(a) a contribution that will be included in the assessable income of an entity as:
(i) a taxable contribution for section 274 of the Tax Act; or
(ii) a contribution under Subdivision 295‑C of the 1997 Tax Act; or
(c) an allocated surplus contribution amount.
(2) Each of the following is not a taxed splittable contribution:
(a) a roll‑over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(b) an amount allotted under this Division;
(c) a superannuation lump sum that is paid from a foreign superannuation fund.
(3) Subject to subregulation (4), an untaxed splittable contribution:
(a) is a contribution made by a fund member or by another person to a regulated superannuation fund; but
(b) does not include a contribution of that kind that:
(i) is made after 5 April 2007; and
(ii) will not be included in the assessable income of an entity as:
(A) a taxable contribution for section 274 of the Tax Act; or
(B) a contribution under Subdivision 295‑C of the 1997 Tax Act.
(4) Each of the following is not an untaxed splittable contribution:
(a) a payment made to a superannuation fund by an employer, or by another person under an agreement to which the employer is a party, for the purpose of providing superannuation benefits for, or for dependants of, an employee of the employer;
(b) a roll‑over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(c) an amount allotted under this Division;
(d) superannuation lump sum that is paid from a foreign superannuation fund.
(5) Subject to subregulation (6), an untaxed splittable employer contribution:
(a) is a contribution made by the Commonwealth, a State or a Territory to a public sector superannuation scheme; but
(b) does not include a contribution of that kind that will be included in the assessable income of an entity as:
(i) a taxable contribution for section 274 of the Tax Act; or
(ii) a contribution under Subdivision 295‑C of the 1997 Tax Act.
(6) Each of the following is not an untaxed splittable employer contribution:
(a) a roll‑over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(b) an amount allotted under this Division;
(c) a superannuation lump sum that is paid from a foreign superannuation fund.
6.42 Meaning of splittable contribution
(1) Subject to subregulations (2) and (3), a splittable contribution is:
(a) a contribution to a regulated superannuation fund on or after 1 January 2006; or
(b) an allocated surplus contribution amount that is allocated on or after 1 January 2006.
(2) Each of the following, received for a member of a regulated superannuation fund, is not a splittable contribution:
(a) a roll‑over superannuation benefit within the meaning of Division 306 of the 1997 Tax Act;
(b) an amount allotted under this Division;
(c) a superannuation lump sum that is paid from a foreign superannuation fund;
(d) a directed termination payment or an amount that would form part of the contributions segment of the superannuation interest.
(3) A contribution by the Commonwealth, a State or a Territory to a public sector superannuation scheme in relation to a benefit that accrued in a financial year that commenced before 1 July 2005 is not a splittable contribution.
6.43 Application of Division 6.7
(1) This Division applies to:
(a) an accumulation interest; and
(b) a defined benefit interest that is not a defined benefit component.
(2) This Division does not apply to an interest:
(a) that is subject to a payment split; or
(b) on which a payment flag (within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975) is operating.
6.44 Application to roll over, transfer or allot an amount of contributions
(1) A member of a regulated superannuation fund may, in a financial year, apply to the trustee of the fund to roll over, transfer or allot an amount of benefits, for the benefit of the member’s spouse, that is equal to an amount of the splittable contributions made to that fund by, for, or on behalf of the member in:
(a) the last financial year that ended before the application; or
(b) the financial year in which the application is made—where the member’s entire benefit is to be rolled over, transferred or cashed in that year.
Note: This arrangement applies at the request of the member, and is not an arrangement by which the member’s superannuation interest is subject to a payment split under Part VIIIB or VIIIC of the Family Law Act 1975. Part 7A of these Regulations deals with those payment splitting arrangements.
(2) However, the application is taken to be invalid:
(a) if in the financial year in which it is made:
(i) the member has already made an application in respect of the relevant financial year; and
(ii) the trustee:
(A) is considering the application; or
(B) has given effect to that application; or
(b) if the amount of benefits to which the application relates exceeds the maximum splittable amount; or
(c) subject to subregulation (3), if, at the time of application:
(i) the member’s spouse is aged 65 years or more; or
(ii) both:
(A) the member’s spouse is aged between the relevant preservation age and 65 years; and
(B) the member’s spouse satisfies the condition of release specified in item 101 of Schedule 1.
(3) Despite paragraph (2)(c), an application is not taken to be invalid under that paragraph if the application includes a statement by the member’s spouse to the effect that, at the time of application, the spouse:
(a) is aged less than the relevant preservation age; or
(b) both:
(i) is aged between the relevant preservation age and 65 years; and
(ii) does not satisfy the condition of release specified in item 101 of Schedule 1.
(4) The applicant must specify, in the application, the amount of the benefit from the following:
(a) the member’s taxed splittable contributions;
(b) the member’s untaxed splittable contributions;
(c) the member’s untaxed splittable employer contributions;
that the member seeks to split for the benefit of the member’s spouse.
Note: An amount rolled over, transferred or allotted under this Division is a contributions‑splitting superannuation benefit.
6.45 Decision on application
(1) A trustee may accept an application made under subregulation 6.44(1) if all of the following conditions are satisfied:
(a) the application complies with regulation 6.44;
(b) the trustee has no reason to believe that the statement mentioned in subregulation 6.44(3) is untrue;
(c) the amount to which the application relates is not more than the maximum splittable amount for the relevant financial year.
Note: A superannuation fund trustee may voluntarily provide a service that allows a member to rollover, transfer or allot an amount to the applicant’s spouse (a splittable contribution). The fund is not required to offer the service.
(2) A trustee that accepts an application in accordance with subregulation (1) must as soon as practicable, and in any case within 30 days after receiving the application, roll over, transfer or allot the amount of benefits for the benefit of the receiving spouse.
(3) If the application requests a split of untaxed splittable contributions, the trustee may give effect to the application only if the amount specified in the application is no more than the crystallised segment that would form part of the superannuation interest that would be payable if the member withdrew the member’s entire benefits at the time of the trustee giving effect to the application.
(4) If the application requests a split of taxed splittable contributions, the trustee may give effect to the application only if the amount specified in the application is no more than the element taxed in the fund of the taxable component that would form part of the superannuation benefit that would be payable if the member withdrew the member’s entire benefits at the time of the trustee giving effect to the application.
(5) If the application requests a split of untaxed splittable employer contributions, the trustee may give effect to the application only if the amount specified in the application is no more than the element untaxed in the fund of the taxable component that would form part of the superannuation benefit that would be payable if the member withdrew the member’s entire benefits at the time of the trustee giving effect to the application.
6.46 Receiving spouse
For this Part, if a trustee accepts an application made under subregulation 6.44(1), the applicant’s spouse is a receiving spouse.
Division 6.8—Conditions for the use of tax file numbers to facilitate consolidation or rollover
6.47 Definitions for Division 6.8
In this Division:
beneficiary means a person who quotes his or her tax file number to a trustee in accordance with subsection 299LA(1) of the Act, and that is:
(a) a beneficiary of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme; or
(b) an applicant to become such a beneficiary.
RSA provider or superannuation entity means an RSA provider, eligible superannuation entity or regulated exempt public sector superannuation scheme.
trustee means a trustee of an eligible superannuation entity or of a regulated exempt public sector superannuation scheme.
6.48 Conditions for use of tax file numbers
For subsection 299LA(2) of the Act, this Division contains the conditions for the use of tax file numbers quoted by a beneficiary to a trustee in accordance with subsection 299LA(1) of the Act.
6.49 Consent to use beneficiary’s tax file number
A trustee must obtain the consent of the beneficiary to use the beneficiary’s tax file number in order to facilitate the consolidation of amounts for a beneficiary by undertaking either or both of the procedures in regulation 6.50.
6.50 Procedure for searching for amounts to facilitate consolidation by rollover
In order to facilitate the consolidation of amounts for a beneficiary, a trustee must use either or both of the following procedures to determine whether amounts are held for the beneficiary by another RSA provider or superannuation entity:
(a) seeking superannuation information relating to the beneficiary using a facility provided by the Australian Taxation Office;
(b) contacting an RSA provider or superannuation entity to seek superannuation information relating to the beneficiary.
Part 6A—Portability forms
6A.01 Establishment of scheme
(1) The purpose of this Part is to establish a scheme under which:
(a) a member of a regulated superannuation fund or approved deposit fund may give the Commissioner of Taxation a request to roll over or transfer the member’s withdrawal benefit held by the fund; and
(b) the Commissioner of Taxation may pass the request mentioned in paragraph (a) to the trustee of the fund.
(2) This Part is made for section 34A of the Act.
(3) Words and expressions in this Part have the same meaning as in Part 6.
6A.02 Request to rollover or transfer withdrawal benefit
(1) A member of a regulated superannuation fund or an approved deposit fund may give the Commissioner of Taxation a request to roll over or transfer the member’s withdrawal benefit held by the fund if:
(a) Division 6.5 of Part 6 applies to the fund and withdrawal benefit; and
(b) the Commissioner of Taxation holds information about the member’s interest in the regulated superannuation fund or approved deposit fund; and
(c) the request is to roll over or transfer an amount that is the whole of the member’s withdrawal benefit to a complying superannuation fund.
(2) The request to the Commissioner of Taxation must:
(a) be in the approved form; and
(b) contain the information required by the Commissioner.
6A.03 Verification of data
(1) The Commissioner of Taxation must:
(a) confirm the identity of the member and his or her membership of the complying superannuation fund to which the roll over or transfer is to be made; and
(b) confirm the ownership of the withdrawal benefit; and
(c) identify the account in the complying superannuation fund to which the roll over or transfer is to be made; and
(d) then give the request to the trustee of the fund that holds the member’s withdrawal benefit.
(2) Despite subregulation (1), the Commissioner may decline to give the request to the trustee if:
(a) the request does not comply with the requirements mentioned in regulation 6A.02; or
(b) it appears to the Commissioner that conduct has been, is being, or is proposed to be, engaged in by a trustee or an investment manager of the complying superannuation fund to which the roll over or transfer is to be made that is likely to adversely affect the values of the interests of beneficiaries of that fund.
Part 7—Contribution and benefit accrual standards (regulated superannuation funds)
Division 7.1—General
7.01 Interpretation
(1) In this Division, a reference to the accrual of benefits in a fund does not include:
(a) allocations of investment earnings or charging of costs; or
(b) benefits rolled over or transferred into the fund.
(2) Expressions used in this Division that are defined for the purposes of Part 5 have the same meanings respectively as in that Part.
7.02 Application of Division 7.1
This Division applies only to regulated superannuation funds.
7.03 Restriction on accepting contributions or granting benefit accruals
(1) For the purposes of subsection 31(1) of the Act, the requirement in subregulation (2) is a standard applicable to the operation of a regulated superannuation fund to which this Division applies.
(2) Except in accordance with this Division, a regulated superannuation fund must not:
(a) accept contributions; or
(b) grant an accrual of benefits.
7.03A Acceptance of contributions—registrable superannuation entities
(1) For paragraph 31(2)(d) of the Act, the standard stated in subregulation (2) is applicable to a registrable superannuation entity that is a regulated superannuation fund.
(2) A trustee of the registrable superannuation entity must not accept contributions unless the registrable superannuation entity is registered under Part 2B of the Act.
7.04 Acceptance of contributions—regulated superannuation funds
(1) A regulated superannuation fund may accept contributions only in accordance with the following table and subregulations (1A), (2), (4) and (6).
Acceptance of contributions
Item If a member: then the fund may accept contributions made in respect of the member that are:
1 is less than 55 years (a) employer contributions; or(b) member contributions.
2 is between 55 and 74 years (a) employer contributions; or(b) member contributions.
3 is 75 years or older (a) mandated employer contributions; or(b) downsizer contributions.
Note: For table item 2, member contributions include downsizer contributions.
(1A) Despite items 2 and 3 of the table in subregulation (1), the fund may also accept contributions made in respect of a member, and received on or before the day that is 28 days after the end of the month in which the member turns 75 years, that are:
(a) employer contributions other than mandated employer contributions; or
(b) member contributions other than downsizer contributions.
Note: Other rules may be relevant to making certain contributions in respect of a member. For example:
(a) downsizer contributions are limited to persons aged 55 or over (see paragraph 292‑102(1)(a) of the 1997 Tax Act); and
(b) there are rules about deducting personal contributions to a superannuation fund (see Subdivision 290‑C of the 1997 Tax Act). In particular, work test conditions apply to deducting certain contributions made from age 67 until the day referred to in subregulation (1A) (see subsection 290‑165(1A) of the 1997 Tax Act).
(2) In addition to subregulations (1) and (1A), the regulated superannuation fund must not accept any member contributions if the member’s tax file number has not been quoted (for superannuation purposes) to the trustee of the fund.
(4) If a regulated superannuation fund receives an amount in a manner that is inconsistent with subregulation (1), (1A) or (2):
(a) the fund must return the amount to the entity or person that paid the amount within 30 days of becoming aware that the amount was received in a manner that is inconsistent with subregulation (1), (1A) or (2), unless:
(i) the amount was received in a manner that is inconsistent with subregulation (2); and
(ii) the member’s tax file number is quoted (for superannuation purposes) within 30 days of the amount being received by the trustee of the fund; and
(b) the fund is also authorised to take any of the following action to the extent that the rules of the fund allow:
(i) if the price at which the interest could have been acquired on the day on which the amount is returned is less than the price on the day on which the interest was acquired, the amount that would otherwise be returned to the entity or person that paid the amount may be reduced by the amount of the difference between the prices;
(ii) if the price at which the interest could have been acquired on the day of return of the amount is greater than the price on the day on which the interest was acquired, the amount that would otherwise be returned to the entity or person that paid the amount may be increased by the amount of the difference between the prices;
(iii) if the price at which the interest could be acquired cannot be determined in accordance with the contract or legal relationship on the day on which the amount is returned, the price is to be determined:
(A) on the basis of the most recent day on which a price was calculated in accordance with the contract or legal relationship; or
(B) if there is no day of that kind—as soon as practicable after the decision is made to return the amount;