to or in respect of a member or former member, and > > > > > (b) the trustees have paid or are liable to pay an amount of superannuation contributions surcharge in respect of the employer contributions paid to the Fund on behalf of the member or former member, > > > > the trustees must determine in writing the surcharge deduction amount that, in the opinion of the trustees, it would be fair and reasonable to take into account in working out the amount of the benefit and must make a determination reducing the benefit accordingly. > > > (2) In determining the surcharge deduction amount in respect of a benefit payable to a member or former member, the trustees may have regard to any or all of the following matters— > > > > > (a) the amount of superannuation contributions surcharge payable or paid by the trustees in respect of the member or former member, > > > > > (b) the amount by which the member’s or former member’s surcharge debt account is in debit when the benefit emerges or commences to be paid, > > > > > (c) the value of the employer-financed portion of the benefit, > > > > > (d) the value of the benefits that, for the purpose of working out (under the [Superannuation Contributions Tax (Assessment and Collection) Act 1997](http://www.legislation.gov.au/) of the Commonwealth) the notional surchargeable contribution factors applicable to the member or former member, were assumed to be likely to be payable to the member or former member on his or her ceasing to hold office as a member of the Legislative Council or Legislative Assembly, > > > > > (e) whether the member or former member has qualified for a benefit after having been a member for an aggregate period of 7 years or more, > > > > > (f) the amount of any payments under section 31A, > > > > > (g) any other matter the trustees consider relevant. > > > (3) The surcharge deduction amount determined by the trustees must not exceed— > > > > > (a) an amount that is 15% of the employer-financed portion of that part of the benefit payable to the member or former member that accrued after 20 August 1996, or > > > > > (b) such other amount of the employer-financed portion of a benefit as is prescribed by the regulations in relation to the period when the benefit payable to the member or former member accrued. > > > (4) For the purpose of determining the surcharge deduction amount, the trustees may obtain actuarial advice or advice from any other persons, as the trustees think fit. > > > (5) The balance of any additional amount payable by the trustees for superannuation contributions surcharge in respect of a member or former member, after payment of the balance of the relevant surcharge debt account, is to be paid by the trustees from the Fund under section 6 (2). > > > (6) Subsection (1) does not authorise the reduction of a benefit as a result of a liability for superannuation contributions surcharge unless the benefit is a benefit under section 19, 22, 22A, 23 (1) (paragraph (a) excepted), (2) or (3) or 27. > > > (7) In this section— > > > > surcharge debt account, in relation to a member or former member, means the surcharge debt account kept for the member or former member (while holding office as a member) under section 16 of the [Superannuation Contributions Tax (Assessment and Collection) Act 1997](http://www.legislation.gov.au/) of the Commonwealth. > > > (8) Despite subsection (1), the benefit of a former member who has commenced to be paid that benefit may be adjusted by the trustees in accordance with the regulations if the former member receives (before, on or after the commencement of this subsection) notice of an assessment of superannuation contributions surcharge under the [Superannuation Contributions Tax (Assessment and Collection) Act 1997](http://www.legislation.gov.au/) of the Commonwealth in respect of the employer contributions paid to the Fund on behalf of the former member. > > > (9) The regulations may make provision for or with respect to the following— > > > > > (a) the circumstances in which the trustees may or may not pay superannuation contributions surcharge on behalf of a former member, > > > > > (b) adjusting the amounts of benefits that have commenced to be paid or paying amounts in relation to a surcharge deduction amount or an assessment of superannuation contributions surcharge received by a former member before, on or after the commencement of this subsection. > > > (10) Without limiting subsection (9), the regulations may make provision for the payment by the trustees of an amount of additional surcharge payable by a former member above the amount determined under subsection (3). > > **s 26D:** Ins 1997 No 149, Sch 1.2 \[13\]. Am 2002 No 110, Sch 4 \[17\]–\[19\]; 2005 No 110, Sch 1 \[8\].