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Instrument 2022 No. R7 Principles as made
This instrument specifies the circumstances in which certain income streams are fully or partially exempt from the assets test under the Veterans' Entitlements Act 1986, and provides that certain income streams which are 50% and 100% asset-test exempt retain that status where they have been commuted for particular tax, family law, or other purposes.
Administered by: Veterans' Affairs
Registered 29 Mar 2022
Tabling HistoryDate
Tabled HR30-Mar-2022
Tabled Senate26-Jul-2022

Commonwealth Coat of Arms

Veterans’ Entitlements (Retention of Exemption for Asset-test Exempt Income Streams) Principles 2022

 

Instrument 2022 No. R7

The REPATRIATION COMMISSION makes these Principles under subsections 52(1AA), 52(1AB) and 52(1AC) of the Veterans’ Entitlements Act 1986.

Dated                    23rd                                  March                                2022.

 

 

 

The Seal of the                        )  SEAL

Repatriation Commission        )

was affixed hereto in the        )

presence of:                             )

 

 

 

 

 

 

               ……………………………Liz Cosson……………………………

ELIZABETH COSSON

AM CSC

President

 

          ……………………………Don Spinks………………………………………………………………..……Gwen Cherne………..………

DONALD SPINKS

GWEN CHERNE

AM

 

Commissioner

Commissioner

 

           

 

 


Contents

Contents. i

Part 1  Preliminary. 1

1  Name. 1

2  Commencement 1

3  Authority. 1

4  Definitions. 1

5  Schedules. 2

6  Purpose. 2

Part 2  Asset‑test exempt income streams. 3

7  Principles. 3

8  Asset‑test exempt income stream resulting from original asset‑test exempt income stream purchased before 20 September 2004. 3

9  Asset‑test exempt income stream resulting from transfer to successor fund. 4

10  Asset‑test exempt income stream resulting from payment split 5

11  Asset‑test exempt income stream resulting from Family Court order or injunction  5

12  Asset‑test exempt income stream resulting from payment of superannuation contributions surcharge debt 6

13  Asset-test exempt income stream resulting from payment of excess contributions tax  7

14  Asset‑test exempt income stream resulting from payment of hardship amount 7

15  Commutation of asset‑test exempt income stream resulting from closure of a self managed superannuation fund. 8

16  Asset‑test exempt income stream resulting from commutation or rollover because of regulation 6.21 of Superannuation Industry (Supervision) Regulations 1994. 8

17  Asset-test exempt income stream that is family law affected income stream   9

18  Commutation of asset‑test exempt income stream resulting from the closure of a regulated superannuation fund or sub fund. 10

Part 3  Partially asset‑test exempt income streams. 11

19  Principles. 11

20  Partially asset‑test exempt income stream resulting from original partially asset‑test exempt income stream purchased on or after 20 September 2004 but before 20 September 2007  11

21  Partially asset‑test exempt income stream resulting from transfer to successor fund  12

22  Partially asset‑test exempt income stream resulting from payment split 13

23  Partially asset‑test exempt income stream resulting from Family Court order or injunction  13

24  Partially asset‑test exempt income stream resulting from payment of superannuation contributions surcharge debt 14

25  Partially asset-test exempt income stream resulting from payment of excess contributions tax  14

26  Partially asset‑test exempt income stream resulting from payment of hardship amount 15

27  Partially asset-test exempt market-linked income stream resulting from commutation of another partially asset-test exempt market-linked income stream.. 15

28  Commutation of partially asset‑test exempt income stream resulting from closure of a self managed superannuation fund. 16

29  Partially asset‑test income stream resulting from commutation or rollover because of regulation 6.21 of Superannuation Industry (Supervision) Regulations 1994. 17

30  Partially asset-test exempt income stream that is family law affected income stream   17

31  Commutation of partially asset‑test exempt income stream resulting from the closure of a regulated superannuation fund or sub fund. 18

 

Schedule 1—Repeals                                                                                                   19

 

Veterans’ Entitlements (Retention of exemption for asset-test exempt income streams) Principles 2011                                                                                          19

 

 

 

 


 


Part 1  Preliminary

1  Name

This instrument is the Veterans’ Entitlements (Retention of Exemption for Asset-test Exempt Income Streams) Principles 2022.

2  Commencement

(1)               Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.       The whole of this instrument

On the day after this instrument is registered

 

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2)               Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under subsections 52(1AA), 52(1AB) and 52(1AC) of the Veterans’ Entitlements Act 1986.

4  Definitions

Note:          A number of expressions used in this instrument are defined in the Act, including the following:

(a)      asset-test exempt income stream;

(b)     hardship amount;

(b)    income stream.

                   In this instrument:

2005 Principles means the Veterans’ Entitlements (Partially Asset‑test Exempt Income Stream — Exemption) Principles 2005 as made.

2007 Principles means the Veterans’ Entitlements (Retention of Exemption for Asset-test Exempt Income Streams) Principles 2007.

2011 Principles means the Veterans; Entitlements (Retention of exemption for asset-test exempt income streams) Principles 2011.

Act means the Veterans’ Entitlements Act 1986.

benefit fund has the meaning given by subsection 16B(1) of the Life Insurance Act 1995.

Commission has the same meaning as in section 5A of the Act.

defined benefit pension has the meaning given by regulation 9.04E of the Superannuation Industry (Supervision) Regulations 1994.

immediate annuity means an annuity that is presently payable.

life company has the meaning given in the Dictionary to the Life Insurance Act 1995.

payment split has the meaning given by section 90XD of the Family Law Act 1975.

regulated superannuation fund has the meaning given by subsection 10(1) of the Superannuation Industry (Supervision) Act 1993.

self managed superannuation fund has the meaning given by sections 17A and 17B of the Superannuation Industry (Supervision) Act 1993.

statutory fund has the meaning given by section 29 of the Life Insurance Act 1995.

sub-fund means a sub-fund within a regulated superannuation fund that is taken to be a regulated superannuation fund for the purposes of section 69A of the Superannuation Industry (Supervision) Act 1993.

successor fund has the meaning given by subregulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994.

third party has the meaning given by section 90AB of the Family Law Act 1975.

5  Schedules

                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

6  Purpose

                   These Principles specify:

                     (a)  under Part 2 — the criteria that exclude an asset-test exempt income stream from the class of partially asset‑test exempt income streams established by paragraph (a) of the definition of partially asset-test exempt income stream set out in subsection 52(1AA) of the Act; and

                     (b)  under Part 3 — the criteria to be satisfied by an income stream covered by paragraph (b) of that definition.

Note  Section 52 of the Act provides for certain assets to be disregarded in calculating the value of a person’s assets for the purposes of the assets test under the Act. Paragraph 52(1)(d) of the Act provides that the value of an asset‑test exempt income stream, other than a partially asset‑test exempt income stream, is to be disregarded for the purposes of that calculation. Paragraph 52(1)(da) of the Act provides that only half of the value of a partially asset‑test exempt income stream is to be disregarded for the purposes of the assets test under the Act.

Part 2  Asset‑test exempt income streams

7  Principles

                   For subparagraph (a)(iii) of the definition of partially asset‑test exempt income stream in subsection 52(1AA) of the Act, the Principles determined for the purposes of that subparagraph are the Principles set out in this Part.

Note  For the definition of asset‑test exempt income stream, see subsection 5JA(1) of the Act.

8  Asset‑test exempt income stream resulting from original asset‑test exempt income stream purchased before 20 September 2004

             (1)  These Principles cover an asset‑test exempt income stream if:

                     (a)  the income stream (the present income stream) is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased by the primary beneficiary on or after 20 September 2004 from funds arising from the commutation of another asset‑test exempt income stream (the original income stream); and

                     (c)  the original income stream was purchased before 20 September 2004; and

                     (d)  the original income stream is a kind of income stream to which one of the following subsections applies.

             (2)  This subsection applies to an original income stream if:

                     (a)  it is covered by subsection 5JA(1) or (1A) or section 5JB of the Act; and

                     (b)  it was purchased by the primary beneficiary for the benefit of the primary beneficiary and a reversionary beneficiary; and

                     (c)  payments made under the income stream are calculated on the basis of the life expectancy of the reversionary beneficiary; and

                     (d)  the reversionary beneficiary predeceases the primary beneficiary.

             (3)  This subsection applies to an original income stream if:

                     (a)  it is covered by subsection 5JA(1) or (1A) or section 5JB of the Act; and

                     (b)  it is not an income stream to which section 10 or 11 of these Principles applies; and

                     (c)  it is purchased by the primary beneficiary for the benefit of the primary beneficiary and a reversionary beneficiary who, at the time of the purchase, are members of a couple together; and

                     (d)  the primary beneficiary and reversionary beneficiary are no longer members of a couple together.

Example

On 1 March 2002, J purchased an income stream (the original income stream) covered by subsection 5JA(1) of the Act for the benefit of J, the primary beneficiary, and H, the reversionary beneficiary. At the time of the purchase, J and H were members of a couple together. On 1 December 2005, J and H ceased to be members of a couple together. On 15 December 2005, J commutes the original income stream and purchases another income stream (the new income stream) covered by subsection 5JA(1) of the Act. The new income stream is covered by these Principles and retains the 100% exemption from the assets test under the Act.

             (4)  This subsection applies to an original income stream if:

                     (a)  it is a defined benefit pension covered by section 5JA or 5JB of the Act that is provided by a regulated superannuation fund; and

                     (b)  it is an income stream in relation to which the Commission is not satisfied that the applicable requirements under paragraph 5JA(1)(b) or 5JB(1A)(b) of the Act, are met.

Example

On 1 March 2002, P purchased a 100% asset-test exempt income stream (the original income stream) that is a defined benefit pension covered by section 5JA of the Act that is provided by a regulated superannuation fund. Paragraph 5JA(1)(b) of the Act applies to the original income stream. On 1 September 2022, the Commission is not satisfied that the requirements of paragraph 5JA(1)(b) of the Act are met in relation to the original income stream. On 15 September 2022, P commutes the original income stream to purchase another income stream (the new income stream) that is covered by section 5JA of the Act. The new income stream is covered by these Principles and retains the 100% exemption from the assets test under the Act.

Note  Paragraphs 5JA(1)(b) and 5JB(1A)(b) of the Act require the Commission to be satisfied, in relation to an income stream, that there is in force a current actuarial certificate stating that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the income stream’s contract or governing rules.

             (5)  This subsection applies to an original income stream if:

                     (a)  it is an immediate annuity under a statutory fund established by a life company, or under a benefit fund; and

                     (b)  it:

                              (i)  is an income stream in relation to which the Commission is not satisfied that the applicable requirements under paragraph 5JA(1)(b) or 5JB(1A)(b) of the Act, are met; or

                             (ii)  fails to satisfy relevant standards published by the Australian Prudential Regulation Authority about minimum surrender values and paid up values.

Note  Paragraphs 5JA(1)(b) and 5JB(1A)(b) of the Act require the Commission to be satisfied, in relation to an income stream, that there is in force a current actuarial certificate stating that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the income stream’s contract or governing rules.

9  Asset‑test exempt income stream resulting from transfer to successor fund

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it results from the transfer, on or after 20 September 2004, of another income stream (the original income stream) to a successor fund; and

                     (c)  the original income stream was covered by section 5JA or 5JB of the Act; and

                     (d)  the original income stream was provided by a regulated superannuation fund; and

                     (e)  the original income stream:

                              (i)  was purchased before 20 September 2004; or

                             (ii)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                            (iii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iv)  until the commencement of these Principles, was covered by the 2011 Principles; or

                             (v)  was covered by these Principles.

10  Asset‑test exempt income stream resulting from payment split

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased or acquired by the primary beneficiary or the primary beneficiary’s partner or former partner on or after 20 September 2004; and

                     (c)  it results from another asset‑test exempt income stream (the original income stream) being commuted to give effect to an entitlement of the partner or former partner of the primary beneficiary in respect of the original income stream under a payment split under Part VIIIB of the Family Law Act 1975; and

                     (d)  the original income stream was covered by section 5JA or 5JB of the Act; and

                     (e)  the original income stream:

                              (i)  was purchased before 20 September 2004; or

                             (ii)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                            (iii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iv)  until the commencement of these Principles, was covered by the 2011 Principles; or

                             (v)  was covered by these Principles.

Example

On 1 March 2002, P, who was partnered to J at that date, purchased an income stream (the original income stream) covered by section 5JA of the Act. On 1 February 2023, P and J separate. P’s original income stream is commuted to give effect to an entitlement of J in respect of the original income stream under a payment split under Part VIIIB of the Family Law Act 1975. On 15 February 2023, J uses the entitlement resulting from the payment split to purchase an income stream (the new income stream) covered by section 5JA of the Act. The new income stream is covered by these Principles and retains the 100% exemption from the assets test under the Act.

11  Asset‑test exempt income stream resulting from Family Court order or injunction

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased or acquired by the primary beneficiary or the primary beneficiary’s partner or former partner on or after 20 September 2004; and

                     (c)  it results from another asset‑test exempt income stream (the original income stream) being commuted to give effect to:

                              (i)  an order made under section 79, 90SM, 90SS or 114 of the Family Law Act 1975; or

                             (ii)  an injunction granted under section 90SS or 114 of that Act that is binding on a third party under Part VIIIAA of that Act; or

                            (iii)  any other order or injunction under the Family Law Act 1975 that relates specifically to the original income stream; and

                     (d)  the original income stream was covered by section 5JA or 5JB of the Act; and

                     (e)  the original income stream:

                              (i)  was purchased before 20 September 2004; or

                             (ii)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                            (iii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iv)  until the commencement of these Principles, was covered by the 2011 Principles; or

                             (v)  was covered by these Principles.

Example

On 1 March 2002, J purchased an income stream (the original income stream) covered by subsection 5JA(1) of the Act for the benefit of J, the primary beneficiary, and H, the reversionary beneficiary.  As it was purchased before 20 September 2004, the income stream has a 100% exemption from the assets test under the Act.  At the time of the purchase, J and H are partnered. On 1 February 2023, J and H separate.  On 15 February 2023, J commutes the original income stream in response to a Family Court order and purchases another income stream (the new income stream) covered by subsection 5JA(1) of the Act. The new income stream is covered by these Principles and retains the 100% exemption from the assets test under the Act.

12  Asset‑test exempt income stream resulting from payment of superannuation contributions surcharge debt

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased by the primary beneficiary on or after 20 September 2004; and

                     (c)  it results from another asset‑test exempt income stream (the original income stream) being commuted to pay a superannuation contributions surcharge debt; and

                     (d)  the original income stream was covered by section 5JA or 5JB of the Act; and

                     (e)  the original income stream:

                              (i)  was purchased before 20 September 2004; or

                             (ii)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                            (iii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iv)  until the commencement of these Principles, was covered by the 2011 Principles; or

                             (v)  was covered by these Principles.

13  Asset-test exempt income stream resulting from payment of excess contributions tax

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased by the primary beneficiary on or after 20 September 2004; and

                     (c)  it results from another asset-test exempt income stream (the original income stream) being commuted to pay an amount to give effect to a release authority, given in relation to the primary beneficiary, under:

                              (i)  former section 292-415 of the Income Tax Assessment Act 1997; or

                             (ii)  section 292-80C of the Income Tax (Transitional Provisions) Act 1997; and

                     (d)  the original income stream was covered by section 5JA or 5JB of the Act; and

                     (e)  the original income stream:

                              (i)  was purchased before 20 September 2004; or

                             (ii)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                            (iii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iv)  until the commencement of these Principles, was covered by the 2011 Principles; or

                             (v)  was covered by these Principles.

14  Asset‑test exempt income stream resulting from payment of hardship amount

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased by the primary beneficiary on or after 20 September 2004; and

                     (c)  it results from another asset‑test exempt income stream (the original income stream) being commuted to pay a hardship amount; and

                     (d)  the original income stream was covered by section 5JA or 5JB of the Act; and

                     (e)  the original income stream:

                              (i)  was purchased before 20 September 2004; or

                             (ii)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                            (iii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iv)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

Example

On 1 March 2002, J purchased an income stream (the original income stream) covered by subsection 5JA(1) of the Act for the benefit of J, the primary beneficiary, and H, the reversionary beneficiary.  As it was purchased before 20 September 2004, the income stream has a 100% exemption from the assets test under the Act.  On 3 March 2023, J commutes part of the new income stream to pay a hardship amount, and J purchases another income stream (the further income stream) from the remaining capital backing the new income stream. The further income stream is covered by these Principles and retains the 100% exemption from the assets test under the Act.

15  Commutation of asset‑test exempt income stream resulting from closure of a self managed superannuation fund

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased by the primary beneficiary; and

                     (c)  it is not sourced from a self managed superannuation fund; and

                     (d)  it results from another asset‑test exempt income stream (the original income stream) being commuted as a result of the closure of a self managed superannuation fund because:

                              (i)  a member of the fund supporting the original income stream has died; or

                             (ii)  the administrative responsibilities of the fund supporting the original income stream have become too onerous due to the age or incapacity of a trustee; and

                     (e)  the original income stream was:

                              (i)  covered by section 5JA or 5JB of the Act; and

                             (ii)  sourced from a self managed superannuation fund; and

                      (f)  the original income stream:

                              (i)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                             (ii)  until the commencement of these Principles, was covered by the 2007 Principles; or

                            (iii)  was covered by these Principles.

Example

F and W are trustees of their self managed superannuation fund.  They both have lifetime asset‑test exempt income streams that were purchased on 1 July 2003 when F was 65 and W was 64.  F dies on 26 January 2023.  W subsequently decides that she does not have the expertise or inclination to continue as a fund trustee.  W commutes her asset‑test exempt income stream and uses the proceeds to purchase from a retail income stream provider, an income stream that meets the provisions of section 5JA of the Act.  The new income stream is covered by these Principles and retains the 100% exemption from the assets test under the Act.

16  Asset‑test exempt income stream resulting from commutation or rollover because of regulation 6.21 of Superannuation Industry (Supervision) Regulations 1994

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased by the primary beneficiary on or after 1 July 2007; and

                     (c)  it results from another asset‑test exempt income stream (the original income stream) being commuted or rolled over to comply with subregulation 6.21 (2A) of the Superannuation Industry (Supervision) Regulations 1994; and

                     (d)  the original income stream was covered by section 5JA or 5JB of the Act; and

                     (e)  the original income stream:

                              (i)  was purchased before 20 September 2004; or

                             (ii)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                            (iii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iv)  until the commencement of these Principles, was covered by the 2011 Principles; or

                             (v)  was covered by these Principles.

17  Asset-test exempt income stream that is family law affected income stream

             (1)  These Principles cover an asset-test exempt income stream that is a family law affected income stream that does not meet the requirements of subsection 5JA(2) or 5JB(2) of the Act if:

                     (a)  either:

                              (i)  the income stream meets all the requirements of paragraphs 5JA(2)(a) to (l) or 5JB(2)(a) to (l) of the Act other than those that are not met because of the operation of an order under Part VIIIAA, or a payment split under Part VIIIB, of the Family Law Act 1975 relating to the income stream; or

                             (ii)  as a result of the operation of 1 or more orders under Part VIIIAA, or 1 or more payment splits under Part VIIIB, of the Family Law Act 1975, the income stream is derived from an income stream that was an asset-test exempt income stream to which subsection 5JA(1A) or 5JB(1B) of the Act applied at the time of the order or payment split, or of the last of them; and

                     (b)  the income stream is derived from an original family law affected income stream:

                              (i)  as a result of the operation of 1 or more orders under Part VIIIAA, or 1 or more payment splits under Part VIIIB, of the Family Law Act 1975; and

                             (ii)  the income stream was purchased on or after 20 September 2004; and

                     (c)  the original family law affected income stream from which the income stream is derived as a result of the operation of 1 or more orders under Part VIIIAA, or 1 or more payment splits under Part VIIIB, of the Family Law Act 1975, was purchased before 20 September 2004; and

                     (d)  either:

                              (i)  for an income stream that is an immediate annuity under a statutory fund established by a life company or under a benefit fund — the income stream satisfies standards published by the Australian Prudential Regulation Authority, about minimum surrender values and paid up values, that apply to the annuity; or

                             (ii)  in any other case — the income stream meets the requirements of subsection (2); and

                     (e)  any amount of the original family law affected income stream that is rolled over, transferred, commuted or paid as a lump sum is not more than the amount required to satisfy the non-member partner’s entitlement under an order under Part VIIIAA, or under a payment split under Part VIIIB, of the Family Law Act 1975 relating to the original family law affected income stream; and

                      (f)  for an income stream to which subparagraph (a)(i) applies — the income stream has met all the requirements mentioned in that subparagraph from the day the income stream began being paid.

             (2)  An income stream meets the requirements of this subsection if:

                     (a)  the Commission is satisfied that there is in force a current actuarial certificate that states that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules under which the income stream is provided; or

                     (b)  for a period beginning when an actuarial certificate mentioned in paragraph (a) ceases to be in force and ending not more than 26 weeks later, an actuarial certificate of that kind is not in force.

18  Commutation of asset‑test exempt income stream resulting from the closure of a regulated superannuation fund or sub fund

                   These Principles cover an asset‑test exempt income stream if:

                     (a)  it is covered by section 5JA or 5JB of the Act; and

                     (b)  it is purchased or acquired on or after 20 September 2004; and

                     (c)  it results from another asset‑test exempt income stream (the original income stream) being commuted as a result of the closure of a regulated superannuation fund or sub-fund; and

                     (d)  it does not result from another asset‑test exempt income stream (the original income stream) being commuted as a result of the closure of a self managed superannuation fund; and

                     (e)  the original income stream was:

                              (i)  covered by section 5JA or 5JB of the Act; and

                             (ii)  sourced from a regulated superannuation fund; and

                      (f)  the original income stream:

                              (i)  was covered by the 2005 Principles during the period starting on 20 September 2004 and ending at the end of 19 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

 

Part 3  Partially asset‑test exempt income streams

19  Principles

                   For subparagraph (b)(ii) of the definition of partially asset‑test exempt income stream in subsection 52(1AA) of the Act, the principles are the Principles set out in this Part.

20  Partially asset‑test exempt income stream resulting from original partially asset‑test exempt income stream purchased on or after 20 September 2004 but before 20 September 2007

             (1)  These Principles cover an income stream if:

                     (a)  the income stream (the present income stream) is purchased by the primary beneficiary on or after 20 September 2007 from the commutation of a partially asset‑test exempt income stream (the original income stream); and

                     (b)  the original income stream was purchased on or after 20 September 2004 and before 20 September 2007; and

                     (c)  the original income stream is a kind of income stream in relation to which one of the following subsections applies.

             (2)  This subsection applies to an original income stream if:

                     (a)  it was purchased by the primary beneficiary for the benefit of the primary beneficiary and a reversionary beneficiary; and

                     (b)  payments made under the income stream are calculated on the basis of the life expectancy of the reversionary beneficiary; and          

                     (c)  the reversionary beneficiary predeceases the primary beneficiary.

             (3)  This subsection applies to an original income stream if:

                     (a)  it is not an income stream to which section 22 or 23 of these Principles applies; and

                     (b)  it is purchased by the primary beneficiary for the benefit of the primary beneficiary and a reversionary beneficiary who, at the time of the purchase, are members of a couple together; and

                     (c)  the primary beneficiary and reversionary beneficiary are no longer members of a couple together.

Example

On 1 March 2005, J purchased an income stream (the original income stream) covered by subsection 5JA(1) of the Act for the benefit of J, the primary beneficiary, and H, the reversionary beneficiary. The income stream has a 50% exemption from the assets test. At the time of the purchase, J and H were members of a couple together. On 1 December 2008, J and H ceased to be members of a couple together. On 15 December 2008, J commutes the original income stream and purchases another income stream (the new income stream) covered by section 5JA) of the Act. The new income stream is covered by these Principles and retains the 50% exemption from the assets test under the Act.

             (4)  This subsection applies to an original income stream if:

                     (a)  it is a defined benefit pension covered by subsection 5JA(1) or 5JB(1A) of the Act that is provided by a regulated superannuation fund; and

                     (b)  it is an income stream in relation to which the Commission is not satisfied that the applicable requirements under paragraph 5JA(1)(b) or 5JB(1A)(b) of the Act, are met.

Example

On 1 March 2005, P purchased an income stream (the original income stream) that is a defined benefit pension covered by section 5JA of the Act that is provided by a regulated superannuation fund. Paragraph 5JA(1)(b) of the Act applies to the original income stream. The income stream has a 50% exemption from the assets test under the Act. On 1 September 2022, the Commission is not satisfied that the requirements of paragraph 5JA(1)(b) of the Act are met in relation to the original income stream. On 15 September 2022, P commutes the original income stream to purchase another income stream (the new income stream) that is covered by section 5JA of the Act. The new income stream is covered by these Principles and retains the 50% exemption from the assets test under the Act.

Note  Paragraphs 5JA(1)(b) and 5JB(1A)(b) of the Act require the Commission to be satisfied, in relation to an income stream, that there is in force a current actuarial certificate stating that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the income stream’s contract or governing rules.

             (5)  This subsection applies to an original income stream if:

                     (a)  the income stream is an immediate annuity under a statutory fund established by a life company, or under a benefit fund; and

                     (b)  the income stream:

                              (i)  is an income stream to which paragraph 5JA(1)(b) or 5JB(1A)(b) of the Act applies or would have applied if paragraph 5JA(1)(aa) or subparagraph 5JB(1)(a)(i) of the Act did not apply, and in relation to which the Commission is not satisfied as required by that paragraph; or

                             (ii)  fails to satisfy relevant standards published by the Australian Prudential Regulation Authority about minimum surrender values and paid up values.

Note  Paragraphs 5JA(1)(b) and 5JB(1A)(b) of the Act require the Commission to be satisfied, in relation to an income stream, that there is in force a current actuarial certificate stating that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the income stream’s contract or governing rules.

21  Partially asset‑test exempt income stream resulting from transfer to successor fund

                   These Principles cover an income stream if:

                     (a)  it results from the transfer, on or after 20 September 2007, of another income stream (the original income stream) to a successor fund; and

                     (b)  at the time of transfer, the original income stream was:

                              (i)  covered by section 5JA, 5JB or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                             (ii)  provided by a regulated superannuation fund; and

                     (c)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

22  Partially asset‑test exempt income stream resulting from payment split

                   These Principles cover an income stream if:

                     (a)  it is purchased or acquired by the primary beneficiary or the primary beneficiary’s partner or former partner on or after 20 September 2007; and

                     (b)  it results from a partially asset‑test exempt income stream (the original income stream) being commuted to give effect to an entitlement of the partner or former partner of the primary beneficiary in respect of the original income stream under a payment split under Part VIIIB of the Family Law Act 1975; and

                     (c)  the original income stream was covered by section 5JA, 5JB or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                     (d)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

Example

On 1 March 2005, P, who was partnered to J at that date, purchased an income stream (the original income stream) covered by section 5JA of the Act. The income stream has a 50% exemption from the assets test under the Act. On 1 February 2023, P and J separate. P’s original income stream is commuted to give effect to an entitlement of J in respect of the original income stream under a payment split under Part VIIIB of the Family Law Act 1975. On 15 February 2023, J uses the entitlement resulting from the payment split to purchase an income stream (the new income stream) covered by section 5JA of the Act. The new income stream is covered by these Principles and retains the 50% exemption from the assets test under the Act.

23  Partially asset‑test exempt income stream resulting from Family Court order or injunction

                   These Principles cover an income stream if:

                     (a)  it is purchased or acquired by the primary beneficiary or the primary beneficiary’s partner or former partner on or after 20 September 2007; and

                     (b)  it results from a partially asset‑test exempt income stream (the original income stream) being commuted to give effect to:

                              (i)  an order made under section 79, 90SM, 90SS or 114 of the Family Law Act 1975; or

                             (ii)  an injunction granted under section 90SS or 114 of that Act, that is binding on a third party under Part VIIIAA of that Act; or

                            (iii)  any other order or injunction under the Family Law Act 1975 that relates specifically to the original income stream; and

                     (c)  the original income stream was covered by section 5JA, 5JB or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                     (d)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

24  Partially asset‑test exempt income stream resulting from payment of superannuation contributions surcharge debt

                   These Principles cover an income stream if:

                     (a)  it is purchased by the primary beneficiary on or after 20 September 2007; and

                     (b)  it results from a partially asset‑test exempt income stream (the original income stream) being commuted to pay a superannuation contributions surcharge debt; and

                     (c)  the original income stream was covered by section 5JA, 5JB or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                     (d)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

25  Partially asset-test exempt income stream resulting from payment of excess contributions tax

                   These Principles cover an income stream if:

                     (a)  it is purchased by the primary beneficiary on or after 20 September 2007; and

                     (b)  it results from a partially asset-test exempt income stream (the original income stream) being commuted to pay an amount to give effect to a release authority, given in relation to the primary beneficiary, under:

                              (i)  former section 292-415 of the Income Tax Assessment Act 1997; or

                             (ii)  section 292-80C of the Income Tax (Transitional Provisions) Act 1997; and

                     (c)  the original income stream was covered by section 5JA, 5JB or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                     (d)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

26  Partially asset‑test exempt income stream resulting from payment of hardship amount

                   These Principles cover an income stream if:

                     (a)  it is purchased by the primary beneficiary on or after 20 September 2007; and

                     (b)  it results from a partially asset‑test exempt income stream (the original income stream) being commuted to pay a hardship amount; and

                     (c)  the original income stream was covered by section 5JA, 5JB or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                     (d)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

27  Partially asset-test exempt market-linked income stream resulting from commutation of another partially asset-test exempt market-linked income stream

                   These Principles cover an income stream if:

                     (a)  it is covered by section 5JBA of the Act or would have been covered by that section if subparagraph 5JBA (1) (a) (i) of the Act did not apply; and

                     (b)  it results from the commutation and rollover of all the assets supporting a partially asset-test exempt income stream (the original income stream); and

                     (c)  the original income stream was covered by section 5JBA of the Act or would have been covered by that section if subparagraph 5JBA(1)(a)(i) did not apply; and

                     (d)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

28  Commutation of partially asset‑test exempt income stream resulting from closure of a self managed superannuation fund

                   These Principles cover an income stream if:

                     (a)  it is purchased by the primary beneficiary; and

                     (b)  it is not sourced from a self managed superannuation fund; and

                     (c)  it results from a partially asset‑test exempt income stream (the original income stream) being commuted as a result of the closure of a self managed superannuation fund because:

                              (i)  a member of the fund supporting the original income stream has died; or

                             (ii)  the administrative responsibilities of the fund supporting the original income stream have become too onerous due to the age or incapacity of a trustee; and

                     (d)  the original income stream was:

                              (i)  covered by section 5JA, 5JB, or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                             (ii)  sourced from a self managed superannuation fund; and

                            (iii)  covered by the 2007 Principles, 2011 Principles or these Principles.

Example

G and A are trustees of their self managed superannuation fund.  They both have market‑linked asset‑test exempt income streams that were purchased on 1 July 2005 when G was 65 and A was 64. G dies on 26 January 2015. A subsequently decides that she does not have the expertise or inclination to continue as a fund trustee.  A commutes her market‑linked asset‑test exempt income stream and uses the proceeds to purchase from a retail income stream provider, an income stream that meets the provisions of section 5JBA of the Act.  The new income stream is covered by these Principles and retains the 50% exemption from the assets test under the Act.

29  Partially asset‑test income stream resulting from commutation or rollover because of regulation 6.21 of Superannuation Industry (Supervision) Regulations 1994

                   These Principles cover an income stream if:

                     (a)  it is purchased by the primary beneficiary on or after 1 July 2007; and

                     (b)  it results from an asset‑test exempt income stream (the original income stream) being commuted or rolled over to comply with subregulation 6.21(2A) of the Superannuation Industry (Supervision) Regulations 1994; and

                     (c)  the original income stream was covered by section 5JA, 5JB or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                     (d)  the original income stream:

                              (i)  was purchased on or after 20 September 2004 and before 20 September 2007; or

                             (ii)  was covered by the 2007 Principles during the period starting on 20 September 2007 and ending at the end of 24 November 2011; or

                            (iii)  until the commencement of these Principles, was covered by the 2011 Principles; or

                            (iv)  was covered by these Principles.

30  Partially asset-test exempt income stream that is family law affected income stream

             (1)  These Principles cover an income stream that is a family law affected income stream that does not meet the requirements of subsection 5JA (2) or 5JB (2) of the Act if:

                     (a)  either:

                              (i)  the income stream meets all the requirements of paragraphs 5JA(2)(a) to (l) or 5JB(2)(a) to (l) of the Act other than those that are not met because of the operation of an order under Part VIIIAA, or a payment split under Part VIIIB, of the Family Law Act 1975 relating to the income stream; or

                             (ii)  as a result of the operation of one or more orders under Part VIIIAA, or 1 or more payment splits under Part VIIIB, of the Family Law Act 1975, the income stream was derived from an income stream that was an asset-test exempt income stream to which subsection 5JA(1A) or 5JB(1B) of the Act applied at the time of the order or payment split, or of the last of them; and

                     (b)  the original family law affected income stream from which the income stream is derived as a result of the operation of one or more orders under Part VIIIAA, or one or more payment splits under Part VIIIB, of the Family Law Act 1975, was purchased after 19 September 2004 and before 20 September 2007; and

                     (c)  either:

                              (i)  for an income stream that is an immediate annuity under a statutory fund established by a life company, or under a benefit fund — the income stream satisfies standards published by the Australian Prudential Regulation Authority, about minimum surrender values and paid up values, that apply to the annuity; or

                             (ii)  in any other case — the income stream meets the requirements of subsection (2); and

                     (d)  any amount of the original family law affected income stream that is rolled over, transferred, commuted or paid as a lump sum is not more than the amount required to satisfy the non-member partner’s entitlement under an order under Part VIIIAA, or under a payment split under Part VIIIB, of the Family Law Act 1975 relating to the original family law affected income stream; and

                     (e)  for an income stream to which subparagraph (a)(i) applies — the income stream has met all the requirements mentioned in that subparagraph from the day the income stream began being paid.

             (2)  An income stream meets the requirements of this subsection if:

                     (a)  there is in force a current actuarial certificate that states that in the actuary’s opinion there is a high probability that the provider of the income stream will be able to pay the income stream as required under the contract or governing rules under which the income stream is provided; or

                     (b)  for a period beginning when an actuarial certificate mentioned in paragraph (a) ceases to be in force and ending not more than 26 weeks later, an actuarial certificate of that kind is not in force.

31  Commutation of partially asset‑test exempt income stream resulting from the closure of a regulated superannuation fund or sub fund

                   These Principles cover an income stream if:

                     (a)  it is purchased or acquired on or after 20 September 2007; and

                     (b)  it results from a partially asset‑test exempt income stream (the original income stream) being commuted as a result of the closure of a regulated superannuation fund or sub-fund; and

                     (c)  it does not result from another asset‑test exempt income stream (the original income stream) being commuted as a result of the closure of a self managed superannuation fund; and

                     (d)  the original income stream was:

                              (i)  covered by section 5JA, 5JB, or 5JBA of the Act or would have been covered by those sections if paragraph 5JA(1)(aa), subparagraph 5JB(1)(a)(i) or subparagraph 5JBA(1)(a)(i) of the Act did not apply; and

                             (ii)  sourced from a regulated superannuation fund; and

                            (iii)  covered by the 2007 Principles, 2011 Principles or these Principles.


 

Schedule 1—Repeals

Veterans’ Entitlements (Retention of exemption for asset-test exempt income streams) Principles 2011

1  The whole of the instrument

Repeal the instrument