Commonwealth Consolidated Regulations

RETIREMENT SAVINGS ACCOUNTS REGULATIONS 1997 - REG 3.06

         (1)    S ubject to this regulation , contributions to an RSA are taken to be mandated employer contributions.

         (2)   If:

                (a)    at least 1 year has elapsed since the RSA provider received the contributions in respect of the RSA; and

               (b)    the RSA provider:

                          (i)    is satisfied that the contributions are not in fact mandated employer contributions; and

                         (ii)    decides not to continue to treat the contributions as mandated employer contributions;

subregulation (1) ceases to apply to the contributions.

         (3)   If:

                (a)    less than 1 year has elapsed since the RSA provider received the contributions in respect of the RSA; and

               (b)    the RSA provider is satisfied that the contributions are not in fact mandated employer contributions;

subregulation (1) ceases to apply to the contributions.

         (4)   The RSA provider has power to make a decision of the kind mentioned in subparagraph 2 (b) (ii) despite anything in the terms and conditions of the RSA.

Example of the application of this regulation :

An RSA provider may receive a non‑mandated employer contribution from an employer that the RSA provider does not know is a non‑mandated employer contribution (ie, a contribution not made in satisfaction of the employer's superannuation guarantee or award obligation).

On acceptance, the contribution will be taken to be a mandated employer contribution.

From this point, one of three circumstances may apply:

(a)     the RSA provider may become aware in the first year after the contribution was received that the contribution is a non‑mandated employer contribution, and, if this is the case, the RSA provider must treat the contribution as a non‑mandated employer contribution; or

(b)     the RSA provider may become aware more than a year after the contribution was received that the contribution is a non‑mandated employer contribution, and, if this is the case, the RSA provider may continue to treat the contribution as a mandated employer contribution instead of making corrections to reflect the change; or

(c)     the RSA provider may never become aware that the contribution is a non‑mandated employer contribution, and, if this is the case, the contribution will always be taken to be a mandated employer contribution.