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.
5.06 Certain benefits rolled over or transferred to regulated superannuation funds taken to be minimum benefits
(1) Subject to this regulation, the following benefits are taken to be minimum benefits in a regulated superannuation fund:
(a) benefits rolled over or transferred to the regulated superannuation fund;
(b) benefits allotted under Division 6.7 to an interest in the regulated superannuation fund held by, or created for, a receiving spouse.
(2) If:
(a) at least 1 year has elapsed since the fund received the benefits; and
(b) the trustee:
(i) is satisfied that the benefits are not in fact minimum benefits; and
(ii) decides not to continue to treat the benefits as minimum benefits;
subregulation (1) ceases to apply to the benefits.
(3) If:
(a) less than 1 year has elapsed since the fund received the benefits; and
(b) the trustee is satisfied that the benefits are not in fact minimum benefits;
subregulation (1) ceases to apply to the benefits.
(4) If benefits that have been rolled over or transferred to a regulated superannuation fund are taken under this regulation to be minimum benefits, the amount of the minimum benefits as at any time is the sum of:
(a) the benefits rolled over or transferred to the fund; and
(b) the investment earnings on those benefits down to that time;
less the costs applicable to those benefits down to that time.
(5) 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.
(6) In this regulation:
benefits means benefits other than benefits rolled over or transferred to a regulated superannuation fund from an RSA.
5.06A Benefits rolled over or transferred from an RSA to regulated superannuation funds taken to be minimum benefits
Benefits rolled over or transferred to a regulated superannuation fund from an RSA are taken to be minimum benefits in the regulated superannuation fund.
5.06B Minimum benefits if new interest created, or benefits rolled over or transferred, under Division 7A.2
(1) This regulation applies if:
(a) an interest (the original interest) in an accumulation fund is subject to a payment split; and
(b) under Division 7A.2:
(i) a new interest is created in the fund for the non‑member spouse; or
(ii) the transferable benefits of the non‑member spouse are rolled over or transferred to another fund, an EPSSS or an RSA.
(2) If subparagraph (1)(b)(i) applies, the trustee may decide that all the benefits held in the original interest, and in the new interest, immediately after the new interest is created are minimum benefits.
(3) If subparagraph (1)(b)(ii) applies, the trustee may decide that all the benefits held in the original interest immediately after the transferable benefits are rolled over or transferred are minimum benefits.
Note: Transferable benefits rolled over or transferred to another regulated superannuation fund would be minimum benefits in accordance with regulation 5.06.
(4) However, the trustee must not make a decision mentioned in subregulation (2) or (3) if the decision would have the effect of reducing the minimum benefits held by the other members of the fund.
(5) If the trustee does not make a decision mentioned in subregulation (2) or (3), the minimum benefits held in the original interest are allocated between the member spouse and the non‑member spouse in proportion to the split of benefits in the original interest.
5.07 Minimum benefits—approved deposit funds
A member’s minimum benefits in an approved deposit fund are the amount of the member’s accumulated deposit in that fund.
Division 5.3—Treatment of minimum benefits
5.08 How minimum benefits are to be treated
(1) For subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that the trustee of a fund must ensure that a member’s minimum benefits in the fund are maintained in the fund until the benefits are:
(a) cashed as benefits of the member, other than for the purpose of the member’s temporary incapacity; or
(b) rolled over or transferred as benefits of the member; or
(c) transferred, rolled over or allotted under Division 6.7.
(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 member’s benefits in the fund to the Commonwealth, a State or a Territory.
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 20Section 30, to the extent that it applies to confiscation under section 7
(2) Subregulation (1) does not apply in relation to an amount of a member’s minimum benefits in an accumulation fund if:
(a) the amount is attributable only to employer contributions (other than mandated employer contributions); and
(b) there is a written agreement between the member of the fund and the member’s employer that:
(i) was entered into before the commencement of this subparagraph; and
(ii) requires the employer to make the employer contributions (other than mandated employer contributions) to the fund for the benefit of the member; and
(iii) specifies that if the member’s employment with the employer ends at or after the end of a period specified in the agreement, the employee is entitled to all of the amount; and
(iv) specifies that if the member’s employment with the employer ends before the end of the specified period, the member is entitled only to a proportion of the amount; and
(c) the member’s employment has ended before the end of the period mentioned in subparagraph (b)(iii).
(3) In addition to subregulation (1), a trustee of an accumulation fund may allow an amount of a member’s minimum benefits in the fund to be cashed as benefits of the member if:
(a) the cashing of the benefits is for the purpose of the member’s temporary incapacity; and
(b) the amount:
(i) is not attributable to the member’s member‑financed benefits; and
(ii) is not attributable to the member’s mandated employer‑financed benefits.
Part 6—Payment standards
Division 6.1—Introductory
Subdivision 6.1.1—General interpretation
6.01 Interpretation
(1) Subject to subregulation (2), expressions used in this Part that are defined for the purposes of Part 5 have the same meanings respectively as in that Part.
(2) In this Part and in Schedule 1, 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 1 that mentions the condition of release.
changeover day, in relation to a type B member of a fund, means the changeover day that was fixed for the class of members of the fund in which the member is included.
commencement day means:
(a) in relation to a regulated superannuation fund, the later of:
(i) the first day of the 1994–95 year of income of the fund; or
(ii) the day on which the trustee or trustees of the fund make an election under section 19 of the Act; and
(b) in relation to an approved deposit fund:
(i) if the first day of the 1994–95 year of income of the fund is on or after 1 July 1994—the first day of that year of income; or
(ii) if the first day of that year of income is before 1 July 1994—the earlier of:
(A) 1 July 1994; or
(B) the day on which the fund became an approved deposit fund.
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
(f) a payment of income support for the purposes of the Farm Family Support Scheme.
compassionate ground, in relation to the release of a member’s preserved benefits, or restricted non‑preserved benefits, in a superannuation entity, means:
(a) a ground listed in subregulation 6.19A(1); or
(b) the ground referred to in subregulation 6.19B(1).
condition of release means a condition of release specified in Column 2 of Schedule 1 and, subject to regulation 6.01B, a member of a fund is taken to have satisfied a condition of release if the event specified in that condition has occurred in relation to the member.
indexed, in relation to a benefit, means indexed in accordance with section 159SG of the Tax Act (as in force before 1 July 2007), modified so that subsection (1) reads as follows:
(1) The benefit as indexed for each year of income is:
(a) in relation to the year of income in which occurs the day on which a benefit was required to have been calculated or was received by the fund—the amount of the benefit that was calculated or received; or
(b) in relation to a later year of income—the amount calculated by multiplying the benefit for the immediately preceding year of income by the indexation factor worked out in accordance with subsection (2) for the later year of income.
lump sum, in this Part but not in Schedule 1, includes an asset.
non‑commutable allocated annuity has the meaning given by regulation 6.01AA.
non‑commutable allocated pension has the meaning given by regulation 6.01AB.
non‑commutable annuity means an annuity provided under a contract that:
(a) meets the standards of subregulation 1.05(2), (9) or (10); and
(b) ensures that payments of benefits are made only in accordance with the rules set out in regulations 6.16, 6.18, 6.19 and 6.22A, as if:
(i) the annuity were a regulated superannuation fund; and
(ii) the annuitant were a member of the fund; and
(iii) the annuity provider were a trustee of the fund; and
(c) ensures that, if the annuity is commuted under subparagraph 1.05(2)(f)(i), (9)(h)(i) or (10)(d)(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 annuitant 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.
non‑commutable pension means a pension provided under rules of a superannuation fund that:
(a) meet the standards of subregulation 1.06(2), (7) or (8); and
(b) ensure that, if the pension is commuted under subparagraph 1.06(2)(e)(i), (7)(g)(i) or (8)(d)(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’.
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 means undeducted contributions (within the meaning of subregulation (6)) of a member other than contributions that were preserved in satisfaction of requirements of the Tax Act, the OSS Laws the Superannuation Industry (Supervision) (Transitional Provisions) Regulations, the RSA Regulations or these regulations leading to income tax concessions.
retirement has the meaning given by subregulation (7).
severe financial hardship has the meaning given by subregulation (5).
student visa has the same meaning as in the Migration Act 1958.
temporary incapacity, in relation to a member who has ceased to be gainfully employed (including a member who has ceased temporarily to receive any gain or reward under a continuing arrangement for the member to be gainfully employed), means ill‑health (whether physical or mental) that caused the member 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 6.01A.
transitional period, in relation to a superannuation fund, means the period beginning at the beginning of the fund’s 1994–1995 year of income and ending:
(a) in the case of a public sector superannuation scheme—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 the Act.
transition to retirement income stream means:
(a) an annuity provided under a contract that:
(i) is a contract to which paragraph 1.05(11A)(a) applies and that meets the standards of subregulation 1.05(11A); and
(ii) allows 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 annuity account balance:
(A) on 1 July in the financial year in which the payment is made; or
(B) if that year is the year in which the annuity commences—on the commencement day;
unless 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
(iii) complies with paragraphs (b) and (c) of the definition of non‑commutable allocated annuity in subregulation 6.01AA(1), as if it were such an annuity; or
(b) a pension provided from a superannuation fund, the rules of which:
(i) are rules to which paragraph 1.06(9A)(a) applies and that meet the standards of subregulation 1.06(9A); and
(ii) 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:
(A) on 1 July in the financial year in which the payment is made; or
(B) 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
(iii) comply with paragraph (b) of the definition of non‑commutable allocated pension in subregulation 6.01AB(1), as if it were such a pension.
type A member means a member of a regulated superannuation fund included in a class of members for which no changeover day, fixed under these regulations as in force before 30 June 1998, was reached before 30 June 1998 in relation to that fund.