Guidance Notes and Circulars

Transcription

1 Guidance Notes and Circulars Superannuation Circular No. I.A.1 Contribution and Benefit Accrual Standards for Regulated Superannuation Funds September Australian Prudential Regulation Authority

2 Disclaimer and copyright notice 1. The purpose of this circular is to provide general guidance on how the Australian Prudential Regulation Authority (APRA) interprets and administers relevant legislation. It is not exhaustive in its coverage of rights or obligations under any law. 2. This circular is based on APRA s interpretation of existing laws and may be affected by changes to legislation and Court decisions after the date of this circular. 3. This circular is not legal advice and users are encouraged to obtain professional advice about the application of the relevant legislation to their particular circumstances and to exercise their own skill and care in relation to any material contained in this circular. 4. APRA disclaims any liability for any loss or damage arising out of any use of this circular. 5. This circular is copyright. You may use and reproduce this material in an unaltered form only for your personal, non-commercial use or non-commercial use within your organisation. Apart from any use permitted under the Copyright Act 1968, all other rights are reserved. Requests for other types of use should be directed to APRA. Australian Prudential Regulation Authority 2

3 Contents Objective 4 Introduction 4 Contributions 5 General 5 Types of contributions and when they 5 Contributions for members aged less than 65 5 Contributions for members aged at least 65 but less than 70 5 Contributions for members aged at least 70 but less than 75 5 Contributions for members aged 75 or older 5 Gainful employment 6 Eligible spouse contributions 6 Government co-contributions 6 Contributions made after the relevant period 6 Allocation of contributions in an accumulation fund 6 Contributions splitting 7 Cooling-off provisions in relation to superannuation contributions 8 Clearing houses and superannuation contributions 8 Accrual of benefits 9 Penalties 9 Table 1 Acceptance of contributions 10 Australian Prudential Regulation Authority 3

4 Objective 1. The aim of this circular is to provide guidance on the circumstances in which a trustee of a regulated superannuation fund may accept contributions or grant an accrual of benefits under the Superannuation Industry (Supervision) Act 1993 (SIS Act) and Regulations. 2. This circular replaces Superannuation Circular No. I.A.1 Contribution and Benefit Accrual Standards for Regulated Superannuation Funds released by the Australian Prudential Regulation Authority (APRA) in March The Government has proposed that contribution limits be introduced as part of A Plan to Simplify and Streamline Superannuation announced with the 2006 Commonwealth budget. The changes arising from the simplification plan are expected to be finalised by 1 July This circular will be revised to reflect these changes. Details of the simplication plan are available at the Treasury's website Introduction SIS Act Part 2B and SIS Regulations Part 7 4. The contribution and benefit accrual standards are designed to prescribe the circumstances in which contributions may be and benefits accrue for people in a concessionally taxed environment for the purpose of financing their retirement. 5. These standards seek to ensure that contribution and benefit accruals are for retirement purposes only. Accordingly, there is an age limit (age 75) on or after which contributions or benefit accruals generally, other than those that are mandated employer contributions. 6. Various tax concessions are available in respect of superannuation contributions and details of these are available from the Australian Taxation Office (ATO) at 7. This circular describes the SIS rules relating to contributions and benefit accruals applying at 1 July The trustee of a regulated superannuation fund must only accept contributions made in accordance with Part 7 of the SIS Regulations. One of the requirements of Part 7 of the SIS Regulations is that a trustee that is an RSE licensee of a registrable superannuation entity must not accept contributions unless the entity is registered under Part 2B of the SIS Act. 9. The governing rules of a regulated superannuation fund may prescribe more restrictive contribution and benefit accrual rules than the SIS standards described in this circular. That is, while SIS sets a minimum standard, trustees may, at their discretion, impose more restrictive arrangements in accordance with their powers under the governing rules. Trustees should obtain their own legal advice as to the effect of such provisions. 10. Contributions may be made in-specie (assets other than cash) if made by a person other than a related party of the fund, provided that the antiavoidance and the investment provisions of SIS are not breached. For further information refer to Superannuation Circular No. II.D.3 Acquisition of Assets from Related Parties. Australian Prudential Regulation Authority 4

5 Contributions General Regulations 1.03, 5.01 and The contribution standards apply to all regulated superannuation funds, that is, to both defined benefit funds and accumulation funds. The definition of contributions expressly excludes benefits that have been rolled over or transferred to a fund. For SIS purposes, rollovers and transfers are payments made within the superannuation system. An eligible termination payment from an employer (employer ETP), a transfer from an overseas superannuation fund and a Capital Gains Tax exempt amount are examples of transfers or rollovers from outside the superannuation system. For the purposes of the SIS legislation these payments are contributions and are subject to the contribution standards. For information on rollovers and transfers refer to Superannuation Circular No. I.C.2 Payment Standards for Regulated Superannuation Funds. 12. The rules on acceptance of contributions depend on the type of contribution being made and the age of the member for whom the contribution is made. Types of contributions and when they Regulation Contributions with different treatments under the standards are: Mandated employer contributions (contributions that reduce an employer s superannuation guarantee liability, Superannuation Guarantee Shortfall Components and award and certified agreement contributions); Voluntary employer contributions (all employer contributions other than mandated employer contributions; includes salary sacrifice contributions and employer ETPs); Member contributions (includes transfers from overseas superannuation funds and capital gains tax exempt amounts); Eligible spouse contributions; and Government co-contributions. Contributions for members aged less than The trustee may accept any type of contribution for a member aged less than 65 and is not required to test whether the member is in gainful employment before accepting the contribution. Contributions for members aged at least 65 but less than The trustee may accept mandated employer contributions regard to the level of gainful employment being undertaken by the member. 16. The trustee may accept all other types of contributions provided that the member is gainfully employed on at least a part-time basis (the member has worked for at least 40 hours in a period of not more than 30 consecutive days in the financial year in which the contribution is made). Contributions for members aged at least 70 but less than The trustee may accept mandated employer contributions regard to the level of gainful employment being undertaken by the member. 18. The trustee may also accept member contributions provided that the member is gainfully employed on at least a part-time basis. The trustee is not permitted to accept voluntary employer contributions or eligible spouse contributions for a member aged 70 or older. Contributions for members aged 75 or older 19. The trustee may accept mandated employer contributions regard to the level of gainful employment being undertaken by the member. 20. The trustee is not permitted to accept any other type of contribution for a member aged 75 or older. Australian Prudential Regulation Authority 5

6 Gainful employment Regulations 1.03, 7.01 and For acceptance of contributions, the test of gainful employment for members 65 and older is gainful employment on at least a part time basis in the financial year in which the contribution is made. Under r of the SIS Regulations a member is gainfully employed on a part-time basis during a financial year if the member has worked at least 40 hours in a period of not more than 30 consecutive days in that financial year. The trustee cannot take prospective employment into account the member must have worked at least 40 hours in the financial year before the trustee can accept the contribution. 22. Gainfully employed means employed or selfemployed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment. The concept of gain or reward envisages receipt of remuneration such as salary or wages, business income, bonuses, commissions, fees or gratuities, in return for personal exertion. Eligible spouse contributions Regulations 1.03, 3.01 and A regulated superannuation fund may accept eligible spouse contributions, as defined in s. 159TC of the Income Tax Assessment Act 1936 (ITAA). 24. Eligible spouse contributions are made by a person (a contributing taxpayer) on behalf of their spouse. Spouse (in relation to the contributing taxpayer) is defined in s. 159TC of the ITAA to include a person who, although not legally married to the taxpayer, lives with the taxpayer on a bona fide domestic basis as the husband or wife of the taxpayer. The definition does not include a person who lives separately and apart from the taxpayer on a permanent basis. 25. Eligible spouse contributions may be regardless of employment status where the spouse is under age 65 years. They may also be from ages 65 to 70 provided the spouse is also gainfully employed on at least a part time basis (the spouse member has worked for at least 40 hours in a period of not more than 30 consecutive days in the financial year in which the contribution is made for the spouse). Eligible spouse contributions in any circumstances after the spouse has attained 70 years of age. 26. There are no age limit or employment tests applicable in respect of the contributing taxpayer in relation to eligible spouse contributions. 27. Further information relating to taxation concessions and definitions for eligible spouse contributions may be obtained from the ATO website Government co-contributions Regulations 5.01 and Government co-contributions have been available since 1 July 2003 for members of funds who meet income and other eligibility tests and who make member (i.e. personal, after-tax) contributions. The ATO will generally pay the government co-contribution into the fund which received the member contributions provided that the trustee accepts government cocontributions. Further information on government co-contributions is available from the ATO website Contributions made after the relevant period Regulation 7.04(2) 29. A trustee may accept contributions for a member if the trustee is reasonably satisfied that the contributions are for a period during which the trustee could have contributions for the member. Allocation of contributions in an accumulation fund Regulation The trustee of an accumulation fund (a fund which has no defined benefit members) must allocate Australian Prudential Regulation Authority 6

7 contributions to the relevant members of the fund within 28 days of the end of the month in which the contributions were received, or, if this is not reasonably practicable, within such longer period as is reasonable in the circumstances. A trustee should not accept contributions for someone who is not a member, other than where the trustee has an arrangement with employer-sponsors to enrol members as part of the contribution making process. Contributions splitting 31. A member with an accumulation interest in a regulated superannuation fund may request the trustee to transfer to the member s spouse up to 100 per cent of the untaxed splittable contributions and up to 85 per cent of the taxed splittable contributions made by or on behalf of the member in the previous financial year (and in the current financial year where the member is rolling over or transferring their entire benefit from the fund). A member may make a request only in respect of contributions made from 1 January Splittable contributions include mandated employer contributions, salary sacrifice contributions, member contributions, Government co-contributions, allocated surplus contribution amounts and spouse contributions. Splittable contributions do not include rollovers, transfers or lump sum payments from an eligible non-resident non-complying superannuation fund. 33. Modification declaration No. 1 of 2006 made under s. 332 of the SIS Act introduced transitional arrangements for splittable contributions made during the period 1 January 2006 to 30 June 2006 to an APRA regulated superannuation fund. If a member s benefits were transferred or rolled over to another superannuation fund on or before 30 June 2006, and those benefits included an amount that was a splittable contribution, the new fund can continue to treat those contributions as splittable contributions. This transitional arrangement does not apply where the rollover or transfer was received from a self managed superannuation fund (however, a rollover or transfer received by a self managed superannuation fund from an APRA regulated fund is covered by the transitional arrangement). Further details of modification declaration No. 1 of 2006 obtained from the APRA website at Trustees will not be required to offer contributions splitting. Where contributions splitting is made available and the members request to split their contributions, trustees must make the rollover, transfer or allotment to the receiving spouse as soon as practicable and in any case within 90 days after receiving the request. 35. The contributions transferred to the receiving spouse will be preserved. The intention of r. 6.44(2)(c) of the SIS Regulations is to preclude a member splitting contributions with a spouse over the age of 65 years or with a spouse who had permanently retired at the time the contributions splitting application is made. Without this provision, a receiving spouse over the age of 65 would be able to cash the contributions splitting amount immediately and a spouse who had permanently retired could also apply for immediate cashing on the basis that they continued to satisfy the retirement condition of release (the trustee could cash the amount if it was satisfied that the receiving spouse had not changed their intention never to resume gainful employment). To facilitate contributions splitting, r. 6.44(3) of the SIS Regulations allows for a spouse to make a statement to the effect that the spouse is either under the relevant preservation age or does not satisfy the retirement condition of release at the time of the contributions splitting application. 36. In APRA s view, any of the following circumstances at the time of the contributions splitting application would meet the requirements of r. 6.44(3) of the SIS Regulations: the receiving spouse is aged less than 55 years (the relevant preservation age up until 30 June 2015); the receiving spouse is aged between 55 and 64 years and is currently gainfully employed for 10 or more hours per week; Australian Prudential Regulation Authority 7

8 the receiving spouse is aged between 55 and 64 years, is not currently employed for 10 or more hours per week but does not have the intention never to resume gainful employment of 10 or more hours per week; or the receiving spouse is aged between 55 and 64 years and has never been gainfully employed for 10 or more hours per week. Cooling-off provisions in relation to superannuation contributions Corporations Act and Regulations 37. The cooling-off provisions are contained in the Corporations legislation. The Corporations Regulations were amended in March 2002 to reflect the preservation requirements of Part 6 of the SIS Regulations. Contributions which are repaid under the cooling-off provisions must be transferred or rolled over to another superannuation entity and retained in the superannuation system until a condition of release is met. For information on preservation requirements refer to Superannuation Circular No. I.C.2 Payment Standards for Regulated Superannuation Funds. Clearing houses and superannuation contributions 38. A clearing house in the context of superannuation fund refers to a service that distributes contributions to employees superannuation funds on behalf of the employer. The employer makes a single payment to the clearing house (usually through a direct debit authority) and the clearing house then distributes the contributions and the members data to various funds on the employer s behalf. 39. A clearing house account is a bank account used to receive and disburse superannuation contributions to a number of different superannuation funds. However it may also include non-superannuation deductions and contributions (for example health insurance premiums). 40. In APRA s view, the implications of the SIS legislation for the operation of clearing houses are as follows: A superannuation fund must not accept contributions or grant an accrual of benefits in respect of a person who is not a member of the fund (Division 7.1 of the SIS Regulations). A superannuation fund cannot receive contributions in respect of persons who are not members regardless of whether the contributions are expected to be transferred to other superannuation funds within a short period of time. A clearing house account therefore must be an account in the name of an entity other than the superannuation fund and which is separate to any bank accounts operated by the superannuation fund. The need for a separate account is also reinforced by s. 52(2)(d) of the SIS Act which requires a trustee to keep the money and assets of the superannuation fund separate from any money and assets of the trustee or standard employer sponsor or an associate. For the purposes of the SIS legislation superannuation contributions enter the superannuation system when they are received by a superannuation fund, a retirement savings account or an exempt public sector superannuation scheme. In a clearing house context, where all or nearly all transactions are likely to be electronic, APRA considers that a superannuation fund receives contributions when they are credited to a bank account set up in the name of the fund. If the clearing house pays the superannuation fund by cheque, the superannuation fund receives the contributions on the date it receives the cheque. In the context of Choice of Superannuation Fund, the contributions enter the superannuation system only when they are received by the employee s superannuation fund. Australian Prudential Regulation Authority 8

9 Accrual of benefits Regulations 1.03, 5.01, 7.01, 7.02, 7.03 and In addition to the contribution standards, trustees of defined benefit funds are subject to benefit accrual standards. In applying these standards it is important to note that such funds can generate accumulation type benefits as well as benefits on defined benefit principles. 42. These standards parallel the contribution standards already outlined. Therefore, a trustee of a defined benefit fund may grant an accrual of benefits in the same circumstances as permitted under the contribution standards. 43. As with the contribution standards, benefits rolled over or transferred within the superannuation system are not regarded as an accrual of benefits for the purposes of the benefit accrual standards. 44. The term accrual of benefit does not include allocations of investment earnings. This means that the benefit accrual standards do not prevent a trustee from allocating to a member s benefit account investment earnings by way of investment return based on: a fund s investment return over a period; or a commercially available interest rate (methods typically applied in relation to accumulation- type benefits); or an increase in benefits in proportion to an increase in salary over a period (typically applied in relation to defined benefits). 45. The determination of investment earnings and investment return in relation to a member s benefits are discussed in Superannuation Circular No. I.C.1 Minimum Benefits Standards. Penalties SIS Act Part Most of the requirements outlined in this circular are operating standards which must be complied with at all times. 47. The contribution and payment standards are operating standards. Trustees must be able to demonstrate compliance with the operating standards to their fund s auditor and to APRA. 48. Significant penalties may apply to trustees for failing to comply with these standards. Australian Prudential Regulation Authority 9

10 Table 1 Acceptance of contributions 49. This table summarises the SIS provisions for acceptance of contributions. It should be used as a guide only and reference should be made to the body of the circular and the SIS legislation for further information and requirements. Age of member in years Mandated employer contributions Voluntary employer contributions Member contributions Eligible spouse contributions Government co-contributions Less than but less than 70 provided person gainfully employed on at least a part-time basis provided person gainfully employed on at least a part-time basis provided person gainfully employed on at least a part-time basis (the co-contribution will be in respect of a period where the member was eligible to make personal contributions) 70 but less than 75 provided member gainfully employed on at least a part-time basis. 75 or older Note: Regulation 7.04(2) of the SIS Regulations allows a regulated superannuation fund to accept a contribution in respect of a member if the trustee is reasonably satisfied that the contribution is in respect of a period during which the fund could have the contribution, notwithstanding that the contribution is made after that period. Australian Prudential Regulation Authority 10

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