Superannuation Regulation 2022

This Regulation is the Superannuation Regulation 2022.

This Regulation commences on the day on which it is published on the NSW legislation website.

Note—

This Regulation repeals and replaces the Superannuation Regulation 2016, which would otherwise be repealed on 1 September 2022 by the Subordinate Legislation Act 1989, section 10(2).

In this Regulation—

additional surcharge amount means the amount of superannuation contributions surcharge assessed to be payable by a post-payment surcharge assessment notice.

approved valuation method, for Part 3—see section 11.

contributor—

for Part 3—see section 11, and

otherwise—has the same meaning as in the Act.

Commissioner of Taxation means the person holding office for the time being as the Commissioner of Taxation under a law of the Commonwealth.

deferred benefit, for Part 3—see section 11.

post-payment surcharge assessment notice means a notice that—

is a notice of assessment of superannuation contributions surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997 of the Commonwealth in relation to the employer contributions paid to the Fund on behalf of a former contributor, and

is received on or after 25 June 2004 by the former contributor after a benefit has commenced to be paid, or has been paid, to the former contributor.

surcharge debt account has the same meaning as in the Act, section 61RA.

surcharge deduction cap, in relation to a former contributor, means the maximum surcharge deduction amount that may be determined by STC under the Act, section 61RA(1C) in relation to a benefit payable to the former contributor.

the Act means the Superannuation Act 1916.

total surcharge amount, in relation to a former contributor, means the sum of—

the total amount of superannuation contributions surcharge that has been assessed to be payable in relation to employer contributions paid to the Fund on the contributor’s behalf up to and including the date on which the former contributor receives a post-payment surcharge assessment notice, and

the amount, if any, of general interest charged in relation to the additional surcharge amount payable under the notice, and

the amount of interest, if any, payable in relation to the surcharge debt account kept in relation to the former contributor.

Note—

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

The benefits under the following provisions of the Act may be the subject of a reduction under this Division—

section 27,

section 28A,

section 28AA,

section 29,

section 30,

section 37,

section 37A,

section 37B,

section 38A,

section 47D,

Part 4, Division 3A,

Part 4, Division 3B,

Part 4, Division 3D.

This section applies to the reduction of benefits payable to, or in relation to, a contributor or former contributor to whom a benefit (an early release benefit) has been released under—

section 61RF, or

section 61RG.

If an early release benefit is released to a former contributor who has provided for a benefit under the Act, Part 4, Division 3A or 3B, or had a benefit preserved under the Act—

STC must, on and from the date of release—

calculate the amount of the benefit provided for or preserved, for both a pension and lump sum, and

reduce the amount of the benefit provided for or preserved by the amount of the early release benefit, and

when the benefit provided for or preserved is payable, the amount of the benefit must be reduced by the amount of the early release benefit.

If subsection (2) does not apply, STC must—

create a debt account in the Fund in relation to the contributor, and

when a benefit is payable, reduce the benefit that is payable by the amount debited to the debt account at the time the benefit is payable.

Despite subsection (3), if a benefit is deferred or preserved under the Act after the release of an early release benefit and before a benefit is otherwise payable to the contributor—

STC must, on and from the date the benefit is deferred or preserved—

calculate the amount of benefit deferred or preserved, for both a pension and lump sum, and

reduce the amount of the benefit deferred or preserved by the amount debited to the debt account at the time the benefit is deferred or preserved, and

when the deferred or preserved benefit is payable, the amount of the benefit must be reduced by the amount debited to the debt account at the time the benefit was deferred or preserved.

For subsections (3) and (4), the amount debited to the debt account must be the sum of—

the amount of all early release benefits released to the contributor, and

interest on the amount at a rate determined by STC.

STC may obtain actuarial advice for the purpose of determining the amount of a reduced benefit.

For subsections (2) and (4), STC may determine which component or components of a benefit are to be reduced.

To avoid doubt, this section does not apply to reduce an early release benefit payable under the Act, section 61RF or 61RG.

Before releasing a benefit under the Act, section 61RF or 61RG, STC must obtain the written consent of the contributor or former contributor to the reduction of future benefits as a consequence of the early release.

This section applies if a benefit that is to be reduced under section 5 may be taken in the form of a pension.

STC may, at its discretion and with the consent of the person to whom the pension is payable, commute part of the pension to a lump sum for the purposes of the payment to STC of the amount of the reduction.

Commutation of part of the pension—

does not affect other rights that the person has to commute the pension under the Act, and

must not be taken into account for the purpose of determining whether, and to what extent, another right may be exercised, and

must be done on a basis determined by STC.

STC may obtain actuarial advice for the purpose of determining the basis on which part of a pension is to be commuted under this section.

STC may, at the request of a former contributor—

adjust the amount of a benefit payable to the former contributor by reducing the benefit by an amount (the reduction amount) that is equivalent to the lesser of—

the additional surcharge amount, and

an amount, not being less than nil, equal to the amount of the surcharge deduction cap less any previously met surcharge liability, and

pay an amount equal to the reduction amount to the former contributor or the Commissioner of Taxation.

The previously met surcharge liability is the sum of—

all amounts paid by the former contributor to STC or the Commissioner of Taxation in relation to the total surcharge amount of the former contributor, and

all amounts in relation to which adjustments relating to the benefit of the former contributor have previously been made under this section or the Act in relation to the superannuation contributions surcharge.

STC may, for the purposes of determining an adjustment under this section, obtain—

actuarial advice, or

other advice, as STC thinks fit.

This section does not authorise STC to pay an amount that would result in payments made to or on behalf of the former contributor being greater than the total benefits to which the former contributor is entitled.

This section does not authorise STC to pay an amount of general interest charged in relation to an additional surcharge amount payable under a post-payment surcharge assessment notice unless—

the request for the payment is made by the former contributor, and

the request is made within a reasonable period after receiving the notice, as determined by STC.

Note—

Sections 18 and 19 also relate to the superannuation contributions surcharge.

For the Act, section 61RC(1)(d), the benefits provided under the following provisions of the Act are prescribed—

section 27,

section 28A,

section 28AA,

section 29,

section 30,

section 37,

section 37A,

section 37B,

section 38A,

section 47D,

Part 4, Division 3A,

Part 4, Division 3B,

Part 4, Division 3D.

STC must create a debt account in the Fund in relation to each contributor or former contributor in relation to whom a benefit is liable to be reduced under the Act, section 61RC.

STC must have regard to the debt account when determining the amount of the reduced benefit.

Note—

Under the Act, section 61RC(3), the amount of the reduced benefit is to be determined by STC after obtaining actuarial advice.

STC must at least once a year—

provide each contributor and former contributor with a statement as to the balance of the debt account created by STC in relation to the contributor or former contributor, and

if a tax file number has not been previously provided to STC for a contributor or former contributor—request that the contributor or former contributor provide a tax file number to STC.

In this Part—

approved valuation method means the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, Schedule 2, Part 8 made under the Family Law (Superannuation) Regulations 2001 of the Commonwealth.

contributor includes a former contributor.

deferred benefit means a benefit under the Act, section 37B.

Words and expressions used in this Part have the same meaning as they have in the Act, Part 4A.

This section applies for the purposes of—

the Act, Part 4A, and

the family law superannuation legislation.

The value of a contributor spouse’s superannuation interest, other than in relation to a deferred benefit, must be determined in accordance with the approved valuation method.

The value of a superannuation interest relating to a deferred benefit must be determined in accordance with the Family Law (Superannuation) Regulations 2001 of the Commonwealth, Schedule 2, Part 7.