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.
(3) For paragraph 10A(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 10A(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.
(4) For paragraph 10A(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 10A(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.
(5) For paragraph 10A(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.
1.04AAA Modified meaning of member (Act s 15B)
(1) This regulation applies if:
(a) a superannuation interest in a fund is subject to a payment split, or a non‑member spouse interest has been created under regulation 7A.03B; and
(b) the non‑member spouse in relation to the interest was not a member of the fund immediately before the operative time for the payment split.
(2) For the purposes of the provisions of the Act set out in Table 1, the non‑member spouse is to be treated as being a member of the fund in which the interest is held from the later of:
(a) the operative time for the payment split; and
(b) the time that the trustee receives the agreement or order under which the payment split is effected.
section 65 (lending to members of regulated superannuation fund prohibited)
3
Part 8 (in‑house asset rules applying to regulated superannuation funds)
(3) For subsection 17A(5) of the Act, the non‑member spouse is to be treated as being a member of the fund in which the interest is held from the later of:
(a) the end of 6 months after the operative time for the payment split; and
(b) the end of 6 months after the time that the trustee receives the agreement or order under which the payment split is effected.
(4) For regulation 1.03A, the non‑member spouse is to be treated as being a member of the fund in which the interest is held from the operative time for the payment split.
(5) For subsection 17A(5) of the Act, a non‑member spouse who became a member of a fund as a result of the creation of a non‑member spouse interest under Division 7A.1A is not treated as a member of the fund until the earlier of:
(a) 6 months after the operative time for the payment split; and
(b) the time that the non‑member spouse’s interest in the fund is confirmed under regulation 7A.03H or 7A.03I.
1.04AA Self managed superannuation funds—persons not taken to be employees (Act s 17A(8))
(1) For the purposes of paragraph 17A(8)(b) of the Act, a class of persons is a specified class if it comprises persons each of whom is, in relation to a member of a superannuation fund, an exempt person mentioned in subregulation (2).
(2) A person is an exempt person in relation to a member of a superannuation fund if:
(a) the person is an employer‑sponsor of the fund; and
(b) the member is a director of the employer‑sponsor.
(3) For the purposes of paragraph 17A(8)(b) of the Act, a class of persons is a specified class if it comprises persons each of whom is a member of a superannuation fund in relation to which the following circumstances exist:
(a) the person is the employer, but not a relative, of a member of the fund (the employee);
(b) another member is the employer, and a relative, of that employee.
Part 1A—Annuities and pensions
Division 1A.1
1.05A Interpretation
In this Division, unless a contrary intention appears:
rolled over means paid as a superannuation lump sum within the superannuation system.
1.05 Meaning of annuity (Act, s 10)
(1) A benefit that is provided by a life insurance company or a registered organisation is taken to be an annuity for the purposes of the Act if:
(a) it arises under a contract that:
(i) meets the standards of subregulation (11A) or 1.06A(2); and
(ii) does not permit the capital supporting the annuity to be added to by way of contribution or rollover after the annuity has commenced; and
(b) for a benefit purchased on or after 3 August 1993 and before 1 July 2007—it is purchased with the whole or part of a rolled over amount within the meaning given to that term by section 27A of the Tax Act; and
(c) for a benefit purchased on or after 1 July 2007—it is purchased with the whole or part of:
(i) a roll‑over superannuation benefit within the meaning of the 1997 Tax Act; or
(ii) a directed termination payment within the meaning of the Income Tax (Transitional Provisions) Act 1997; and
(d) in the case of a contract to which paragraph (11A)(a) applies and that meets the standards of subregulation (11A)—the contract also meets the standards of regulation 1.07D; and
(e) in the case of a contract to which paragraph (11A)(b) applies and that meets the standards of subregulation (11A)—the contract also meets the standards of regulation 1.07B.
(1A) A benefit that is provided by a life insurance company or a registered organisation that commenced to be paid before 20 September 2007 is taken to be an annuity for the purposes of the Act if:
(a) it arises under a contract that meets the standards of subregulation (2), (4), (6), (7), (8), (9) or (10); and
(b) for a benefit purchased on or after 3 August 1993 and before 1 July 2007—it is purchased with the whole or part of a rolled over amount within the meaning given to that term by section 27A of the Tax Act; and
(c) for a benefit purchased on or after 1 July 2007 and before 20 September 2007—it is purchased with the whole or part of:
(i) a roll‑over superannuation benefit within the meaning of the 1997 Tax Act; or
(ii) a directed termination payment within the meaning of the Income Tax (Transitional Provisions) Act 1997; and
(d) for a benefit that arises under a contract that meets the standards of subregulation (9) and is purchased by the primary beneficiary on or after 20 September 1998—the commencement day under the contract is the day when the benefit was purchased; and
(e) for a benefit that arises under a contract that meets the standards of subregulation (4)—the contract also meets the standards of regulation 1.07A; and
(f) for a benefit that arises under a contract that meets the standards of subregulation (2), (6), (7) or (9)—the contract also meets the standards of regulation 1.07B; and
(g) for a benefit that arises under a contract that meets the standards of subregulation (8):
(i) the benefit can be taken to consist of two benefits:
(A) an annuity that arises from that part of the contract that provides for payments whose size is not fixed; and
(B) an annuity that arises from that part of the contract that provides for payments whose size in a year is fixed; and
(ii) the contract meets the standards of regulation 1.07A in relation to the annuity mentioned in sub‑subparagraph (i)(A); and
(iii) the contract meets the standards of regulation 1.07B in relation to the annuity mentioned in sub‑subparagraph (i)(B); and
(h) for a benefit that arises under a contract that meets the standards of subregulation (10), and has a commencement day on or after 20 September 2004—the contract also meets the standards of regulation 1.07C.
(1B) A benefit provided by a life insurance company or registered organisation that commenced to be paid on or after 20 September 2007 is taken to be an annuity for the purposes of the Act if:
(a) the benefit arises under a contract that meets the standards of:
(i) subregulation 1.05(9) or (10); and
(ii) subregulation 1.05(11A); 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); or
(ii) a pension provided under rules that meet the standards of subregulation 1.06(2), (7) or (8); or
(iii) a pension provided under terms and conditions that meet the standards of subregulation 1.07(3A) of the RSA Regulations; and
(c) for a benefit that arises under a contract that meets the standards of subregulation (9)—the contract also meets the standards of regulation 1.07B; and
(d) for a benefit that arises under a contract that meets the standards of subregulation (10)—the contract also meets the standards of regulation 1.07C.
(2) A contract for the provision of a benefit (in this subregulation called the annuity) meets the standards of this subregulation if it ensures that:
(a) the annuity is paid at least annually throughout the life of the primary beneficiary in accordance with paragraphs (b) and (c) and, if there is a reversionary beneficiary:
(i) throughout the reversionary beneficiary’s life; or
(ii) if he or she is a child of the primary beneficiary or of a former reversionary beneficiary under the annuity—at least until his or her 16th birthday; or
(iii) if the person referred to in subparagraph (ii) is a full‑time student at age 16—at least until the end of his or her full‑time studies or until his or her 25th birthday (whichever occurs sooner); and
(b) the size of payments of benefit in a year is fixed, allowing for variation only:
(i) as specified in the contract; or
(ii) to allow commutation to pay a superannuation contributions surcharge; or
(iii) to allow an amount to be paid under a payment split and reasonable fees in respect of the payment split to be charged; and
(c) unless APRA otherwise approves, the sum payable as benefit in each year to the primary beneficiary or to the reversionary beneficiary, as the case may be, is:
(i) if CPIc is not less than CPIp—not less than SPp; or
(ii) if CPIc is less than CPIp—not less than:
Start formula start fraction CPI start subscript c end subscript over CPI start subscript p end subscript end fraction times SP start subscript p end subscript end formula
where:
CPIc means the quarterly CPI first published by the Australian Statistician for the second‑last quarter before the day on which payment is to be made.
CPIp means the quarterly CPI first published by the Australian Statistician for the same quarter in the immediately preceding year.
SPp means the sum payable in the immediately preceding year;
and
(d) the amount paid as the purchase price is wholly converted into annuity income; and
(e) the annuity does not have a residual capital value; and
(f) the annuity cannot be commuted except in any of the following circumstances:
(i) the annuity is not funded from the commutation of:
(A) an annuity that meets the standards of this subregulation or subregulation (3), (9) or (10); or
(B) a pension that meets the standards of subregulation 1.06(2), (3), (7) or (8); or
(C) a pension that meets the standards of subregulation 1.07(3A) of the RSA Regulations;
and the commutation is made within 6 months after the commencement day of the annuity;
(ii) the commutation is made to the benefit of a reversionary beneficiary on the death of the primary beneficiary and within one of the following periods after the commencement day of the annuity:
(A) if the primary beneficiary’s life expectancy on the commencement day, rounded up to the next whole number, is a period less than 20 years—that period;
(B) in any other case—20 years;
(iii) the superannuation lump sum resulting from the commutation is transferred directly for the purpose of purchasing another benefit provided under:
(A) a contract that meets the standards of this subregulation or subregulation (3), (9) or (10); or
(B) rules that meet the standards of subregulation 1.06(2), (3), (7) or (8); or
(C) terms and conditions that meet the standards of subregulation 1.07(3A) of the RSA Regulations;
(iiia) subregulations 1.05AA(1) and (2) apply to the commutation;
(iv) to pay a superannuation contributions surcharge;
(v) to give effect to an entitlement of a non‑member spouse under a payment split;
(vi) 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;
(vii) the annuity was commenced in contravention of Part 6 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
(g) if the annuity reverts or is commuted, it does not have a reversionary component greater than 100% of the benefit that was payable before the reversion or the commutation; and
(h) the annuity cannot be transferred to a person other than a reversionary beneficiary on the death of the primary beneficiary or of another reversionary beneficiary; and
(i) the capital value of the annuity, and the income from it, cannot be used as security for a borrowing.
(3) For the purpose of determining whether an annuity meets the standards in subregulation (2), it is immaterial that:
(a) if the primary beneficiary dies within the period used for subparagraph (2)(f)(ii), a surviving reversionary beneficiary may obtain a payment equal to the total payments that the primary beneficiary would have received, if the primary beneficiary had not died, from the day of the death until the end of the period; and
(b) if the primary beneficiary dies within the period used for subparagraph (2)(f)(ii) and there is no surviving reversionary beneficiary, an amount, not exceeding the difference between the sum of the amounts paid to the primary beneficiary and the sum of the amounts that would have been so payable in the period, is payable to the primary beneficiary’s estate; and
(c) if the primary beneficiary dies within the period used for subparagraph (2)(f)(ii) and there is a surviving reversionary beneficiary who also dies within that period, there is payable to the reversionary beneficiary’s estate an amount determined as described in paragraph (b) as if that paragraph applied to the reversionary beneficiary.
(4) A contract for the provision of a benefit (in this subregulation called the annuity):
(a) that does not meet the standards in subregulation (2); and
(b) that does not fix the size of payments of benefit in a year; and
(c) under which the commencement day is on or after 22 December 1992;
meets the standards of this subregulation if the contract at least ensures that:
(d) the standards in paragraphs (2)(h) and (i) are met; and
(e) payments are made at least annually; and
(f) for an annuity that has a commencement day on or after 22 December 1992 and 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 1A; and
(g) for an annuity 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 1A;
(B) Schedule 1AAB;
(ii) for payments made on or after 1 July 2006—the respective maximum and minimum limits for the year calculated in accordance with Schedule 1AAB.
Note: 22 December 1992 was the date of Royal Assent to the Taxation Laws Amendment (Superannuation) Act 1992.
(5) For the purpose of determining whether an annuity meets the standards in subregulation (4), it is immaterial:
(a) that:
(i) the commencement day of the annuity occurs on or after 1 June in a financial year; and
(ii) the contract does not ensure that payments in that financial year meet the standard in that subregulation for the minimum amount; or
(b) that the contract does not ensure that the payments in the year in which the annuity is to end meet the standard in that subregulation for the minimum amount.
(6) A contract for the provision of a benefit (in this subregulation called the annuity):
(a) that does not meet the standards of subregulation (2); and
(b) that fixes the size of the payments of benefit in a year, allowing for variation only as specified in the contract or to allow payments to be made under a payment split; and
(c) under which the commencement day is on or after 1 July 1994;
meets the standards of this subregulation if the contract at least ensures that:
(d) the standards in paragraphs (2)(g), (h) and (i) are met; and
(e) except in relation to payments, by way of commutation, for superannuation contributions surcharge, variation in payments from year to year does not exceed, in any year, the average rate of increase of the CPI in the preceding 3 years; and
(f) payments in accordance with paragraph (b) are made at least annually; and