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Act Repealed Latest version as at 01 August 1990 (as enacted) | 1990 No 67

Superannuation Schemes Amendment Act 1990

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Act Repealed Latest version as at 01 August 1990 (as enacted) | 1990 No 67

Superannuation Schemes Amendment Act 1990

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1 Short Title

This Act may be cited as the Superannuation Schemes Amendment Act 1990, and shall be read together with and deemed part of the Superannuation Schemes Act 1989 (hereinafter referred to as the principal Act).

2 Interpretation

(1)

Section 2(1) of the principal Act is hereby amended by repealing the definition of the term “beneficiary”, and substituting the following definition:

“‘Beneficiary’, in relation to any superannuation scheme, means—

“(a)

A natural person who is eligible to receive a benefit from the scheme:

“(b)

The trustee of another registered superannuation scheme which is eligible to receive a benefit from the scheme:”.

(2)

Section 2(1) of the principal Act is hereby amended by repealing the definition of the term “member”, and substituting the following definition:

“‘Member’, in relation to any superannuation scheme, means—

“(a)

A natural person who has been admitted to membership of the scheme and who is, or may become, entitled to benefits under the scheme:

“(b)

The trustees of another registered superannuation scheme which has been admitted to membership of the scheme and which is, or may become, entitled to benefits under the scheme:”.

(3)

Section 2(1) of the principal Act is hereby amended by inserting in paragraph (a) of the definition of the term “superannuation scheme”, or “scheme”, after the words “who are natural persons”, the words “or paying benefits to persons who are the trustees of a registered superannuation scheme”.

3 Regulations

Section 30(a) of the principal Act is hereby amended by inserting, after the words “amendments to schemes,”, the words “for applications under section 204q(3) of the Income Tax Act 1976,”.

4 Reduction of benefits where employer obliged to provide defined benefit

The principal Act is hereby amended by inserting, after section 45, the following section:

“45a

Where—

“(a)

Any employer is obliged or committed pursuant to any term or condition of a contract of employment to ensure the provision of defined benefits or benefits of not less than a defined level from any superannuation scheme; and

“(b)

The amount of any benefit payable by the scheme pursuant to or in respect of that obligation or commitment is reduced in accordance with this Part of this Act to an amount that is less than the defined benefit or the defined level,—

the employer shall be deemed not to be in breach of that obligation or commitment where, and to the extent only that, the benefit paid falls short of the amount of the defined benefit or defined level of benefit by the amount of that reduction.”

5 New Part added

The principal Act is hereby amended by adding the following Part:

“PART VI “Transfer of Superannuation Business of Life Offices

“68 Application for approval of transfer of superannuation business

“(1)

Where any life insurer (as defined in section 204 of the Income Tax Act 1976) proposes to transfer property to the trustee of a registered superannuation scheme in consideration for the agreement by that trustee to assume liabilities to provide benefits under the scheme, being liabilities that were previously liabilities of the life insurer in relation to any registered superannuation scheme, the life insurer may apply to the Government Actuary for approval of the arrangement pursuant to which the transfer is to occur.

“(2)

Every application under this section shall be made before the 1st day of January 1992.

“(3)

Every such application shall be accompanied by—

“(a)

A report from an actuary (as defined in section 204 of the Income Tax Act 1976) on behalf of the life insurer stating—

“(i)

The specific interest, mortality, and other assumptions and bases of calculation applied in determining the value of the liabilities that are to be transferred to the trustee of the registered superannuation scheme; and

“(ii)

That such assumptions and bases of calculations are appropriate for use in determining the value of such liabilities, and are in accordance with the requirements of subsection (4)(a) of this section; and

“(b)

An independent valuation of the property proposed to be transferred under the arrangement, certified by such person or class of person as may be approved generally or in any particular case by the Government Actuary; and

“(c)

A certificate from a solicitor stating that either—

“(i)

No provision of a kind referred to in section 69(2)(a) of this Act is included in the trust deed of the registered superannuation scheme to which the liabilities of the life insurer are to be transferred; or

“(ii)

The inclusion of any such provision or combination of provisions in the trust deed will not detrimentally affect any beneficiary in any material way.

“(4)

Any property that is proposed to be transferred from a life insurer to the trustee of a superannuation scheme pursuant to an arrangement for which approval is sought under this Part of this Act shall—

“(a)

Be determined by an actuary (as defined in section 204 of the Income Tax Act 1976) on behalf of the life insurer having regard to—

“(i)

The actuarial soundness of the business of life insurance carried on by the life insurer before and following the proposed transfer, and of the superannuation scheme before and following the proposed transfer; and

“(ii)

The terms and conditions defining those liabilities of the life insurer that are to be assumed by the scheme, immediately prior to the proposed transfer; and

“(iii)

Any allocation in the records of the life insurer of the assets of the life insurer before the proposed transfer towards satisfying, or in determining the extent of, the liabilities of the life insurer that are to be assumed by the superannuation scheme:

“(b)

Be valued in such manner or by such person or class of person as may be indicated by the Government Actuary in any particular case or class of case as acceptable for the purposes of the independent valuation referred to in subsection (3)(b) of this section.

“(5)

No application shall be made under this section where the trustee that is the proposed transferee of the property is treated for the purposes of the Income Tax Act 1976 as a person carrying on the business of providing life insurance.

“69 Approval of transfer arrangement by Government Actuary

“(1)

The Government Actuary shall approve a transfer arrangement in respect of which an application is made under section 68 of this Act where the Government Actuary is satisfied that—

“(a)

The trust deed of the superannuation scheme to which the property and liabilities are to be transferred incorporates, whether in the body of the trust deed itself or by reference to any other trust deed or document, terms and conditions under which the liabilities of the trustee of the scheme to the beneficiaries will, subject to subsection (2) of this section, be the same as those of the life insurer transferring the property; and

“(b)

The trustee of the scheme to which the property and liabilities are to be transferred has been advised of the details of the proposed transfer arrangement and consents to the arrangement; and

“(c)

Where the consideration for the transfer of any property by the life insurer is the assumption by the trustee of the scheme of the liability to provide benefits to any specific beneficiary (being, in the case of a beneficiary that is a superannuation scheme, the trustee of that scheme), that beneficiary consents to the transfer arrangement; and

“(d)

The property to be transferred pursuant to the arrangement has been determined by an actuary and valued in accordance with subsection (4) of section 68 of this Act, and that determination and that valuation are appropriate having regard to the provisions of that subsection and those liabilities of the life insurer that are to be transferred to the trustee of the scheme.

“(2)

For the purposes of paragraph (a) of subsection (1) of this section, the Government Actuary may treat the liabilities of the trustee and the life insurer towards beneficiaries as being the same where—

“(a)

Those liabilities differ by reason only of the trust deed of the scheme to which the property is to be transferred containing any one or more provisions of the following nature:

“(i)

Such provisions as may be necessary to ensure consistency with provisions that are implied or required in the trust deed by virtue of any of the provisions of this Act; or

“(ii)

A provision giving the trustee power to borrow money on such terms and in such cases as the trustee in the trustee’s discretion thinks fit for the purposes of making any investment or paying any benefit or meeting any liability or for the purpose of management of the scheme; or

“(iii)

Subject to the provisions of this Act, a provision giving the trustee the benefit of limited liability; or

“(iv)

A provision giving a proportion of the beneficiaries of the scheme the power to determine that the scheme be totally or partially wound up; or

“(v)

A provision giving the ability for the trustee to pay out of the property of the scheme management fees and expenses relating to the scheme; and

“(b)

The Government Actuary is satisfied that the inclusion of any such provision, or any combination of any such provisions, in the trust deed will not detrimentally affect any beneficiary in any material way.

“(3)

Where the Government Actuary approves a transfer arrangement under this section, the Government Actuary shall, in giving the approval, specify the property that is to be transferred pursuant to the arrangement in such manner as the Government Actuary considers appropriate to ensure that property of the appropriate type and to the appropriate amount or value will be transferred.

“70 Transfer of property pursuant to approved arrangement

Any transfer of property and liabilities made by a life insurer pursuant to a transfer arrangement approved by the Government Actuary under section 69 of this Act shall, if the transfer of property and liabilities occurs not later than 3 months after the date of the Government Actuary’s approval, be lawful notwithstanding that—

“(a)

The consent of all members and beneficiaries of any superannuation scheme in respect of which the life insurer’s liabilities and property are transferred pursuant to the transfer arrangement has not been obtained; or

“(b)

The transfer of the property and liabilities may otherwise be contrary to the trust deed of the scheme.

“71 Liability to stamp duty, goods and services tax, and income tax in respect of transfer of property

Where any property is transferred from a life insurer to the trustee of a registered superannuation scheme pursuant to a transfer arrangement approved by the Government Actuary under section 69 of this Act, and the transfer occurs not later than 3 months after the date of the Government Actuary’s approval,—

“(a)

No stamp duty shall be payable under the Stamp and Cheque Duties Act 1971 in respect of any instrument to the extent to which the instrument gives effect to any such transfer of property; and

“(b)

Any supply of goods and services which would, but for this section, be charged with goods and services tax under section 8 of the Goods and Services Tax Act 1985, shall be charged under that Act with goods and services tax at the rate of zero percent to the extent to which that supply gives effect to any such transfer of property; and

“(c)

The provisions of section 206 of the Income Tax Act 1976 shall apply in relation to any such transfer of property.”

This Act is administered in the Treasury.

Act Repealed Latest version as at 01 August 1990 (as enacted)

Superannuation Schemes Amendment Act 1990

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