Document ID: chunk:federal_register_of_legislation:C2025C00134:section:42:p4
Version: federal_register_of_legislation:C2025C00134
Segment Type: section
Provision Reference: s 42 (pt 4/4)
Character Range: 336551–338586

for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and
 (B) the seriousness of the contravention; and
 (C) all other relevant circumstances;
  thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned; or
 (b) all of the following conditions are satisfied:
 (i) one or more members of the entity were in any way directly or indirectly knowingly concerned in, or party to, the contravention;
 (ii) one or more members of the entity (the innocent members) were not in any way directly or indirectly knowingly concerned in, or party to, the contravention;
 (iii) none of the innocent members would suffer any substantial financial detriment if the entity were to be treated as a non‑complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned;
 (iv) the Regulator, after considering:
 (A) the taxation consequences that would arise if the entity were to be treated as a non‑complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 in relation to the year of income concerned; and
 (B) the seriousness of the contravention; and
 (C) all other relevant circumstances;
  thinks that a notice should be given stating that the entity is not a complying superannuation fund in relation to the year of income concerned.
Note: The culpability test is still relevant to a fund that has been a self managed fund during only part of a year of income—see subparagraph 42A(2)(b)(ii), paragraph 42A(3)(g) and subparagraph 42A(4)(f)(ii).
 (1B) For the purposes of subsection (1A), if there is a question whether a person was in any way directly or indirectly knowingly concerned in, or party to, a particular contravention, that question may be decided on the balance of probabilities.
 (2) In this section, a reference to a member of an entity means, if the entity is an approved deposit fund, a beneficiary of the fund.