Superannuation Alert - 08.07.2015
Financial Services eBulletin - 8 July 2015
The Lander & Rogers Superannuation Alert is a brief overview of new developments in the superannuation industry.
On 29 June 2015, the ASIC Corporations (AFSL Audit Opinion) Instrument 2015/586 was registered. The Explanatory Statement to the instrument outlines that the instrument "makes the consequential amendment to regulation 7.8.13 [of the Corporations Regulations 2001] that was missed when Division 4A was inserted in Part 7.8" of the Corporations Act 2001 (Act). The Explanatory Statement notes that the instrument "ensures that [an Australian Financial Services] licensee provide[s] ASIC with an auditor's opinion on the effectiveness of the internal controls used by the licensee to comply with Division 4A as is required for Divisions 2, 3, 4, 5 and 6 of Part 7.8 of the Act".
On 1 and 2 July 2015, ASIC released the following updated ASIC Regulatory Guides.
- RG 1 - AFS Licensing Kit: Part 1 - Applying for and varying an AFS licence
- RG 2 - AFS Licensing Kit: Part 2 - Preparing your AFS licence application
- RG 3 - AFS Licensing Kit: Part 3 - Preparing your additional proofs
- RG 104 - Licensing: Meeting the general obligations
- RG 165 - Licensing: Internal and external dispute resolution
- RG 166 - Licensing: Financial requirements
On 2 July the UK HM Revenue & Customs Office published a revised List of Recognised Overseas Pension Schemes, which contains only one Australian scheme.
On 3 July 2015, the ATO issued the following interpretative decisions:
- ATO ID 2015/18 Superannuation Guarantee Scheme: Benefit Certificates - This decision provides that an employee "must be included in a class of employees specified in a benefit certificate for contributions made by an employer on behalf of that employee to the defined benefit superannuation scheme", for the employer to be able to use that scheme to satisfy its obligations for that employee under the Superannuation Guarantee (Administration) Act 1992; and
- ATO ID 2015/19 Disability superannuation benefit: medical certificates - This decision provides that medical certificates supplied by a member in relation to a particular superannuation lump sum can satisfy the certification requirements of section 995-1(1)(b) of the Income Tax Assessment Act 1997 in relation to later superannuation lump sums paid to the member by the same superannuation fund.
On 6 July 2015, the NSW Supreme Court handed down a decision in Beck v Colonial Staff Super Pty Ltd & Ors  NSWSC 723. In this case the trustee exercised its powers to amend the trust deed by deleting one of its existing rules. In effect, this amendment ceased the provision of discretionary benefits for a member in the event of his or her early retirement before age 55 but after a long period of service. The plaintiff alleged that the trustee's exercise of power to amend the trust deed breached the trustee's duties under the general law, the Superannuation Industry (Supervision) Act 1993 (SIS Act) and Superannuation Industry (Supervision) Regulations 1994 (SIS Regulations). The Court upheld the plaintiff's claim and found, among other things, that:
- the power to amend the trust deed was invalidly exercised by the trustee;
- the trustee breached its general law duty and co-existing duty under section 52(2)(c) of the SIS Act to act in the best interests of the fund's beneficiaries, as the amendments disadvantaged certain members and the substitute benefits provided were inadequate;
- the trust deed amendments contravened regulation 13.16 of the SIS Regulations which prescribes standards relating to the preservation of benefits in funds; and
- the trustee (and any successor trustee) was stopped from acting upon the trust amendments in question.
On 6 July 2015, the Superannuation Supervisory Levy Imposition Determination 2015 was registered, which sets out the supervisory levy to be paid by superannuation entities for the 2015-16 financial year. More information about the effect of the determination is available from the Explanatory Statement to the determination.
Emilia Michael | Lawyer
+61 3 9269 9580
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.