Commonwealth Numbered Acts

TAXATION LAWS AMENDMENT ACT (No. 2) 1989No. 97, 1989 - SCHEDULE 2

SCHEDULE 2
Section 16
AMENDMENT OF OTHER ACTS IN CONNECTION WITH THE AMENDMENTS OF THE INCOME TAX 
ASSESSMENT ACT 1936 RELATING TO SUPERANNUATION BUSINESS AND RELATED BUSINESS
Fringe Benefits Tax Assessment Act 1986 Subsection 136 (1) (subparagraph (k)
(i) of the definition of "fringe benefit"):
Insert ", (iiia)" after "(iii)". Subsection 136 (1) (subparagraph (k) (ii) of
the definition of "fringe benefit"):
Insert "or (iiia)" after "(a) (iii)". Subsection 136 (1) (paragraph (a) of the
definition of "superannuation fund"):
Omit the paragraph, substitute the following paragraph:

"(a) an eligible superannuation fund within the meaning of Part IX of the
Income Tax Assessment Act 1936; or".
Occupational Superannuation Standards Act 1987 Title:
Omit "and approved deposit funds", substitute ", approved deposit funds and
pooled superannuation trusts". Subsection 3 (1) (definitions of "protected
document" and "protected information"):
Omit "or approved deposit fund", substitute ", approved deposit fund or pooled
superannuation trust". Subsection 3 (1) (definition of "year of income"):
Insert "or unit trust" after "fund" (wherever occurring). Subsection 3 (1)
(definition of "reviewable decision"):
Omit the definition, substitute the following definition:

" 'reviewable decision' means:

   (a)  a decision of the Commissioner to give a notice in relation to a fund
        under section 12, 13, 14 or 15 stating that the Commissioner is not
        satisfied that the fund complied with the superannuation fund
        conditions or the approved deposit fund conditions, as the case may
        be, in relation to a year of income; or (b) a decision of the
        Commissioner to give a notice in relation to a unit trust under
        section 15B or 15C stating that the Commissioner is not satisfied that
        the unit trust complied with the pooled superannuation trust
        conditions in relation to a year of income;". Subsection 3 (1)
        (definition of "fund affected by a reviewable decision"):
Omit the definition. Subsection 3 (1):
Insert the following definitions:

" 'fund or unit trust affected by a reviewable decision', in relation to a
reviewable decision, means the fund or unit trust in relation to which the
decision was made;
'pooled superannuation trust' means a unit trust that, under the regulations,
is a unit trust to which this definition applies;
'trustee', in relation to a fund, has the same meaning as in Part IX of the
Tax Act;
'unit trust' has the same meaning as in Part IX of the Tax Act;". After
section 3:
Insert the following section: Crown to be bound

"3A. (1) This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Northern Territory and of Norfolk Island.

"(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a
State, of the Northern Territory or of Norfolk Island liable to be prosecuted
for an offence.". Section 4:
Add at the end the following subsection:

"(5) Where any of the first regulations made for the purposes of the
definition of 'pooled superannuation trust' in subsection 3 (1) or for the
purposes of subsection 8A (1) specify a day (not being a day before 1 July
1988) before the date of notification of the regulations in the Gazette as the
day on which specified regulations are to be taken to have come into
operation, those regulations shall be taken to have come into operation on the
day so specified.". After section 6:
Insert the following section: Satisfaction of pooled superannuation trust
conditions

"6A. A reference in this Act to a unit trust satisfying the pooled
superannuation trust conditions in relation to a year of income is a reference
to the following conditions being satisfied in relation to the unit trust in
relation to the year of income:

   (a)  the unit trust was a pooled superannuation trust:

        (i)    if part of the year of income occurred before 1 July 1988-at
               all times during so much of the year of income as occurred on
               or after 1 July 1988 when the unit trust was in existence; or

        (ii)   in any other case-at all times during the year of income when
               the unit trust was in existence;

   (b)  at all times during the year of income when the unit trust was in
        existence and there were in force regulations for the purposes of
        subsection 8A (1) prescribing standards applicable to the unit trust,
        the unit trust complied with those standards;

   (c)  the trustees of the unit trust complied with:

        (i)    any requirement made in relation to the unit trust during the
               year of income by or under subsection 10 (1AA) or section 11;
               and

        (ii)   any requirement made in relation to the unit trust in relation
               to the year of income under subsection 10 (2).". Heading to
               Part II:
Omit "AND APPROVED DEPOSIT FUNDS", substitute ", APPROVED DEPOSIT FUNDS AND
POOLED SUPERANNUATION TRUSTS". Subsection 7 (3):
Omit "section 23FC, 121CC or 121D of". Subsection 8 (3):
Omit "section 23FD or 121DAAA of". After section 8:
Insert the following section: Operating standards for pooled superannuation
trusts

"8A. (1) The regulations may prescribe standards applicable to the operation
of pooled superannuation trusts.

"(2) The standards that may be prescribed include, but are not limited to,
standards relating to the following matters:

   (a)  the ownership and disposal of units in pooled superannuation trusts;

   (b)  the investment of assets of pooled superannuation trusts;

   (c)  the persons who may be trustees of pooled superannuation trusts;

   (d)  the number of trustees, and the composition of boards or committees of
        trustees, of pooled superannuation trusts;

   (e)  the keeping and retention of records in relation to pooled
        superannuation trusts;

   (f)  the financial and actuarial reports to be prepared in relation to
        pooled superannuation trusts;

   (g)  the disclosure of information to unitholders in pooled superannuation
        trusts;

   (h)  the matters required, permitted or not permitted to be included, from
        time to time, in the trust deeds of pooled superannuation trusts.

"(3) Nothing in the Tax Act limits the standards that may be prescribed.".
After subsection 10 (1):
Insert the following subsection:

"(1AA) The trustees of a pooled superannuation trust established after the
commencement of this subsection shall, within the prescribed period after
establishment, give to the Commissioner the prescribed information.".
Subsection 10 (1A):
Add at the end "or (1AA)". Subsections 10 (2) and 11 (2):
Omit "or an approved deposit fund", substitute ", an approved deposit fund or
a pooled superannuation trust". Subsection 11 (2):
Add at the end "or trust". Subsections 11 (3) and (4):
Insert "or trust" after "fund" (wherever occurring). After section 15A:
Insert the following sections: Notices as to satisfaction of the pooled
superannuation trust conditions

"15B. (1) Where:

   (a)  after the end of a year of income of a unit trust, the trustees of the
        unit trust give to the Commissioner, in relation to the year of
        income:

        (i)    a return, in a form approved by the Commissioner, in writing,
               for the purposes of this section, providing such information
               relating to the unit trust and to the unit trust's satisfaction
               of the pooled superannuation trust conditions during the year
               of income as is required by the form to be provided;

        (ii)   a certificate by the trustees of the unit trust, in the
               prescribed form;

        (iii)  a certificate by an approved auditor, in the prescribed form;
               and

        (iv)   the prescribed application fee; and

   (b)  either:

        (i)    the return, certificates and fee referred to in paragraph (a)
               are received by the Commissioner on or before the day specified
               in the form of return as the day by which the return is to be
               given to the Commissioner; or

        (ii)   the return, certificates and fee referred to in that paragraph
               are received by the Commissioner, but are not all received
               until after the day referred to in subparagraph (i), and any
               prescribed late lodgment fee has also been received by the
               Commissioner; subsection (3) applies in relation to the unit
               trust in relation to the year of income.

"(2) A certificate referred to in subparagraph (1) (a) (ii) or (iii) may be
endorsed on a return referred to in subparagraph (1) (a) (i).

"(3) Where this subsection applies in relation to a unit trust in relation to
a year of income, the Commissioner shall, subject to subsection (6), give
notice in writing to the trustees of the unit trust stating whether the
Commissioner is satisfied that the unit trust satisfied the pooled
superannuation trust conditions in relation to the year of income, having
regard to:

   (a)  the return and certificates given under subsection (1); and

   (b)  any other information available to the Commissioner.

"(4) If:

   (a)  the Commissioner has, under this section or section 15C, given a
        notice to the trustees of a unit trust stating that the Commissioner
        is not satisfied that the unit trust satisfied the pooled
        superannuation trust conditions in relation to a year of income of the
        unit trust; and

   (b)  the Commissioner, after considering information that was not
        previously considered by the Commissioner, becomes satisfied that the
        unit trust so satisfied the pooled superannuation trust conditions;
        the Commissioner shall give notice in writing to the trustees of the
        unit trust revoking the notice referred to in paragraph (a) and
        stating that the Commissioner is satisfied that the unit trust
        satisfied the pooled superannuation trust conditions in relation to
        the year of income.

"(5) If:

   (a)  the Commissioner has, under this section, given a notice to the
        trustees of a unit trust stating that the Commissioner is satisfied
        that the unit trust satisfied the pooled superannuation trust
        conditions in relation to a year of income of the unit trust; and

   (b)  the Commissioner, after considering information that was not
        previously considered by the Commissioner, ceases to be satisfied that
        the unit trust so satisfied the pooled superannuation trust
        conditions; the Commissioner shall, subject to subsection (6), give
        notice in writing to the trustees of the unit trust revoking the
        notice referred to in paragraph (a) and stating that the Commissioner
        is not satisfied that the unit trust satisfied the pooled
        superannuation trust conditions in relation to the year of income.

"(6) Where:

   (a)  but for this subsection, the Commissioner would be required to give a
        notice stating that the Commissioner is not satisfied that a unit
        trust satisfied the pooled superannuation trust conditions in relation
        to a year of income; and

   (b)  the Commissioner decides to give a notice under subsection 15C (1)
        stating that the Commissioner is satisfied that the unit trust should
        be treated as if it had satisfied the pooled superannuation trust
        conditions in relation to the year of income; the Commissioner is not
        required to give the notice referred to in paragraph (a).

"(7) A notice under this section stating that the Commissioner is not
satisfied that a unit trust satisfied the pooled superannuation trust
conditions in relation to a year of income shall set out the reasons why the
Commissioner is not so satisfied.

"(8) The Commissioner shall advise the Commissioner of Taxation of particulars
of all notices given under this section. Discretion to treat unit trusts as
satisfying the pooled superannuation trust conditions

"15C. (1) Where, in relation to a unit trust in relation to a year of income
of the unit trust:

   (a)  the trustees of the unit trust have not given the Commissioner the
        return, certificates and fee or fees referred to in subsection 15B
        (1), or the trustees of the unit trust have given the Commissioner the
        return, certificates and fee or fees referred to in that subsection
        but the Commissioner is not satisfied that the unit trust satisfied
        the pooled superannuation trust conditions; and

   (b)  the trustees of the unit trust satisfy the Commissioner that, because
        of special circumstances that existed in relation to the unit trust
        during the year of income, it would be reasonable for the unit trust
        to be treated as if it had satisfied the pooled superannuation trust
        conditions; the Commissioner shall give notice in writing to the
        trustees of the unit trust stating that the Commissioner is satisfied
        that the unit trust should be treated as if it had satisfied the
        pooled superannuation trust conditions in relation to the year of
        income.

"(2) If:

   (a)  the Commissioner has given a notice under subsection (1) in relation
        to a unit trust in relation to a year of income of the unit trust; and

   (b)  the Commissioner, after considering information that was not
        previously considered by the Commissioner, becomes satisfied that the
        unit trust should not be treated as if it had satisfied the pooled
        superannuation trust conditions in relation to the year of income; the
        Commissioner shall give notice in writing to the trustees of the unit
        trust revoking the notice referred to in paragraph (a) and stating
        that the Commissioner is not satisfied that the unit trust satisfied
        the pooled superannuation trust conditions in relation to the year of
        income.

"(3) A notice under this section stating that the Commissioner is not
satisfied that a unit trust satisfied the pooled superannuation trust
conditions in relation to a year of income shall set out the reasons why the
Commissioner is not so satisfied.

"(4) The Commissioner shall advise the Commissioner of Taxation of particulars
of all notices given under this section.". Subsection 16 (1):
Insert "or unit trust" after "fund" (wherever occurring). Subsections 17 (1)
and (2):
Insert "or unit trust" after "fund". Subsection 19 (1):
Omit "and approved deposit funds", substitute ", approved deposit funds and
pooled superannuation trusts". Subsection 19 (2):
Omit "or approved deposit fund", substitute ", approved deposit fund or pooled
superannuation trust". Subsection 19 (2):
Add at the end "or trust, as the case requires". Subsection 42 (5):
Omit "Income", substitute "Subject to subsection (5C), income". Subsection 42
(5A):
Omit "subsection (5B)", substitute "subsections (5B) and (5C)". After
subsection 42 (5B):
Insert the following subsection:

"(5C) Subsections (5) and (5A) do not apply to taxation the liability to which
arises under the Income Tax Assessment Act 1936.".
Taxation Administration Act 1953 Subsection 8W (1A):
Omit "or 15", substitute ", 15, 15B or 15C".
NOTE ABOUT SECTION HEADING
On the day on which the Taxation Laws Amendment Act (No. 2) 1989 receives the
Royal Assent, the heading to section 26AFB of the Income Tax Assessment Act 
1936 is altered by inserting "Part IX or former" before "section 23FC".