Taxation Ruling IT 2352 - Income tax - assessable income to include value of certain benefits

What this ruling is about: The Income Tax Assessment Amendment Act (No 5) 1984 inserted section 26AFA into the Income Tax Assessment Act 1936 to subject to tax certain benefits received on or after 7 December 1983 from or in connection with section 23F superannuation funds. Taxation Ruling No. IT 2274 discusses the circumstances in which sub-section 26AFA(2) is to be applied to override the operative sub-section (sub-section (1)) of section 26AFA. 2. As explained in that earlier Ruling, one of the conditions for the application of sub-section 26AFA(1) is that the benefit received from or in connection with a section 23F superannuation fund is either a benefit that the taxpayer has no right to receive from the fund (sub-paragraph 26AFA(1)(b)(i)) or an excessive benefit (sub-paragraph 26AFA(1)(b)(ii)). This Ruling addresses the question of when a taxpayer does have a right to receive a fund benefit.


Ruling: 3. Generally, a right to receive a benefit from a section 23F superannuation fund arises under the rules of the fund. Those rules would ordinarily provide, in line with the requirements of section 23F, that- 4. A right to receive a benefit from a section 23F superannuation fund might also arise under legislation such as the NSW Employment Protection Act 1982. Under that Act, the NSW Industrial Commission may, in certain circumstances where an employee is dismissed, make an order requiring the payment of superannuation fund benefits to the employee, as a former member of the fund, as if those benefits were provided for under the rules of the fund. 5. A benefit received or obtained by a taxpayer from or in connection with a section 23F superannuation fund in any of the abovementioned circumstances is not within the scope of sub-paragraph 26AFA(1)(b)(i). It follows that, unless the benefit was an excessive benefit (see Taxation Ruling No. IT 2274), section 26AFA would not apply to such a benefit. The benefit may, of course, be an eligible termination payment to which the provisions of Subdivision AA of Division 2 of Part III of the Income Tax Assessment Act apply. COMMISSIONER OF TAXATION 6 August 1986




Date of effect: Immediate


Related rulings: IT 2274
Legislative references: 23F 26AFA
Subject references: ASSESSABLE INCOME CERTAIN SUPERANNUATION FUND BENEFITS