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INCOME TAX ASSESSMENT ACT 1936 - SECT 26AF Assessable income to include value of benefits received from or in connection with former paragraph 23(ja) funds or former section 23FB funds

INCOME TAX ASSESSMENT ACT 1936 - SECT 26AF

Assessable income to include value of benefits received from or in connection with former paragraph 23(ja) funds or former section 23FB funds

  (1)   Where:

  (a)   in a year of income and after 19   August 1980, a taxpayer receives or obtains a benefit of any kind out of, or attributable to assets of, a paragraph   23(ja) fund or a section   23FB fund;

  (aa)   if the fund is an exempt fund within the meaning of section   26AFB (as in force just before the commencement of Schedule   1 to the Superannuation Legislation Amendment (Simplification) Act 2007 )--the benefit was received or obtained by the taxpayer before the proclaimed superannuation standards day;

  (b)   the benefit is received or obtained otherwise than in accordance with approved terms and conditions applicable to the fund at the time when the benefit is received or obtained; and

  (c)   the Commissioner is satisfied that the taxpayer received or obtained the benefit:

  (i)   by reason that the taxpayer was, or had been, a member of the fund;

  (ii)   by reason that the taxpayer was, or had been, a dependant of a person who was, or had been, a member of the fund; or

  (iii)   by reason that the taxpayer was, or had been, associated with a person who was, or had been, a member of the fund;

the assessable income of the taxpayer of the year of income shall include the amount or value of that benefit.

  (2)   Where, in a year of income and after 19   August 1980, a taxpayer receives valuable consideration in respect of the transfer by the taxpayer to another person (whether by assignment, by declaration of trust or by any other means) of a right (whether vested or contingent) to receive a benefit from a fund, being a paragraph   23(ja) fund or a section   23FB fund and not being an exempt fund within the meaning of section   26AFB (as in force just before the commencement of Schedule   1 to the Superannuation Legislation Amendment (Simplification) Act 2007 ), the assessable income of the taxpayer of the year of income shall include the amount or value of that consideration.

  (3)   In this section:

"approved terms and conditions" , in relation to a fund, means:

  (a)   in the case of a paragraph   23(ja) fund--terms and conditions approved by the Commissioner under subparagraph   23(ja)(ii) as in force at any time before the commencement of section   1 of the Taxation Laws Amendment Act (No.   4) 1987 ; or

  (b)   in the case of a section   23FB fund--terms and conditions approved by the Commissioner under subsection   23FB(2) as in force at any time before the commencement of section   1 of the Taxation Laws Amendment Act (No.   4) 1987 .

"paragraph"   23(ja) fund means a fund the income of which of any year of income is or has been exempt from tax by virtue of paragraph   23(ja) as in force at any time before the commencement of section   1 of the Taxation Laws Amendment Act (No.   4) 1987 or would, but for the provisions of section   121C as in force at any time before the commencement of section   21 of the Taxation Laws Amendment Act 1985 and Division   9C, be, or have been, exempt from tax by virtue of that paragraph;

"section"   23FB fund means:

  (a)   a fund the income of which of any year of income is or has been exempt from tax by virtue of section   23FB as in force at any time before the commencement of section   1 of the Taxation Laws Amendment Act (No.   4) 1987 or would, but for the provisions of Division   9C, be, or have been, exempt from tax by virtue of that section; and

  (b)   a fund that was a section   79 fund for the purposes of this section as in force at any time before the commencement of the Income Tax Assessment Amendment Act (No.   3) 1984 .

  (4)   For the purposes of this section, where either of the following paragraphs applies in relation to an exempt fund within the meaning of section   26AFB of this Act (as in force just before the commencement of Schedule   1 to the Superannuation Legislation Amendment (Simplification) Act 2007 ) in relation to the year of income of the fund commencing on 1   July 1986 or a subsequent year of income:

  (a)   the year of income ended before the proclaimed superannuation standards day and the income of the fund of the year of income would, but for the amendments made by the   Taxation Laws Amendment Act (No.   4) 1987 , have been exempt from tax under paragraph   23(ja) or section   23FB of this Act, as in force at any time before the commencement of section   1 of that Act;

  (b)   the proclaimed superannuation standards day occurred during the year of income and, if the year of income had ended on the proclaimed superannuation standards day, the income of the fund of the year of income would have been exempt from tax under paragraph   23(ja) or section   23FB of this Act, as in force at any time before the commencement of section   1 of that Act;

paragraph   23(ja) or section   23FB of this Act, as in force immediately before the commencement of section   1 of that Act, shall be taken to have continued to apply in relation to the fund in relation to the year of income of the fund.

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