Issued by authority of the Minister for Financial Services, Superannuation and Corporate Law

Income Tax Assessment Act 1997

Income Tax Assessment Amendment Regulations 2009 (No. 5)

Section 909‑1 of the Income Tax Assessment Act 1997 (the 1997 Tax Act) provides; in part, that the Governor-General may make regulations prescribing matters required or permitted by the 1997 Tax Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the 1997 Tax Act.

The Income Tax Assessment Regulations 1997 (the Principal Regulations) prescribe certain state legislation, schemes established under which are constitutionally protected funds (CPFs). CPFs are public sector superannuation schemes established for employees of state governments, the income of which is exempt from income tax under section 50‑25 of the 1997 Tax Act.

The purpose of the Regulations is to ensure the Triple S scheme for South Australian (SA) Government employees continues to be a CPF, and therefore certain contributions and income of the scheme are exempt from tax.

The Triple S scheme was established by the Southern State Superannuation Act 1994 (SA) which is listed in the Principal Regulations. However, on 1 August 2009, the Southern State Superannuation Act 1994 (SA) was repealed and replaced by the Southern State Superannuation Act 2009 (SA), which establishes and continues the Triple S scheme.

The Regulations update the reference in the Principal Regulations to reflect the changes made by the SA Government to its legislation, and therefore enable the Triple S scheme to continue to be a CPF.

The Regulations also effect a minor technical amendment to remove obsolete provisions from the reference to the Police Superannuation Act 1990 (SA) in the Principal Regulations.

The Regulations also amend Division 302 of the Principal Regulations to correct a numbering error.

Details of the Regulations are set out in the Attachment.

The 1997 Tax Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LI Act).

The amendment ensures the Triple S scheme continues to be a CPF and commenced on 1 August 2009. The minor change made to reflect changes to state legislation made by the SA Government commenced on 1 July 2008. The amendment to correct the numbering error commences on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

Subsection 12(2) of the LI Act prohibits the retrospective operation of regulations, or a provision of regulations, which adversely affect the rights of, or impose liabilities on, a person other than the Commonwealth Government in respect of anything done or omitted to be done before the date of notification. The Office of Legislative Drafting and Publishing has advised that the Regulations do not contravene subsection 12(2) of the LI Act.

ATTACHMENT

Details of Income Tax Assessment Amendment Regulations 2009 (No. 5)

Regulation 1 – Name of Regulations

This regulation provides that the title of the Regulations is the Income Tax Assessment Amendment Regulations 2009 (No. 5).

Regulation 2 – Commencement

This regulation provides that the Regulations commence as follows:

a)      on 1 July 2008 – regulations 1, 2 and 3 and Schedule 1;

b)      on 1 August 2009 – regulation 4 and Schedule 2;

c)      on the day after they are registered – regulation 5 and Schedule 3.

Regulation 3 – Amendment of Income Tax Assessment Regulations 1997 – Schedule 1

This regulation provides that the Income Tax Assessment Regulations 1997 (the Principal Regulations) are amended as set out in Schedule 1.

Regulation 4 – Amendment of Income Tax Assessment Regulations 1997 – Schedule 2

This regulation provides that the Principal Regulations are amended as set out in Schedule 2.

Regulation 5 – Amendment of Income Tax Assessment Regulations 1997 – Schedule 3

This regulation provides that the Principal Regulations are amended as set out in Schedule 3.

Schedule 1 Amendments

Item 1 – Schedule 4, item 504

Item 1 omits ‘(other than sections 47 and 47A)’ after the ‘Police Superannuation Act 1990’. These sections were repealed by the South Australian Parliament with effect from 1 July 2008.

Schedule 2 Amendment

Item 1 – Schedule 4, item 505

Item 1 substitutes item 505 in Schedule 4 to the Principal Regulations with a reference to the ‘Southern State Superannuation Act 2009 (other than section 30(2)(h))’. The amendment updates the legislative reference to ensure the South Australian Triple S scheme continues to be a constitutionally protected fund.

Schedule 3 Amendments

Item 1 – Division 302

Item 1 omits the first occurring Division 302 (containing regulations 302‑195 and 302‑195A), from the Principal Regulations, as these provisions are not located in numerical order.

Item 2 inserts regulations 302-195 and 302-195A in the correct numerical order in Subdivision 302-D of the Principal Regulations.