1.01Name of Regulations
These Regulations are the Retirement Savings Accounts Regulations 1997.
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These Regulations are the Retirement Savings Accounts Regulations 1997.
In these Regulations, unless the contrary intention appears:
1997 Tax Act means the Income Tax Assessment Act 1997.
account based pension means a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(3D).
Act means the Retirement Savings Accounts Act 1997.
adjusted base amount, in relation to a non‑member spouse at a particular date, means the adjusted base amount applicable to the non‑member spouse (within the meaning of the Family Law (Superannuation) Regulations 2025) at that date.
advance instalment of surcharge means the advance instalment payable under section 11 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997.
AFCA (short for the Australian Financial Complaints Authority) has the same meaning as in the Corporations Act 2001.
AFCA scheme has the same meaning as in the Corporations Act 2001.
allocated pension means a pension provided under the terms and conditions of an RSA that meet the standards of subregulation 1.07(2).
allot, for Division 4.5, means to credit an amount from an RSA holder’s account to another account in the regulated superannuation fund held by, or created for, the receiving spouse otherwise than by transfer or roll‑over.
base amount payment split, in relation to an RSA interest, means a payment split under which a base amount is allocated to the non‑member spouse in relation to the interest under Part VIIIB or VIIIC of the Family Law Act 1975.
capital gains tax exempt component has the same meaning as CGT exempt component in subsection 27A(1) of the Tax Act as in force immediately before 1 July 2007.
commencement day, in relation to a pension, means the first day of the period to which the first payment of the pension relates.
contributions, in relation to an RSA, includes:
payments of shortfall components to the RSA; and
payments to the RSA from the Superannuation Holding Accounts Special Account;
but does not include benefits that have been rolled over or transferred to the RSA.
costs, in relation to the benefits of the holder of an RSA in the RSA as at any time, means the total costs charged to those benefits down to that time and includes:
the direct costs of establishing, operating and terminating the RSA; and
any administrative, insurance and taxation costs relating to the establishment, operation and termination of the RSA; and
any amounts of Government co‑contribution required to be repaid under section 24 of the Superannuation (Government Co‑contribution for Low Income Earners) Act 2003.
Examples of ‘taxation costs’ contributions tax, superannuation contributions surcharge.
eligible application, in relation to an RSA, means:
if, under section 1440 of the Corporations Act 2001, section 51 of the Act (as in force immediately before the FSR commencement) continues to apply to the RSA—an eligible application within the meaning of section 51 of the Act; and
in any other case—an eligible application within the meaning of subsection 1016A(1) of the Corporations Act 2001.
eligible rollover fund has the same meaning as in Part 24 of the SIS Act.
eligible spouse contribution means a contribution made by an individual to a superannuation fund:
to provide superannuation benefits for the individual’s spouse, whether or not the benefits would be payable to the dependants of the individual’s spouse if the spouse dies before or after becoming entitled to receive the benefits; and
in circumstances in which the individual:
could not have deducted the contribution under section 82AAC of the Tax Act in the 2006—07 income year or a previous year; and
cannot deduct the contribution under Subdivision 290‑B of the 1997 Tax Act in the 2007—08 income year or a later year.
employer contribution, in relation to an RSA, means a contribution by, or on behalf of, an employer of an RSA holder.
EPSSS means an exempt public sector superannuation scheme.
exempt public sector superannuation scheme has the same meaning as in the SIS Act.
flag lifting agreement means a flag lifting agreement within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
FSR commencement has the same meaning as in section 1410 of the Corporations Act 2001.
full‑time, in relation to being gainfully employed, means gainfully employed for at least 30 hours each week.
gainfully employed means employed or self‑employed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment.
growth phase, for an RSA interest, has the meaning given by regulation 1.05A.
industrial authority means:
a court, or a tribunal or other body or person, constituted under a law of the Commonwealth, a State or a Territory with power of conciliation or arbitration in relation to industrial disputes; or
a special board constituted under the law of a State relating to factories.
investment earnings, in relation to the benefits (or to benefits of a particular kind) of an RSA holder as at any time, means the total of the amounts credited to the RSA:
if the RSA is an account—by way of positive interest; or
if the RSA is a policy—by way of positive investment returns or increases in the value of assets in which the policy is invested;
down to that time in respect of those benefits.
life expectancy has the same meaning as life expectation factor in section 27H of the Tax Act.
lost RSA holder has the meaning given by regulation 1.06.
mandated employer contributions, in relation to an RSA holder, means contributions by, or on behalf of, an employer that are equal to the sum of:
the contributions made by, or on behalf of, the employer to an RSA in relation to the RSA holder, that:
reduce the employer’s potential liability for the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992; or
are payments of shortfall components; and
the contributions (other than contributions of the kind specified in paragraph (a)) made by, or on behalf of, the employer to the RSA in relation to the RSA holder in or towards satisfaction of the employer’s obligation to make contributions for the RSA holder, being an obligation under an agreement certified, or an award made, on or after 1 July 1986 by an industrial authority.
mandated employer‑financed benefits, in relation to an RSA holder as at a particular time, means benefits equal to the sum of:
the amount of the mandated employer contributions (if any) made to the RSA down to that time; and
the amount of the mandated employer‑financed benefits (if any) paid into the RSA down to that time; and
the amount of the investment earnings on those contributions and benefits down to that time;
less the costs applicable to the amounts down to that time.
market linked pension means a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(3A).
member has the same meaning as in the SIS Regulations.
member spouse, in relation to an RSA interest that is subject to a payment split, means the person who is the member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interest.
non‑member spouse, in relation to an RSA interest that is subject to a payment split, means the person who is the non‑member spouse within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975 in relation to the interest.
old Regulations means these Regulations as in force immediately before the FSR commencement.
operative time, for a payment split, means the operative time for the purposes of Part VIIIB or VIIIC (as the case may be) of the Family Law Act 1975 for the payment split.
part‑time, in relation to being gainfully employed, means gainfully employed for at least 10 hours, and less than 30 hours, each week.
payment split means a payment split within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
payment split notice means a notice given by an RSA provider under regulation 4A.03.
percentage payment split, in relation to an RSA interest, means a payment split under a superannuation agreement, flag lifting agreement or splitting order that specifies a percentage that is to apply to all splittable payments in respect of the interest.
protected RSA holder means an RSA holder who has withdrawal benefits, or benefits of any other type that are payable on closing the RSA otherwise than voluntarily, net of any applicable exit fee, that:
are less than $1,000; and
contain, or have contained, benefits that are mandated employer‑financed benefits.
receiving spouse has the meaning given by regulation 4.43.
reporting period means a reporting period determined in accordance with the matters mentioned in subsection 1017D(2) of the Corporations Act 2001.
retirement phase has the same meaning as in the 1997 Tax Act.
reviewable decision means a decision of APRA to determine a form of consent under paragraph (b) of the definition of consent under regulation 4.30 or subregulation 4A.27(8).
RSA holder contributions, in relation to an RSA holder, means contributions by, or on behalf of, the RSA holder to the RSA, but does not include employer contributions made in respect of the RSA holder.
RSA holder‑financed benefits, in relation to an RSA holder as at a particular time, means benefits equal to the sum of:
the amount of the RSA holder contributions (if any) made to the RSA down to that time; and
the amount of the RSA holder‑financed benefits (if any) paid into the RSA down to that time; and
the amount of the investment earnings on those contributions and benefits down to that time;
less the costs applicable to those amounts down to that time.
RSA holder‑protection standards means the standards set out in subregulation 3.12(2) and regulation 3.13.
RSA interest means an interest that a person has as the holder of an RSA, but does not include a reversionary interest.
SGA Act means the Superannuation Guarantee (Administration) Act 1992.
shortfall component has the same meaning as in the SGA Act.
SIS Act means the Superannuation Industry (Supervision) Act 1993.
SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994.
splittable payment means a splittable payment within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
splitting order means a splitting order within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
superannuation agreement means a superannuation agreement within the meaning of Part VIIIB or VIIIC of the Family Law Act 1975.
superannuation contributions surcharge means the superannuation contributions surcharge imposed by the Superannuation Contributions Tax Imposition Act 1997.
Superannuation Holding Accounts Special Account means the Special Account established by section 8 of the Small Superannuation Accounts Act 1995.
superannuation income stream has the same meaning as in the 1997 Tax Act.
superannuation lump sum has the meaning given by subsection 995‑1(1) of the 1997 Tax Act.
Tax Act means the Income Tax Assessment Act 1936.
transferable benefits, in relation to an RSA interest that is subject to a payment split and in relation to the non‑member spouse in relation to that interest, means benefits that are equal to:
if the payment split is a base amount payment split and an adjusted base amount applies to the non‑member spouse when the benefits are transferred—the adjusted base amount less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
if the payment split is a base amount payment split and an adjusted base amount does not apply to the non‑member spouse when the benefits are transferred—the base amount allocated to the non‑member spouse, within the meaning of section 72 of the Family Law (Superannuation) Regulations 2025, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
if the payment split is a percentage payment split:
for an entitlement in respect of an interest in the growth phase—the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025 multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non‑member spouse in respect of the payment split; or
for an entitlement in respect of any other interest—the amount in relation to the interest at the time when the benefits are transferred, determined in the way in which a court would determine an amount in accordance with the relevant method in Part 6 of the Family Law (Superannuation) Regulations 2025, multiplied by the percentage specified in the relevant superannuation agreement, flag lifting agreement or splitting order, less the amount of any fees payable by the non‑member spouse in respect of the payment split.
withdrawal benefit, in relation to an RSA holder, means the total amount of the benefits that would be payable:
to the RSA holder; and
in respect of the RSA holder, to:
another RSA; or
the trustee of a superannuation entity or an EPSSS; and
to another person or entity because of a payment split in respect of the RSA holder’s interest in the RSA;
if the RSA holder voluntarily ceased to be an RSA holder.
For the purposes of the definition of protected RSA holder in subregulation (1), a benefit in an RSA is taken to contain or to have contained mandated employer‑financed benefits unless the RSA provider knows otherwise.
For the purposes of section 13 of the Act, the criterion that the person must be an individual is prescribed.
For the purposes of the definition of approved auditor in section 16 of the Act, individuals each of whom is:
under Division 2 of Part 9.2 of the Corporations Law, registered, or taken to be registered, as an auditor; and
a Member of CPA Australia Limited or the Institute of Chartered Accountants in Australia;
constitute a specified class.
An RSA interest is taken to be in the growth phase at a particular date, if the RSA holder satisfies 1 of the following requirements at that date:
the RSA holder has not satisfied a relevant condition of release;
the RSA holder has satisfied a relevant condition of release but no benefit has been paid in respect of the RSA interest, and no action has been taken by or for the RSA holder under the terms and conditions of the RSA to cash any benefit that the RSA holder is entitled to be paid as a result of satisfying the condition of release;
the RSA holder has satisfied a relevant condition of release and a benefit (other than a benefit that is paid as a pension) has been paid to, or for the benefit of, the RSA holder or, if the RSA holder has died, to his or her legal personal representative, but no action has been taken by or for the RSA holder, or his or her legal personal representative, under the terms and conditions of the RSA to receive any other benefit that the RSA holder, or his or her estate, is entitled to be paid as a result of satisfying the condition of release.
In this regulation:
relevant condition of release means a condition of release mentioned in item 101, 102, 103, 106 or 107 of Schedule 2.
An RSA holder is taken to be a lost RSA holder at a particular time if:
the RSA holder is uncontactable, that is, if and only if:
either:
the RSA provider has never had an address (whether non‑electronic or electronic) for the RSA holder; or
the RSA provider has made one or more attempts to send written communications to the RSA holder at the holder’s last known address (or addresses), and believes, on reasonable grounds, that the holder can no longer be contacted at that address (or those addresses); and
the RSA holder has not contacted the RSA provider (whether by written communication or otherwise) within the last 12 months of the RSA holder’s being an RSA holder; and
the RSA holder has not accessed details about the RSA holder’s account from any electronic facility provided by the RSA provider within the last 12 months of the RSA holder’s being an RSA holder; and
the RSA provider has not received a contribution or rollover in respect of the RSA holder within the last 12 months of the RSA holder’s being an RSA holder; or
the RSA holder is an inactive RSA holder, that is, if and only if:
he or she has been an RSA holder for longer than 2 years; and
the RSA has not received a contribution or rollover in respect of him or her within the last 5 years of his or her being an RSA holder;
unless:
within the last 2 years of the RSA holder’s being an RSA holder, the RSA provider has verified that the RSA holder’s address is correct and has no reason to believe that that address is now incorrect; or
the RSA holder is permanently excluded from being a lost RSA holder.
To avoid doubt, for the purposes of this regulation, a written communication includes a written communication by non‑electronic means or by electronic means.
For the purposes of subregulation (1), and subject to subregulation (3), an RSA holder is permanently excluded from being a lost RSA holder if:
the RSA holder is an inactive RSA holder who has indicated by a positive act (for example, deferring a benefit in the RSA) that he or she wishes to continue to be an RSA holder; or
the RSA holder has contacted the RSA provider at any time after the time at which he or she became an RSA holder and indicated that he or she wishes to continue being an RSA holder.
The RSA provider may decide that:
an RSA holder, a class of RSA holders, or all RSA holders cannot be permanently excluded from becoming lost RSA holders; or
an RSA holder who is, a class of RSA holders who are, or all RSA holders who are permanently excluded from being lost is or are not to continue being permanently excluded from being lost.
Subregulations (1), (2) and (3) also apply to a person who is a non‑member spouse in relation to an RSA interest that is subject to a payment split as if the person were an RSA holder.
If a lost RSA holder is transferred to a superannuation entity or an EPSSS, the RSA provider must supply certain information about the RSA holder to the trustee of the superannuation entity or the EPSSS (see regulation 7.9.82 of the Corporations Regulations 2001).
Becoming a lost RSA holder may also have consequences regarding the information to be supplied to the RSA holder (see regulation 7.9.60A of, and Part 14 of Schedule 10A to, the Corporations Regulations 2001).
A benefit is taken to be a pension for the purposes of the Act if it is provided under terms and conditions of an RSA that:
meet the standards of subregulation (3D); and
do not permit the capital supporting the pension to be added to by way of contribution or rollover after the pension has commenced; and
meet the standards of regulation 1.08A.
A benefit that commenced to be paid before 20 September 2007 is taken to be a pension for the purposes of the Act if it is provided under terms and conditions of an RSA that meet the standards of subregulation (2) or (3A).
A benefit that commenced to be paid on or after 20 September 2007 is taken to be a pension for the purposes of the Act if:
the benefit arises under terms and conditions of an RSA that meet the standards of:
subregulation (3A); and
subregulation (3D); and
the benefit was purchased with a rollover superannuation benefit that resulted from the commutation of:
an annuity provided under a contract that meets the standards of subregulation 1.05(2), (9) or (10) of the SIS Regulations; or
a pension provided under rules that meet the standards of subregulation 1.06(2), (7) or (8) of the SIS Regulations; or
a pension provided under terms and conditions of an RSA that meet the standards of subregulation (3A).
Terms and conditions of an RSA meet the standards of this subregulation if they at least ensure that:
the pension is not able to be transferred to a person other than a reversionary beneficiary on the death of the primary beneficiary or of another reversionary beneficiary; and
the capital value of the pension, and the income from it, cannot be used as security for a borrowing; and
payments are made at least once in each financial year; and
for a pension that has a commencement day before 1 January 2006—the payments in a year (excluding payments by way of commutation but including payments made under a payment split) are not larger or smaller in total than, respectively, the maximum and minimum limits calculated in accordance with Schedule 1; and
for a pension that has a commencement day on or after 1 January 2006—the payments in a year (excluding payments by way of commutation but including payments made under a payment split) are not larger or smaller in total than the following:
for payments made during the period starting on 1 January 2006 and ending on 30 June 2006—the respective maximum and minimum limits for the year calculated in accordance with 1 of the following Schedules:
Schedule 1;
Schedule 1A;
for payments made on or after 1 July 2006—the respective maximum and minimum limits for the year calculated in accordance with Schedule 1A; and
for a pension that has a commencement day before 1 January 2006—before full commutation or transfer of the pension, a payment at least equal to the minimum limits calculated in accordance with Schedule 1 must be made; and
for a pension that has a commencement day on or after 1 January 2006—before full commutation or transfer of the pension, a payment is made that is:
for a payment made during the period starting on 1 January 2006 and ending on 30 June 2006—at least equal to the minimum limit for the year calculated in accordance with which 1 of the following Schedules was chosen for the pension under paragraph 1.07(2)(da):
Schedule 1;
Schedule 1A;
for a payment made on or after 1 July 2006—at least equal to the minimum limit for the year calculated in accordance with Schedule 1A.
For the purpose of determining whether the terms and conditions meet the standards in paragraphs (2)(c) and (d), it is immaterial:
that:
the commencement day occurs on or after 1 April in a financial year; and
the terms and conditions do not provide for the payment of an amount in that financial year that meets the standard for the minimum limit in paragraph (2)(d); or
that the terms and conditions do not ensure that the payments in the year in which the pension is to end meet the standard for the minimum limit in paragraph 2(d).
Terms and conditions of an RSA that provides a benefit (the market linked pension) meet the standards of this subregulation if they at least ensure that:
the market linked pension:
is paid at least annually to the primary beneficiary or to a reversionary beneficiary throughout a period equal to the primary beneficiary’s life expectancy on the commencement day of the pension, rounded up to the next whole number if the primary beneficiary’s life expectancy does not consist of a whole number of years; or
is paid at least annually to the primary beneficiary or to a reversionary beneficiary throughout a period equal to the primary beneficiary’s life expectancy mentioned in subparagraph (i) calculated, at the option of the primary beneficiary, as if the primary beneficiary were up to 5 years younger on the commencement day; or
if the pension has a commencement day on or after 1 January 2006—the pension is paid at least annually to the primary beneficiary or reversionary beneficiary throughout a period that is not less than the period available under subparagraph 1.07(3A)(a)(i), and not more than the greater of the following periods:
the maximum period available to the primary beneficiary under subparagraph 1.07(3A)(a)(ii);
the period of years equal to the number that is the difference between the age attained by the primary beneficiary at his or her most recent birthday before the commencement day, and 100; or
if:
the pension is a pension that reverts to a surviving spouse on the death of the primary beneficiary; and
the life expectancy of the primary beneficiary’s spouse is greater than the life expectancy of the primary beneficiary; and
the primary beneficiary has not chosen to make an arrangement mentioned in subparagraph (i), (ii) or (iia) for the pension;
the pension is paid at least annually to the primary beneficiary or to a reversionary beneficiary throughout a period equal to:
the life expectancy of the spouse on the commencement day; or
the life expectancy of the spouse calculated, at the option of the primary beneficiary, as if the spouse were up to 5 years younger on the commencement day; or
if the pension has a commencement day on or after 1 January 2006—a period that is not less than the period available under sub‑subparagraph 1.07(3A)(a)(iii)(D), and not more than the greater of the following periods:
the maximum period available under sub‑subparagraph 1.07(3A)(a)(iii)(E);
the period of years equal to the number that is the difference between the age attained by the spouse at his or her most recent birthday before the commencement day, and 100;
at the option of the primary beneficiary, and rounded up to the next whole number if the life expectancy of the spouse, or the period, does not consist of a whole number of years; and
the total amount of the payments to be made in a year (excluding payments by way of commutation but including payments made under a payment split) is determined in accordance with Schedule 4; and
the market linked pension does not have a residual capital value; and
the terms and conditions of the market linked pension meet the standards of regulation 1.08; and
the market linked pension cannot be commuted except:
if the pension is not funded from the commutation of:
another pension that is provided under terms and conditions that meet the standards of this subregulation; or
an annuity that is provided under a contract that meets the standards of subregulation 1.05(2), (3), (9) or (10) of the SIS Regulations; or
a pension that is provided under rules that meet the standards of subregulation 1.06(2), (3), (7) or (8) of the SIS Regulations;
and the commutation is made within 6 months after the commencement day of the pension; or
subject to subparagraph (iii), on the death of the primary beneficiary or reversionary beneficiary, by payment of:
a lump sum or a new pension to one or more dependants of either the primary beneficiary or reversionary beneficiary; or
a lump sum to the legal personal representative of either the primary beneficiary or reversionary beneficiary; or
if, after making reasonable enquiries, the provider of the pension is unable to find a person mentioned in sub‑subparagraph (A) or (B)—a lump sum to another individual; or
for subparagraph (ii), if the primary beneficiary has opted, under subparagraph (a)(iii), for a period worked out in relation to the life expectancy or age of the primary beneficiary’s spouse—the market linked pension cannot be commuted until the death of both the primary beneficiary and the spouse; or
if the superannuation lump sum resulting from the commutation is transferred directly to the purchase of:
another pension that is provided under terms and conditions that meet the standards of this subregulation; or
an annuity that is provided under a contract that meets the standards of subregulation 1.05(2), (3), (9) or (10) of the SIS Regulations; or
a pension that is provided under rules that meet the standards of subregulation 1.06(2), (3), (7) or (8) of the SIS Regulations; or
if regulation 1.08AA applies to the commutation; or
to pay a superannuation contributions surcharge; or
to give effect to an entitlement of a non‑member spouse under a payment split; or
for the purpose of paying an amount 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, to give effect to a release authority in respect of the primary beneficiary; or
the market linked pension was commenced in contravention of Part 4 and the commutation would result in 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; or
in order to comply with section 136‑80 in Schedule 1 to the Taxation Administration Act 1953; and
if the market linked pension reverts, it does not have a reversionary component greater than 100% of the account balance immediately before the reversion; and
if the market linked pension is commuted, the commutation amount cannot exceed the account balance immediately before the commutation; and
the market linked pension can be transferred only:
on the death of the primary beneficiary:
to 1 of the dependants of the primary beneficiary; or
to the legal personal representative of the primary beneficiary; or
on the death of the reversionary beneficiary:
to 1 of the dependants of the reversionary beneficiary; or
to the legal personal representative of the reversionary beneficiary; and
the capital value of the market linked pension, and the income from it, cannot be used as security for a borrowing.
Terms and conditions mentioned in subregulation (3A) are not prevented from meeting the standards of that subregulation by reason only that the terms or conditions provide that, if the commencement day of the pension is on or after 1 June in a financial year, no payment is required to be made for that financial year.
Despite section 7 of the Income Tax Assessment (1936 Act) Regulations 2025, for a pension that has a commencement day on or after 20 September 2004 and on or before 31 December 2004, one of the following life tables are to be used in ascertaining the life expectancy of a person under this regulation:
the most recently published Australian Life Tables;
the 1995‑97 Australian Life Tables.
Terms and conditions for the provision of a benefit (the pension) meet the standards of this subregulation if the terms and conditions ensure that payment of the pension is made at least annually, and also ensure that:
the total of payments in any year (excluding payments by way of commutation but including payments under a payment split) is at least the amount calculated under clause 1 of Schedule 5; and
the pension is transferable only on the death of the beneficiary (primary or reversionary, as the case may be); and
the capital value of the pension and the income from it cannot be used as a security for a borrowing.
Terms and conditions of an RSA do not meet the standards of any of subregulations (2), (3A) or (3D) if, in relation to the death of the beneficiary on or after 1 July 2007, the pension is transferred or paid to a person who would not be eligible to be paid a benefit in the form of a pension under subregulation 4.24(3A) or (3B).
A benefit that is a pension provided under an RSA does not cease to be a pension for the purposes of the Act if the terms and conditions of the RSA do not meet the standards of subregulation (2) merely because of a payment split in respect of the RSA and any reasonable fees associated with the payment split.
In this regulation:
rolled over means paid as a superannuation lump sum within the superannuation system.
This regulation applies in relation to the terms and conditions of an RSA mentioned in paragraph 1.07(3A)(d) for a market linked pension.
The terms and conditions meet the standards of this regulation if they ensure that the pension cannot be commuted, in whole or in part, unless:
the commutation results from the death of a pensioner or a reversionary pensioner; or
the sole purpose of the commutation is:
to pay a superannuation contributions surcharge; or
to give effect to an entitlement of a non‑member spouse under a payment split; or
to meet the rights of a client to return a financial product under Division 5 of Part 7.9 of the Corporations Act 2001; or
to comply with section 136‑80 in Schedule 1 to the Taxation Administration Act 1953; or
for a commutation in part—the account balance of the pension, immediately after the commutation in part, would be equal to or would exceed the total payment amount calculated in accordance with Schedule 4, as reduced by the amount of payments (excluding amounts paid by way of commutation) to the RSA holder already made in the financial year in which the commutation in part would occur; or
the pension has paid, in the financial year in which the commutation is to take place, at least the minimum amount under subregulation (3); or
for the purpose of paying an amount 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, to give effect to a release authority in respect of the primary beneficiary.
For paragraph (2)(c), the minimum amount is calculated using the formula:
where:
annual amount for the financial year means the amount worked out in accordance with Schedule 4 for the pension, rounded to the nearest 10 whole dollars.
days in payment period means the number of days in the period that:
starts on:
if the pension commenced in the financial year in which the commutation is to take place—the commencement day; or
in any other case—1 July in that financial year; and
ends at the end of the day on which the commutation is to take place.
days in financial year means the number of days in the financial year in which the commutation is to take place.
In this regulation:
rolled over means paid as a superannuation lump sum within the superannuation system.
For the purposes of subparagraph 1.07(3A)(e)(iva), this regulation applies to a commutation of a benefit if:
the commutation occurs during the 5 years beginning on the day this regulation commences; and
the whole of the benefit is commuted.
For paragraph 1.07(1)(c), a benefit meets the standards of this regulation if, under the applicable terms or conditions of the RSA, the pension cannot be commuted, in whole or in part, except in the following circumstances:
the commutation results from the death of the pensioner or a reversionary pensioner;
the sole purpose of the commutation is:
to pay a superannuation contributions surcharge; or
to give effect to an entitlement of a non‑member spouse under a payment split; or
to meet the rights of a client to return a financial product under Division 5 of Part 7.9 of the Corporations Act 2001;
for a commutation in part—the account balance of the pension, immediately after the commutation, is equal to or greater than the minimum payment amount calculated in accordance with Schedule 5, as reduced by the amount of payments (excluding amounts paid by way of commutation) to the pensioner already made in the financial year in which the commutation occurs;
the pension has paid, in the financial year in which the commutation takes place, at least the minimum amount prescribed by subregulation (2).
For paragraph (1)(d), the minimum amount is the amount calculated using the formula:
Start formula Minimum annual amount times start fraction Days in payment period over Days in financial year end fraction end formula
where:
minimum annual amount means the minimum amount payable under the pension, in the financial year, calculated in accordance with Schedule 5.
days in payment period means the number of days in the period that:
begins on:
if the pension commenced in the financial year in which the commutation is to take place—the commencement day; or
otherwise—1 July in that financial year; and
ends on the day on which the commutation is to take place.
days in financial year means the number of days in the financial year (365 or 366) in which the commutation takes place.
For paragraph 20A(3)(a) of the Act, the following matters are to be taken into account in determining whether 2 persons have an interdependency relationship, or had an interdependency relationship immediately before the death of 1 of the persons:
all of the circumstances of the relationship between the persons, including (where relevant):
the duration of the relationship; and
whether or not a sexual relationship exists; and
the ownership, use and acquisition of property; and
the degree of mutual commitment to a shared life; and
the care and support of children; and
the reputation and public aspects of the relationship; and
the degree of emotional support; and
the extent to which the relationship is one of mere convenience; and
any evidence suggesting that the parties intend the relationship to be permanent;
the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was, in an interdependency relationship with the other person.
For paragraph 20A(3)(b) of the Act, 2 persons have an interdependency relationship if:
they satisfy the requirements of paragraphs 20A(1)(a) to (c) of the Act; and
one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship, rather than by a mere friend or flatmate.
Examples of care normally provided in a close personal relationship rather than by a friend or flatmate
1. Significant care provided for the other person when he or she is unwell.
2. Significant care provided for the other person when he or she is suffering emotionally.
For paragraph 20A(3)(b) of the Act, 2 persons have an interdependency relationship if:
they have a close personal relationship; and
they do not satisfy the other requirements set out in subsection 20A(1) of the Act; and
the reason they do not satisfy the other requirements is that they are temporarily living apart.
Example for paragraph (3)(c)
One of the persons is temporarily working overseas or is in gaol.
For paragraph 20A(3)(b) of the Act, 2 persons have an interdependency relationship if:
they have a close personal relationship; and
they do not satisfy the other requirements set out in subsection 20A(1) of the Act; and
the reason they do not satisfy the other requirements is that either or both of them suffer from a disability.
For paragraph 20A(3)(b) of the Act, 2 persons do not have an interdependency relationship if 1 of them provides domestic support and personal care to the other:
under an employment contract or a contract for services; or
on behalf of another person or organisation such as a government agency, a body corporate or a benevolent or charitable organisation.
This Division applies to and in relation to an RSA only if, under section 1440 of the Corporations Act 2001, Divisions 4 and 5 of Part 5 of the Act (as in force immediately before the FSR commencement) continue to apply to and in relation to the RSA.
Regulation 7.9.89 of the Corporations Regulations 2001 requires an RSA provider that is a product issuer to provide information to a non‑member spouse in relation to an RSA issued under a payment split.
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