(ii) in the case of the calculation of value B of accrued benefits—using the earning rate of the fund referred to in paragraph 12.06(2)(d); and
P2 is a proportion that is calculated:
(i) in the case of the calculation of value A of accrued benefits—using the method applied in the actuarial investigation of the fund mentioned in subregulation 12.05(3); and
(ii) in the case of the calculation of value B of accrued benefits—as follows:
Start formula start fraction completed period of fund membership in relation to the member at 30 June 1988 over completed period of fund membership in relation to the member at the members date of exit from the fund end fraction end formula
where a reference to completed period of fund membership in relation to the member at a particular time is a reference to the period from the time at which the member joined, or last joined, the fund to the particular time.
12.08 Date before which applications to be made
For the purposes of paragraph 342(3)(b) of the Act, the day on or before which an application in relation to a fund must be made is the day specified for that purpose by APRA by notice in writing given to the trustee of the fund.
12.09 Application fees
(1) For the purposes of subparagraph 342(3)(d)(ii) of the Act, the following application fees are prescribed:
(a) if the application is for a PJFC that consists of a late payment amount or is the aggregate of late payment amounts—$300;
(b) subject to subregulation (2), if the application is for a PJFC that consists of a shortfall‑in‑assets amount or is the aggregate of shortfall‑in‑assets amounts, an amount calculated using the formula:
Start formula 0.002 times the amount of the PJFC end formula;
(c) if an application is for a PJFC that includes:
(i) a late payment amount or the aggregate of late payment amounts; and
(ii) a shortfall‑in‑assets amount or the aggregate of shortfall‑in‑assets amounts;
the fee prescribed in paragraph (b), as if the PJFC consisted of a shortfall‑in‑assets amount or the aggregate of shortfall‑in‑assets amounts.
(2) A fee under paragraph (1)(b) must not be:
(a) less than $500; or
(b) more than $5,000.
12.10 Prescribed events for the purposes of paragraph 342(4)(a) of the Act
(1) For the purposes of paragraph 342(4)(a) of the Act, a prescribed event in relation to a superannuation fund is any alteration of the governing rules of the fund having the effect that calculation of a pre‑1 July 88 funding amount under the rules as so altered produces an amount that is less than the amount calculated using the formula:
Start formula open bracket PJFC originally granted to the fund close bracket plus open bracket any PJFCs transferred to the fund close bracket minus open bracket any PJFCs transferred from the fund close bracket end formula
(2) A reference in subregulation (1) to a PJFC is a reference to the amount of the PJFC multiplied by the indexation factor calculated in accordance with Subdivision 960‑M of the Tax Act.
12.11 When and how APRA to be notified of prescribed events
(1) For the purposes of paragraph 342(4)(b) of the Act, if a prescribed event occurs in relation to a superannuation fund, the trustee of the fund must give notice in writing to APRA of the event not later than:
(a) a date 3 months after the date of the occurrence; or
(b) 31 March 1995;
whichever happens last.
(2) The notice must have with it:
(a) a statement of an amount that is certified by a superannuation actuary as the amount by which the pre‑1 July 88 funding credits available in the fund is reduced as a result of the prescribed event; and
(b) a statement by the trustees of the fund that describes the prescribed event in sufficient detail to allow the statement to be properly considered.
(3) In spite of subregulation (1), APRA may give notice in writing to the trustee of a superannuation fund extending the time in which the trustee must give notice to APRA of a prescribed event.
12.12 Transfer of PJFCs—trustees of transferor funds
(1) If the trustee of a defined benefit fund proposes to transfer a PJFC, or part of a PJFC, from the fund (in this regulation called the transferor fund) to another superannuation fund (in this regulation called the transferee fund), the trustee may apply in writing to APRA to approve the transfer.
(2) APRA may approve an application only if:
(a) the requirements specified in regulation 12.15 are satisfied; or
(b) if a requirement of that kind is not satisfied—APRA is satisfied that, because of special circumstances, the requirement does not need to be satisfied.
(3) The amount of a PJFC to be transferred must not exceed the lesser of:
(a) the amount of the liability in respect of benefits to be transferred to the transferee fund, being benefits accrued before 1 July 1988; and
(b) the amount of any pre‑1 July 88 funding credits available in the transferor fund immediately before the transfer.
(4) As soon as practicable after a decision is made by APRA to approve a transfer, APRA must give notice in writing of the approval to the trustees of both the transferor fund and the transferee fund.
12.13 Transfer of PJFCs—trustees of transferee funds
(1) The trustee of a superannuation fund (in this regulation called the transferee fund) may apply in writing to APRA to approve the transfer of a PJFC, or part of a PJFC, from a defined benefit fund (in this regulation called the transferor fund), if:
(a) the application arises as a direct result of the transfer of a member or members of the transferor fund, and the benefit entitlements of that member or those members, to 1 or more transferee funds following reconstitution of the transferor fund into the transferee fund or transferee funds; or
(b) the application arises as a direct result of the transfer of a member or members of a transferor fund, and the benefit entitlements of that member or those members, to the transferee fund following the merger of 2 or more transferor funds into the transferee fund; or
(c) the transferee fund:
(i) was constituted on or after 1 July 1988; and
(ii) assumed responsibility for the liabilities, but not all the assets, in respect of contributions for superannuation purposes relating to the employment of persons before that date, being contributions that were made to a transferor fund.
(2) APRA may approve an application only if:
(a) the requirements specified in regulation 12.15 are satisfied; or
(b) where a requirement of that kind is not satisfied—APRA is satisfied that, because of special circumstances, the requirement does not need to be satisfied.
(3) The amount of a PJFC to be transferred must not exceed the lesser of:
(a) the amount of the liability in respect of benefits to be transferred to the transferee fund, being benefits accrued before 1 July 1988; and
(b) the amount of any pre‑1 July 88 funding credits available in the transferor fund immediately before the transfer.
(4) As soon as practicable after a decision is made by APRA to approve a transfer, APRA must give notice in writing of the approval to the trustees of both the transferee fund and the transferor fund.
12.14 Transfer of PJFCs—revocation of approval
APRA may revoke an approval given under regulation 12.12 or 12.13 only if:
(a) information about matters relating to the application for approval that was not available to APRA when APRA made the decision to approve the application becomes available to APRA; and
(b) after considering that information, APRA is satisfied that:
(i) a requirement specified in regulation 12.15 (other than a requirement that does not need to be satisfied under paragraph 12.12(2)(b) or 12.13(2)(b)) was not satisfied in relation to the transfer; or
(ii) in the case of a requirement that, under paragraph 12.12(2)(b) or 12.13(2)(b), does not need to be satisfied—there were no special circumstances to justify the application of that paragraph.
12.15 Transfer of PJFCs—requirements to be satisfied
The requirements referred to in paragraph 12.12(2)(a) and 12.13(2)(a) are that:
(a) a superannuation actuary certifies that the amount of the PJFC to be transferred is reasonable having regard to:
(i) the amount of unfunded liability to be transferred from the transferor fund; and
(ii) the amount of the remaining unfunded liability of that fund;
in relation to the amount of benefits that have accrued before 1 July 1988; and
(b) the trustee of the transferor fund has been given notice by APRA of the grant of the PJFC under subsection 342(2) of the Act; and
(c) at the date of the transfer the amount of the PJFC to be transferred is equal to or less than the amount of the pre‑1 July 88 funding credits available in the transferor fund; and
(d) the transferee fund is a complying superannuation fund, in accordance with section 45 of the Act, in relation to the year of income in which the transfer is to take place; and
(e) a superannuation actuary certifies that sufficient information is available about the accrued entitlements of members of the transferor fund as at 30 June 1988 to enable calculations to be made after that date to ascertain whether a prescribed event has occurred.
12.19 Actuaries to certify in relation to determinations
A superannuation actuary who makes a determination under this Part must certify that the determination:
(a) is consistent with this Part; and
(b) except to the extent (if any) that this Part otherwise requires, is made in accordance with a method that The Institute of Actuaries of Australia would accept as a proper actuarial practice.
12.20 Substituted accounting periods
The trustee of a superannuation fund for which the Commissioner of Taxation has approved a 12‑month period as a substituted accounting period for the purposes of section 18 of the Tax Act may:
(a) treat a reference in this Part to 30 June 1988 as a reference to the last day of the substituted accounting period corresponding to the year of income that ended on 30 June 1988; and
(b) treat a reference in this Part to 1 July 1988 as a reference to the day after that day.
Part 12A—Trans‑Tasman retirement savings portability
Division 1—General
12A.01 Purpose of Part 12A
This Part sets out matters to implement the Arrangement between the Government of Australia and the Government of New Zealand on Trans‑Tasman Retirement Savings Portability, signed at Brisbane on 16 July 2009.
Note 1: The Arrangement does not cover all complying superannuation funds. A number of types of superannuation funds and schemes are excluded (for example, self managed superannuation funds and defined benefit interests in defined benefit funds): see regulation 12A.03.
Note 2: Amounts covered by the Arrangement are:
(a) payments received by complying superannuation funds from KiwiSaver schemes on or after the day the Arrangement comes into force for Australia; and
(b) superannuation benefits paid to KiwiSaver scheme providers by complying superannuation funds on or after the day the Arrangement comes into force for Australia; and
(c) amounts paid between participating Australian funds if the member’s benefits include any New Zealand‑sourced amount; and
(d) superannuation benefits paid to an individual from an interest that includes any New Zealand‑sourced amount; and
(e) amounts paid by the Commissioner of Taxation to a KiwiSaver scheme provider under the Superannuation (Unclaimed Money and Lost Members) Act 1999.
See regulation 12A.03.
Note 3: The matters in this Part are also relevant to Division 312 of Part 3‑30 of the Income Tax Assessment Act 1997, which provides for the taxation treatment of retirement savings to which the Arrangement relates.
12A.02 Definitions for Part 12A
In this Part:
Arrangement means the Arrangement between the Government of Australia and the Government of New Zealand on Trans‑Tasman Retirement Savings Portability, signed at Brisbane on 16 July 2009.
Australian‑sourced amount means:
(a) an amount that:
(i) was originally accrued in a complying superannuation fund; and
(ii) is subsequently received by a KiwiSaver scheme; and
(iii) is identified by the receiving KiwiSaver scheme as an amount described in subparagraph (i); or
(b) an amount that:
(i) is paid by a KiwiSaver scheme provider to a complying superannuation fund; and
(ii) is identified by the complying superannuation fund as an amount described in subparagraph (a)(i); or
(c) an amount that:
(i) is paid to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii) is identified by the Commissioner of Taxation as an amount described in subparagraph (a)(i); or
(d) an amount that:
(i) is paid by the Commissioner of Taxation to a complying superannuation fund under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii) is identified by the complying superannuation fund as an amount described in subparagraph (a)(i).
Note: As part of trans‑Tasman retirement savings portability, an Australian‑sourced amount may eventually be received by the same complying superannuation fund in which it originally accrued or another complying superannuation fund. It will still be an Australian‑sourced amount at that time.
KiwiSaver scheme has the meaning given by subsection 995‑1(1) of the 1997 Tax Act.
KiwiSaver scheme provider has the meaning given by subsection 995‑1(1) of the 1997 Tax Act.
New Zealand‑sourced amount means:
(a) an amount that:
(i) was originally accrued in a KiwiSaver scheme; and
(ii) is subsequently received by a complying superannuation fund; and
(iii) is identified by the complying superannuation fund as an amount described in subparagraph (i); or
(b) an amount that:
(i) is paid by a complying superannuation fund to a KiwiSaver scheme provider; and
(ii) is identified by the KiwiSaver scheme provider as an amount described in subparagraph (a)(i); or
(c) an amount that:
(i) is paid to the Commissioner of Taxation under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii) is identified by the Commissioner of Taxation as an amount described in subparagraph (a)(i); or
(d) an amount that:
(i) is paid by the Commissioner of Taxation to a KiwiSaver scheme provider under the Superannuation (Unclaimed Money and Lost Members) Act 1999; and
(ii) is identified by the KiwiSaver scheme provider as an amount described in subparagraph (a)(i).
returning New Zealand‑sourced amount means a New Zealand‑sourced amount that has been received by the same, or another, complying superannuation fund for the second or subsequent time.
Note 1: As part of trans‑Tasman retirement savings portability, a New Zealand‑sourced amount may eventually be received by the same KiwiSaver scheme in which it originally accrued or another KiwiSaver scheme. It will still be a New Zealand‑sourced amount at that time.
Note 2: If retirement savings move between Australia and New Zealand on more than one occasion, it is likely that:
(a) a part of the savings will be a New Zealand‑sourced amount because that part was originally accrued in a KiwiSaver scheme; and
(b) a part of the savings will be an Australian‑sourced amount because that part was originally accrued in a complying superannuation fund.
tax free component of an Australian‑sourced amount means an amount that:
(a) is, or is part of, an Australian‑sourced amount; and
(b) was, or was included in, the tax free component of the member’s former superannuation interest in Australia before the Australian‑sourced amount was paid to a KiwiSaver scheme.
Note: The Act defines other expressions used in this Part.
12A.03 Payments to which this Part applies
(1) This Part applies in relation to:
(a) a payment made between a complying superannuation fund and a KiwiSaver scheme; and
(b) a payment made between complying superannuation funds that includes a New Zealand‑sourced amount; and
(c) a payment between complying funds if:
(i) the member has an interest in the complying superannuation fund that is, or includes, a New Zealand‑sourced amount; and
(ii) the payment does not include a New Zealand‑sourced amount.
(2) However, this Part does not apply in relation to the following:
(a) a defined benefit interest in a defined benefit fund;
(b) an unfunded public sector superannuation scheme;
(c) a self managed superannuation fund.
(3) Also, this Part does not apply in relation to:
(a) a payment made by a complying superannuation fund to the extent that the payment contains an element untaxed in the fund (within the meaning given by subsection 995‑1(1) of the 1997 Tax Act); and
(b) benefits that are being paid as a pension.
Division 2—New Zealand‑sourced amounts
12A.04 Application of Division 2
This Division applies in relation to:
(a) a New Zealand‑sourced amount received by a complying superannuation fund from a KiwiSaver scheme; and
(b) the treatment of a New Zealand‑sourced amount in a complying superannuation fund.
12A.05 Treatment of New Zealand‑sourced amounts
For the purposes of implementing the Arrangement:
(a) Part 1 of these Regulations applies in relation to a New Zealand‑sourced amount received by a complying superannuation fund from a KiwiSaver scheme; and
(b) the application of Part 1 is modified to the extent necessary to ensure that the Part describes concepts, processes and other matters sufficiently to implement the Arrangement.
12A.06 Benefit protection standards
(1) For the purposes of implementing the Arrangement, Part 5 of these Regulations, as affected by subregulations (2) to (4), applies in relation to:
(a) a New Zealand‑sourced amount received by a complying superannuation fund; and
(b) the treatment of a New Zealand‑sourced amount in a complying superannuation fund.