type B member means a member of a regulated superannuation fund included in a class of members for which a changeover day, fixed under these regulations as in force before 30 June 1998, was reached before 30 June 1998 in relation to that fund.
(5) For the purposes of Schedule 1, a person is taken to be in severe financial hardship if:
(a) the trustee of a superannuation entity 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 trustee of a superannuation entity 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 entity.
(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 trustee for cashing of his or her preserved benefits or restricted non‑preserved benefits.
(6) Amounts to the credit of a member (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 member 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 member under the former section 82AAT of the Tax Act.
(7) For the purposes of Schedule 1, 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 the member was gainfully employed has come to an end; and
(ii) the trustee is reasonably satisfied that the person 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 member 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; or
(ii) the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full‑time or a part‑time basis.
(8) A reference in this Part to preserved benefits, restricted non‑preserved benefits, restricted non‑preserved contributions, unrestricted non‑preserved benefits and post‑65 employer‑financed benefits includes benefits, or contributions (as the case may be), rolled over, or transferred, from an RSA.
6.01AA Meaning of non‑commutable allocated annuity
(1) In this Part and Schedule 1, non‑commutable allocated annuity means an annuity provided under a contract that:
(a) meets the standards of subregulation 1.05(4); 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, 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 annuitant 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.
(2) For subparagraph (1)(c)(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.
6.01AB Meaning of non‑commutable allocated pension
(1) In this Part and Schedule 1, non‑commutable allocated pension means a pension provided under rules of a superannuation fund that:
(a) meet the standards of subregulation 1.06(4); 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.
(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.
6.01A Meaning of terminal medical condition
For Schedule 1, 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) either:
(i) if there is one certification period—the certification period has not ended; or
(ii) otherwise—neither of the certification periods has ended.
6.01B Conditions of release for temporary residents
(1) This regulation applies to a member who is or was a temporary resident.
(2) This regulation does not apply to a member 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.
(3) The only conditions of release that can be satisfied in respect of a member to whom this regulation applies are:
(a) a condition of release that was satisfied by the member before 1 April 2009; and
(b) the conditions of release in items 102, 102A, 103, 103A, 103B, 107A, 109, 111A, 111B, 113A, 202, 202A, 203, 204, 204A, 207AA, 208A and 208B of Schedule 1.
Subdivision 6.1.2—Preserved benefits
6.02 Preserved benefits in regulated superannuation funds—before 1 July 1999
Type A members before 1 July 1999; type B members before changeover day
(1) Subject to regulations 6.06 and 6.12 and to Subdivision 6.1.5, the amount of preserved benefits in a regulated superannuation fund:
(a) for a type A member at any time during the period commencing on the commencement day and ending immediately before 1 July 1999; or
(b) for a type B member at any time during the period commencing on the commencement day and ending immediately before the changeover day;
is the amount required to be preserved under the OSS laws as applied in accordance with subregulation (2).
(2) For subregulation (1), despite the repeal of sections of the Occupational Superannuation Standards Act 1987 by the Occupational Superannuation Standards Amendment Act 1993, the OSS laws are taken to have continued in force, subject to the modifications set out in Schedule 2, in relation to regulated superannuation funds as if the references in the OSS laws (as so modified) to superannuation funds were references to regulated superannuation funds within the meaning of these regulations.
Type B members on and after changeover day
(3) Subject to regulation 6.12 and to Subdivision 6.1.5, the amount of a type B member’s preserved benefits in a regulated superannuation fund at any time on or after the changeover day and before 1 July 1999 is the amount of the member’s total benefits in the fund less the sum of:
(a) the amount of the member’s restricted non‑preserved benefits in the fund as defined by regulation 6.07; and
(b) the amount of the member’s unrestricted non‑preserved benefits in the fund as defined by regulation 6.10.
6.03 Preserved benefits in regulated superannuation funds—on and after 1 July 1999
Subject to regulation 6.12 and to Subdivision 6.1.5, the amount of a member’s preserved benefits in a regulated superannuation fund at any time on or after 1 July 1999 is the amount of the member’s total benefits in the fund less the sum of:
(a) the amount of the member’s restricted non‑preserved benefits in the fund as defined by regulation 6.08; and
(b) the amount of the member’s unrestricted non‑preserved benefits in the fund as defined by regulation 6.10.
6.05 Preserved benefits in approved deposit funds
The amount of a member’s preserved benefits in an approved deposit fund on or after the commencement day is the amount of the member’s total benefits in the fund less the amount of the member’s unrestricted non‑preserved benefits in the fund as defined by regulation 6.11.
6.06 Effect of rollover or transfer on preserved benefits
Subject to regulation 6.12 and to Subdivision 6.1.5, a member’s benefits in a regulated superannuation fund or an approved deposit fund (the transferee fund) that were preserved benefits in the source from which they were received continue to be preserved benefits in the transferee fund.
Note: Approved deposit funds do not have restricted non‑preserved benefits.
6.07 Restricted non‑preserved benefits in regulated superannuation funds—before 1 July 1999
Type A members before 1 July 1999; type B members before changeover day
(1) Subject to regulations 6.09 and 6.12 and to Subdivision 6.1.5, the amount of restricted non‑preserved benefits in a regulated superannuation fund:
(a) for a type A member at any time during the period commencing on the commencement day and ending immediately before 1 July 1999; or
(b) for a type B member at any time during the period commencing on the commencement day and ending immediately before the changeover day;
is the amount of the member’s total benefits in the fund, less the sum of:
(c) the amount of the member’s preserved benefits in the fund as defined by regulation 6.02; and
(d) the amount of the member’s unrestricted non‑preserved benefits in the fund as defined by regulation 6.10.
Type B members on and after changeover day
(2) Subject to regulation 6.12 and to Subdivision 6.1.5, the amount of a type B member’s restricted non‑preserved benefits in a regulated superannuation fund at any time on or after the changeover day and before 1 July 1999 is the greatest of the following amounts:
(a) the total of:
(i) the indexed amount of the member’s restricted non‑preserved benefits (as defined by subregulation (1)) in the fund that would be payable to the member on the changeover day if the member resigned from employment on that day; and
(ii) the indexed amount of the member’s restricted non‑preserved benefits received by the fund from another regulated superannuation fund, an RSA or an EPSSS on or after the changeover day that are subject to indexation in the fund;
(b) the total of:
(i) the indexed amount of the member’s restricted non‑preserved benefits (as defined by subregulation (1)) in the fund on the changeover day that would be payable to the member if the member were retrenched from employment that day; and
(ii) the indexed amount of the member’s restricted non‑preserved benefits received by the fund from another regulated superannuation fund, an RSA or an EPSSS on or after the changeover day that are subject to indexation in that other fund, RSA or EPSSS;
(c) the amount of the member’s restricted non‑preserved contributions in the fund.
(3) Subject to regulation 6.12 and to Subdivision 6.1.5, a type B member’s benefits in a regulated superannuation fund (the transferee fund) that:
(a) were rolled over or transferred from another regulated superannuation fund, an RSA or an EPSSS; and
(b) were indexed amounts of restricted non‑preserved benefits in that other fund, RSA or EPSSS;
continue to be subject to indexation in the transferee fund.
(4) Subject to regulation 6.12 and to Subdivision 6.1.5, a type B member’s benefits in a regulated superannuation fund (the transferee fund) that:
(a) were rolled over or transferred from another regulated superannuation fund, an RSA or an EPSSS; and
(b) were restricted non‑preserved contributions in that other fund, RSA or EPSSS;
continue to be restricted non‑preserved contributions in the transferee fund.
(5) The references in this regulation to indexation apply subject to regulation 6.14.
6.08 Restricted non‑preserved benefits in regulated superannuation funds—on and after 1 July 1999
(1) Subject to regulations 6.09 and 6.12 and to Subdivision 6.1.5, the amount of a member’s restricted non‑preserved benefits in a regulated superannuation fund at any time on or after 1 July 1999 is the sum of the following amounts:
(a) either:
(i) for a type A member who is a defined benefit member and for whom the trustee of the regulated superannuation fund chooses to apply this subparagraph—the greater of the amounts of restricted non‑preserved benefits in the fund, worked out under subregulation 6.07(1), that would be payable to the member on 1 July 1999 if, on 1 July 1999, the member:
(A) resigned from employment; or
(B) was retrenched from employment; or
(ii) for a member to whom subparagraph (i) does not apply—the member’s restricted non‑preserved benefits in the fund on 30 June 1999, worked out under regulation 6.07; and
(b) the member’s restricted non‑preserved benefits received by the fund from another regulated superannuation fund, an RSA or an EPSSS on and after 1 July 1999.
(2) However, if:
(a) on or after 1 July 1999, a deduction is allowed for the member under the former section 82AAT of the Income Tax Assessment Act 1936 for a member 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.
6.09 Effect of rollover or transfer on restricted non‑preserved benefits
Subject to regulation 6.12 and to Subdivision 6.1.5, a member’s benefits in a regulated superannuation fund that were restricted non‑preserved benefits in the source from which they were received continue to be restricted non‑preserved benefits.
(1) Subject to Subdivision 6.1.5, the amount of a member’s unrestricted non‑preserved benefits in a regulated superannuation fund is the sum of:
(a) the amount of benefits of the member that have become unrestricted non‑preserved benefits in the fund in accordance with regulation 6.12; and
(b) the amounts specified in subregulation (2) that the fund receives in respect of the member on or after the commencement day, and that were received by the regulated superannuation fund before 1 July 2004; and
(c) the amount of unrestricted non‑preserved benefits received by the fund in respect of the member on or after the commencement day; 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).
(2) 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) superannuation funds; or
(ii) approved deposit funds within the meaning of:
(A) the 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
(iii) deferred annuities within the meaning of:
(A) this Part; or
(B) the Occupational Superannuation Standards Regulations; or