KiwiSaver Act 2006

Schedule 1 KiwiSaver scheme rules

ss 4, 116

Schedule 1 heading: amended, on 1 December 2014, by section 103(1) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

1 Application

The KiwiSaver scheme rules apply to all KiwiSaver schemes.

Schedule 1 clause 1: replaced, on 1 December 2014, by section 103(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Rules applying to KiwiSaver schemes other than restricted schemes

[Repealed]

Heading: repealed, on 1 December 2014, pursuant to section 103(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

1A Trustee’s duties
[Repealed]

Schedule 1 clause 1A: repealed, on 1 December 2014, by section 103(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

1B Manager’s duties
[Repealed]

Schedule 1 clause 1B: repealed, on 1 December 2014, by section 103(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

1C Scheme investments and property
[Repealed]

Schedule 1 clause 1C: repealed, on 1 December 2014, by section 103(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

1D Manager to provide information to trustee
[Repealed]

Schedule 1 clause 1D: repealed, on 1 December 2014, by section 103(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Rules applying to all KiwiSaver schemes

Heading: inserted, on 1 May 2011, by section 54(1) of the KiwiSaver Amendment Act 2011 (2011 No 8).

1E Investment of scheme money
[Repealed]

Schedule 1 clause 1E: repealed, on 1 December 2014, by section 103(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

2 Fees must not be unreasonable

(1)

The following persons must not charge a fee that is unreasonable:

(a)

the manager of the scheme:

(b)

the supervisor of the scheme:

(c)

the administration manager of the scheme:

(d)

the investment manager of the scheme:

(e)

any other person who charges a fee for services in relation to the provision of a KiwiSaver scheme.

(2)

For the purposes of subclause (1), all fees charged by the manager, supervisor, administration manager, or investment manager of a related underlying fund, and by any other person who charges a fee for services in relation to the provision of a related underlying fund, must be treated as being included in the fee charged by the manager of the KiwiSaver scheme.

(3)

In this clause,—

associated person has the same meaning as in section 12 of the Financial Markets Conduct Act 2013

fund means a defined pool of assets that are held for the benefit of a group of investors and that are managed together under a single investment mandate

related underlying fund means, in relation to a KiwiSaver scheme,—

(a)

an underlying fund that is managed by the manager of the KiwiSaver scheme (A) or by an associated person of A; and

(b)

if a fund of the KiwiSaver scheme is managed as a whole by a person other than A, an underlying fund that is managed by that person or that person’s associated persons

underlying fund means, in relation to a KiwiSaver scheme or a fund of that KiwiSaver scheme (KiwiSaver fund), a fund in which the KiwiSaver fund, or any part of that KiwiSaver fund, is invested, whether directly or indirectly through a number of layers of funds.

(4)

For the purposes of this clause, the terms manager, supervisor, administration manager, and investment manager apply in relation to an underlying fund as if it were a scheme.

(5)

[Repealed]

Schedule 1 clause 2(1): replaced, on 1 December 2014, by section 104 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 2(2): replaced, on 1 December 2014, by section 104 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 2(3): replaced, on 1 December 2014, by section 104 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 2(4): replaced, on 1 December 2014, by section 104 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 2(5): repealed, on 19 December 2007, by section 102(1) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

3 Minimum contribution for employee member

(1)

For each pay period, an employee member must contribute to the KiwiSaver scheme at least the minimum contribution rate of that employee’s salary or wages in accordance with sections 64 to 68.

(2)

Subclause (1) does not apply if the employee is taking a savings suspension or for the period that the employee has a valid non-deduction notice under section 112B that they have given to their employer.

(3)

For the purposes of this clause, a member does not contribute to the KiwiSaver scheme, if the contributions are made for a purpose other than—

(a)

to enable the payment of future benefits to the member under the KiwiSaver scheme; or

(b)

to enable the payment of fees in respect of the KiwiSaver scheme.

Schedule 1 clause 3(2): amended, on 1 April 2019, by section 321 of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Schedule 1 clause 3(2): amended (with effect on 1 July 2012), on 2 November 2012, by section 238(1) of the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Act 2012 (2012 No 88).

4 Withdrawal age

(1)

Subject to other permitted withdrawals, a member is not permitted to withdraw amounts from their KiwiSaver scheme before the date on which the member reaches the New Zealand superannuation qualification age.

(2)

Subject to subclauses (4) to (6), a member is permitted to withdraw amounts, not totalling more than the member’s accumulation, from their KiwiSaver scheme on and after the date on which the member reaches the New Zealand superannuation qualification age.

(3)

A person ceases, at the option of the provider of the KiwiSaver scheme, to be a member of the KiwiSaver scheme if—

(a)

the balance in all of the member’s accounts reaches zero; and

(b)

the provider gives notice to the member that the person’s membership is terminated.

(4)

Despite subclause (2) and subject to other permitted withdrawals (other than under subclause (2)), a person is not permitted to make a withdrawal from their KiwiSaver scheme before the grandparented end payment date, if the person is a grandparented member.

(5)

On and after the date on which a grandparented member reaches the grandparented end payment date, the member is permitted to withdraw amounts from their KiwiSaver scheme, not totalling more than the member’s accumulation.

(6)

For the purposes of these rules,—

5-year grandparenting date means the earliest of—

(a)

the date that is 5 years after the day on which the member first became a member of a KiwiSaver scheme; or

(b)

the date that is 5 years after the day, under section 85, on which the Commissioner first received a contribution for a KiwiSaver scheme in relation to the member; or

(c)

the date that is 5 years after the day on which the member first became a member of a complying superannuation fund, if the member has become a member of the KiwiSaver scheme as a result of a transfer from a complying superannuation fund

grandparented end payment date means the later of—

(a)

the date on which the member reaches the New Zealand superannuation qualification age:

(b)

the 5-year grandparenting date

grandparented member—

(a)

means a member for whom 1 of the following dates is before 1 July 2019:

(i)

the date on which the member first became a member of a KiwiSaver scheme:

(ii)

the date, under section 85, on which the Commissioner first received a contribution for a KiwiSaver scheme in relation to the member:

(iii)

the date on which the member first became a member of a complying superannuation fund, if the member has become a member of the KiwiSaver scheme as a result of a transfer from a complying superannuation fund; but

(b)

does not include a person who has given their KiwiSaver scheme provider notice of the person’s election that this definition does not apply to them; and

(c)

does not include a person who was of New Zealand superannuation qualification age before 1 July 2019.

Schedule 1 clause 4: replaced, on 1 July 2019, by section 320(1) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Schedule 1 clause 4(6) grandparented member: replaced, on 1 April 2020, by section 320(2) of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Schedule 1 clause 4(6) grandparented member paragraph (b): amended (with effect on 1 September 2021), on 30 March 2022, by section 263 of the Taxation (Annual Rates for 2021–22, GST, and Remedial Matters) Act 2022 (2022 No 10).

Schedule 1 clause 4(6) grandparented member paragraph (c): inserted (with effect on 1 September 2021), on 30 March 2022, by section 263 of the Taxation (Annual Rates for 2021–22, GST, and Remedial Matters) Act 2022 (2022 No 10).

4A No external financial advantages from funds

(1)

The manager must ensure that the entire value, benefit, or other return derived in respect of the member’s accumulation is credited to the member’s accumulation and is not received as an external financial advantage.

(2)

In this clause, an external financial advantage—

(a)

means any direct or indirect financial advantage payable to or derived by the member or any associated person of the member; and

(b)

includes the value of a reduction or an avoidance of a financial liability (such as a financial advantage obtained by using any part of the member’s accumulation to offset, or to reduce the interest payable on, a loan); but

(c)

to avoid doubt, excludes permitted withdrawals.

(3)

This clause does not prevent minor financial advantages that are incidental or secondary to a KiwiSaver scheme membership from being provided to or in respect of a member, including such advantages in the form of—

(a)

an inducement or incentive or other form of reward to contribute to, or be a member of, the scheme; or

(b)

a reduction or rebate of the fees or commission payable to a financial advice provider, or for financial advice services, that takes into account the member’s accumulation; or

(c)

rewards such as discounts on fees payable in respect of non-KiwiSaver services or products.

(4)

In this clause, associated person has the same meaning as in section 12 of the Financial Markets Conduct Act 2013.

Schedule 1 clause 4A: inserted, on 1 December 2014, by section 106 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 4A(3)(b): amended, on 15 March 2021, by section 98 of the Financial Services Legislation Amendment Act 2019 (2019 No 8).

4B Amounts from Australian complying superannuation schemes

A member may withdraw the amount that was transferred from an Australian complying superannuation scheme (disregarding any positive or negative returns for the purpose of calculating that amount), if the member is 60 years or more and the member’s retirement (as that term is defined in regulation 6.01(7) of the Superannuation Industry (Supervision) Regulations 1994 (Aust), with necessary modification for KiwiSaver scheme manager) is taken to have occurred.

Schedule 1 clause 4B: inserted, on 1 July 2013, by section 189(1) of the Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver, and Remedial Matters) Act 2010 (2010 No 109).

Schedule 1 clause 4B: amended, on 1 December 2014, by section 108(1) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

5 Manager must pay permitted withdrawal as lump sum

(1)

The manager must, at the member’s request, pay a permitted withdrawal as a lump sum.

(2)

Nothing in subclause (1) prevents a member purchasing annuities or a pension from all or part of the member’s accumulation or member’s interest that is withdrawn by that member.

Schedule 1 clause 5 heading: amended, on 1 December 2014, by section 108(2) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 5(1): amended, on 1 December 2014, by section 108(3) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

6 Manager may reasonably require evidence to establish right to make permitted withdrawal

A manager may reasonably require a member who applies to make a permitted withdrawal to provide evidence of the facts necessary to establish the member’s right to make the withdrawal.

Schedule 1 clause 6 heading: amended, on 1 December 2014, by section 108(4) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 6: amended, on 1 December 2014, by section 108(5) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

7 Release of funds required under other enactments

(1)

The manager must comply with the provisions of any enactment that requires the manager to release funds from the KiwiSaver scheme in accordance with that enactment.

(2)

A requirement to release funds from the KiwiSaver scheme under any enactment includes a requirement by order of any court under any enactment (including an order made under section 31 of the Property (Relationships) Act 1976).

Schedule 1 clause 7(1): amended, on 1 December 2014, by section 108(6) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 7(1): amended, on 1 December 2014, by section 108(7) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

8 Withdrawal for purpose of purchase of first home

(1)

This clause applies to a member if the member has not made a withdrawal under this clause before (whether or not from the member’s current KiwiSaver scheme or from a KiwiSaver scheme to which the person previously belonged) and,—

(a)

at least 3 years have expired after the Commissioner received the first contribution in respect of the person (whether or not a contribution in relation to the scheme of which the member is currently a member); or

(ab)
[Repealed]

(b)

the person has been a member of 1 or more KiwiSaver schemes or complying superannuation funds for a combined total period of 3 years or more.

(2)

An amount of contribution that is deducted from salary or wages under this Act is treated, for the purposes of subclause (1)(a), as received by the Commissioner,—

(a)

for employment income information received by the Commissioner that includes the date of the payday on which the deduction was made, on that date; or

(b)

otherwise, on the 15th day of the month in which the deduction was made.

(3)

A member to whom this clause applies may make a withdrawal from the KiwiSaver scheme of which the member is currently a member for the purchase of an estate in land located in New Zealand (whether alone or as a joint tenant or tenant in common) if—

(a)

the purchase is made in the prescribed circumstances; or

(b)

both of the following apply:

(i)

the land is, or is intended to be, the principal place of residence for the member or for the member and members of the member’s family; and

(ii)

the member has not, at any time before applying to make a withdrawal under this clause (whether before or after becoming a member of the KiwiSaver scheme) held an estate in land (whether alone or as a joint tenant or tenant in common); or

(c)

both of the following apply:

(i)

the land is, or is intended to be, the principal place of residence for the member or for the member and members of the member’s family; and

(ii)

the member is a qualifying person under the regulations.

(3B)

A member to whom this clause applies may make a withdrawal from the KiwiSaver scheme of which the member is currently a member for the purchase of an interest in a dwellinghouse on Maori land if—

(a)

the purchase is made in the prescribed circumstances; or

(b)

both of the following apply:

(i)

the dwellinghouse is, or is intended to be, the principal place of residence for the member or for the member and the member’s family; and

(ii)

the member has not, at any time before applying to make a withdrawal under this clause (whether before or after becoming a member of the KiwiSaver scheme), held an estate in land (whether alone or as a joint tenant or tenant in common); or

(c)

both of the following apply:

(i)

the dwellinghouse is, or is intended to be, the principal place of residence for the member or for the member and the member’s family; and

(ii)

the member is a qualifying person under the regulations.

(4)

A member may not make a withdrawal under this clause of more than an amount equal to the member’s accumulation, at the time of the withdrawal, less the total of the following 2 amounts:

(a)

$1,000:

(b)

the amount that was transferred from an Australian complying superannuation scheme (disregarding any positive or negative returns for the purpose of calculating that amount).

(5)

If a person holds an estate in land in any of the following circumstances, that estate must be disregarded for the purposes of subclauses (3)(b)(ii) and (3B)(b)(ii):

(a)

the person holds the estate in land as a bare trustee:

(ab)

the estate in land is a leasehold estate:

(ac)

the estate in land is an interest in Maori land:

(b)

the person holds the estate in land as a trustee who—

(i)

is a discretionary, contingent, or vested beneficiary under the relevant trust; but

(ii)

has no reasonable expectation of being entitled to occupy the land as the principal place of residence for the person or the person’s family until the death of the person who currently occupies the land (the occupier) or the death of the occupier’s survivor.

(6)

In this clause,—

dwellinghouse means a building that is intended to have as its principal use occupation as a private residence

estate means a fee simple estate, a leasehold estate, or a stratum estate

Maori land has the same meaning as in the Te Ture Whenua Maori Act 1993.

(7)

It is a condition of subclauses (3) and (3B) that—

(a)

any withdrawal made under the relevant provision must be paid—

(i)

first, from the member’s accumulation excluding the Crown contribution (disregarding any positive or negative returns for the purpose of calculating the amount of that contribution) paid in respect of the member; and

(ii)

second, from the Crown contribution (including any positive or negative returns for the purpose of calculating the amount of that contribution), less the amount paid under section 226; and

(b)

any withdrawal made under the relevant provision must be paid to a practitioner (within the meaning of section 6 of the Lawyers and Conveyancers Act 2006) acting on behalf of the member; and

(c)

the manager must require from that practitioner, before payment of the withdrawal,—

(i)

a copy of an agreement for the sale and purchase (the agreement) of the estate in land or of the interest in a dwellinghouse on Maori land, showing the member as purchaser; and

(ii)

for an interest in a dwellinghouse on Maori land, evidence of the member’s right to occupy the Maori land; and

(iii)

an undertaking that the agreement is unconditional at the time the manager makes the request or, if the agreement is conditional, an undertaking that—

(A)

payment of any amount of the withdrawal will be held by a stakeholder; and

(B)

the stakeholder is obliged to hold the amount while the agreement is conditional; and

(iv)

if the agreement is unconditional at the time the manager makes the request, an undertaking that the amount will be paid to the vendors as part of the purchase price or will be repaid to the manager on account of the member if settlement of the agreement is not completed in accordance with the agreement by the due date or any extended date; and

(v)

if the agreement is conditional at the time the manager makes the request, an undertaking that—

(A)

the stakeholder is obliged to repay the amount to the practitioner if settlement of the agreement is not completed in accordance with the agreement by the due date or any extended date (non-completion), but excepting non-completion due to the purchaser’s default; and

(B)

the practitioner will repay the amount that the practitioner receives from the stakeholder to the manager on account of the member.

(8)

This clause is subject to the terms of any participation agreement that restricts or prevents the withdrawal of employer vested contributions that are not compulsory employer contributions in relation to the member.

Schedule 1 clause 8(1): substituted, on 6 October 2009, by section 733(1) of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Schedule 1 clause 8(1)(ab): repealed (with effect on 1 April 2015), on 27 May 2015, by section 4 of the KiwiSaver (HomeStart) Amendment Act 2015 (2015 No 53).

Schedule 1 clause 8(1)(b): replaced (with effect on 1 April 2015), on 27 May 2015, by section 4 of the KiwiSaver (HomeStart) Amendment Act 2015 (2015 No 53).

Schedule 1 clause 8(2): replaced, on 1 April 2020, by section 50(1) of the Taxation (KiwiSaver, Student Loans, and Remedial Matters) Act 2020 (2020 No 5).

Schedule 1 clause 8(3): amended, on 1 April 2015, by section 8(2) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 8(3B): inserted, on 1 April 2015, by section 8(3) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 8(4): replaced, on 1 July 2013, by section 189(2) of the Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver, and Remedial Matters) Act 2010 (2010 No 109).

Schedule 1 clause 8(4)(a): replaced (with effect at 2 pm on 21 May 2015), on 27 May 2015, by section 7(1) of the KiwiSaver Budget Measures Act 2015 (2015 No 55).

Schedule 1 clause 8(5): amended, on 1 April 2015, by section 8(5) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 8(5): amended (with effect on 1 July 2010), on 21 December 2010, by section 180(1) of the Taxation (GST and Remedial Matters) Act 2010 (2010 No 130).

Schedule 1 clause 8(5)(ab): inserted (with effect on 1 July 2010), on 21 December 2010, by section 180(2) of the Taxation (GST and Remedial Matters) Act 2010 (2010 No 130).

Schedule 1 clause 8(5)(ac): inserted, on 1 April 2015, by section 8(6) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 8(6): replaced, on 1 April 2015, by section 8(7) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 8(7): replaced, on 1 April 2015, by section 8(7) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 8(7)(a)(ii): replaced (with effect at 2 pm on 21 May 2015), on 27 May 2015, by section 7(2) of the KiwiSaver Budget Measures Act 2015 (2015 No 55).

Schedule 1 clause 8(7)(c): replaced, on 1 June 2015, by section 9 of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 8(8): amended, on 1 April 2008, by section 102(3) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

9 Withdrawal on death

If a member dies, the manager must,—

(a)

on application by the member’s personal representative, pay to that person an amount that is equal to the value of the member’s accumulation at the date on which the application is accepted as part of the member’s estate; or

(b)

if the requirements of section 65 of the Administration Act 1969 are met, pay to the relevant person any sum authorised by that section, subject to that Act.

Schedule 1 clause 9: substituted (with effect on 1 July 2007), on 6 October 2009, by section 733(2) of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Schedule 1 clause 9: amended, on 1 December 2014, by section 108(11) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

10 Withdrawal in cases of significant financial hardship

(1)

If the manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme) is reasonably satisfied that a member is suffering or is likely to suffer from significant financial hardship, the member may, on application to that manager or supervisor in accordance with clause 13, make a significant financial hardship withdrawal in accordance with this clause.

(2)

The amount of that significant financial hardship withdrawal may, subject to the manager’s approval (in the case of a restricted KiwiSaver scheme) or the supervisor’s approval (in the case of any other KiwiSaver scheme) under subclause (3), be up to the value of the member’s accumulation less the amount of the Crown contribution (disregarding any positive or negative returns for the purpose of calculating the amount of the Crown contribution) on the date of withdrawal.

(3)

The manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme)—

(a)

must be reasonably satisfied that reasonable alternative sources of funding have been explored and have been exhausted; and

(b)

may direct that the amount withdrawn be limited to a specified amount that, in the opinion of the manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme), is required to alleviate the particular hardship.

Schedule 1 clause 10(1): replaced, on 1 December 2014, by section 108(12) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 10(2): amended, on 1 December 2014, by section 108(13) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 10(3): amended, on 1 December 2014, by section 108(14) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 10(3)(b): amended, on 1 December 2014, by section 108(15) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

11 Meaning of significant financial hardship

(1)

For the purposes of these rules, significant financial hardship includes significant financial difficulties that arise because of—

(a)

a member’s inability to meet minimum living expenses; or

(b)

a member’s inability to meet mortgage repayments on his or her principal family residence resulting in the mortgagee seeking to enforce the mortgage on the residence; or

(c)

the cost of modifying a residence to meet special needs arising from a disability of a member or a member’s dependant; or

(d)

the cost of medical treatment for an illness or injury of a member or a member’s dependant; or

(e)

the cost of palliative care for a member or a member’s dependant; or

(f)

the cost of a funeral for a member’s dependant; or

(g)

the member suffering from a serious illness.

(2)

In this section, serious illness has the meaning given to it by clause 12(3).

12 Withdrawal in cases of serious illness

(1)

In addition to a withdrawal on the grounds of serious illness under clause 11(1)(g), if the manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme) is reasonably satisfied that a member is suffering from serious illness, the member may, on application to the manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme) in accordance with clause 13, make a serious illness withdrawal in accordance with this clause.

(2)

The amount of that serious illness withdrawal may be up to the value of the member’s accumulation.

(3)

In this clause, serious illness means an injury, illness, or disability—

(a)

that results in the member being totally and permanently unable to engage in work for which he or she is suited by reason of experience, education, or training, or any combination of those things; or

(b)

that poses a serious and imminent risk of death.

Schedule 1 clause 12(1): amended, on 1 December 2014, by section 108(16) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 12(1): amended, on 1 December 2014, by section 108(17) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 12(2): amended, on 19 December 2007, by section 102(4) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

Schedule 1 clause 12(3)(a): amended, on 19 December 2007, by section 102(5) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

12B Withdrawal in cases of life-shortening congenital conditions

(1)

A member may apply under this clause for a withdrawal, in addition to a withdrawal on the grounds of serious illness under clause 11(1)(g) or 12, when the member suffers from a condition that exists from the date of their birth—

(a)

that is identified as a life-shortening congenital condition by a regulation made under section 228(1)(mb) (a listed condition); or

(b)

for which the member has medical evidence to verify that the congenital condition is expected to reduce life expectancy below the New Zealand superannuation qualification age for the member or for persons in general with the condition (a non-listed condition).

(2)

The member may apply under clause 13 for a congenital condition withdrawal to the manager (in the case of a restricted KiwiSaver scheme) or supervisor (in the case of any other KiwiSaver scheme) if,—

(a)

for a listed condition that exists for a person from the date of their birth, the manager or the supervisor, as applicable, is satisfied that a medical certificate issued by a medical practitioner verifies that the member suffers from the condition:

(b)

for a non-listed condition that exists for a person from the date of their birth, the manager or the supervisor, as applicable, is satisfied that a medical certificate issued by a medical practitioner verifies that—

(i)

the condition is a life-shortening congenital condition for the member or for persons in general with the condition; and

(ii)

the member suffers from the condition.

(3)

The member may choose the amount of the congenital condition withdrawal, which may be up to the value of their accumulation.

(4)

For the purposes of the KiwiSaver scheme rules, a member who makes a congenital condition withdrawal is treated as if—

(a)

they are not a grandparented member; and

(b)

they have reached the New Zealand superannuation qualification age referred to in clause 4(1).

(5)

A withdrawal under this clause does not prevent a member continuing in paid employment. However, no Crown contribution or compulsory employer contribution is payable in relation to the member’s continuing contributions.

Schedule 1 clause 12B: inserted, on 1 April 2020, by section 50(2) of the Taxation (KiwiSaver, Student Loans, and Remedial Matters) Act 2020 (2020 No 5).

13 Application for withdrawal for significant financial hardship, serious illness, or life-shortening congenital condition

(1)

The application for a withdrawal under clause 10, 12, or 12B must be in the form required by the manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme).

(1B)

The application for a withdrawal under clause 10 must include a completed statutory declaration in respect of the member’s assets and liabilities.

(1C)

The application by a member for a withdrawal under clause 12B must include—

(a)

a completed statutory declaration by the member to acknowledge that they understand—

(i)

first, that their KiwiSaver funds are to be released to them as if they had reached the New Zealand superannuation qualification age; and

(ii)

secondly, that after the withdrawal of the funds, they are no longer eligible to receive Crown contributions or compulsory employer contributions in relation to their future contributions, if any; and

(b)

a medical certificate issued by a medical practitioner that verifies that the member suffers from—

(i)

a listed condition:

(ii)

a non-listed condition that is a life-shortening congenital condition.

(1D)

For the purposes of subclause (1C)(b)(i) and clause 12B(2), medical practitioner has the meaning given in the definition set out in the Social Security Act 2018, schedule 2.

(2)

The manager (in the case of a restricted KiwiSaver scheme) or the supervisor (in the case of any other KiwiSaver scheme)—

(a)

may require that any medical matter asserted in support of the application for withdrawal be verified by medical evidence:

(b)

may require that any other documents, things, or information produced in support of the application be verified by oath, statutory declaration, or otherwise.

Schedule 1 clause 13 heading: replaced, on 1 April 2020, by section 50(3)(a) of the Taxation (KiwiSaver, Student Loans, and Remedial Matters) Act 2020 (2020 No 5).

Schedule 1 clause 13(1): amended, on 1 April 2020, by section 50(3)(b) of the Taxation (KiwiSaver, Student Loans, and Remedial Matters) Act 2020 (2020 No 5).

Schedule 1 clause 13(1): amended, on 1 December 2014, by section 108(18) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 13(1): amended, on 19 December 2007, by section 102(6) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

Schedule 1 clause 13(1B): inserted, on 19 December 2007, by section 102(7) of the Taxation (KiwiSaver) Act 2007 (2007 No 110).

Schedule 1 clause 13(1C): inserted, on 1 April 2020, by section 50(3)(c) of the Taxation (KiwiSaver, Student Loans, and Remedial Matters) Act 2020 (2020 No 5).

Schedule 1 clause 13(1D): inserted, on 1 April 2020, by section 50(3)(c) of the Taxation (KiwiSaver, Student Loans, and Remedial Matters) Act 2020 (2020 No 5).

Schedule 1 clause 13(2): amended, on 1 December 2014, by section 108(19) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

14 Withdrawal or transfer to foreign scheme in cases of permanent emigration

(1)

Unless clause 14B applies, a member may, on application to the manager, and no earlier than 1 year after the member’s permanent emigration from New Zealand, withdraw an amount equal to the member’s accumulation, at the time of the withdrawal, less the total of the following 2 amounts:

(a)

the amount of the Crown contribution arising from a tax credit under section MK 1 of the Income Tax Act 2007 (disregarding any positive or negative returns for the purpose of calculating the amount of the Crown contribution):

(b)

the amount that was transferred from an Australian complying superannuation scheme (disregarding any positive or negative returns for the purpose of calculating that amount).

(2)

Unless clause 14B applies, a member may, on application to the manager, at any time after the member’s permanent emigration from New Zealand, have the manager transfer to a foreign superannuation scheme authorised for that purpose under regulations made under section 228 the member’s accumulation, less the total of the following 2 amounts:

(a)

the amount of the Crown contribution arising from a tax credit under section MK 1 of the Income Tax Act 2007 (disregarding any positive or negative returns for the purpose of calculating the amount of the Crown contribution):

(b)

the amount that was transferred from an Australian complying superannuation scheme (disregarding any positive or negative returns for the purpose of calculating that amount).

(3)

An application under subclause (1) or (2) must be in the form required by the manager and must include—

(a)

a completed statutory declaration in respect of the member to the effect that the member has permanently emigrated from New Zealand; and

(b)

proof to the satisfaction of the manager—

(i)

of the member’s departure from New Zealand (for example, evidence of confirmed travel arrangements, passport evidence, and evidence of any necessary visas); and

(ii)

that the member has resided at an overseas address at some time during the year following the member’s departure from New Zealand.

(4)

The manager may require that any other documents, things, or information produced in an application under subclause (1) or (2) be verified by oath, statutory declaration, or otherwise.

Schedule 1 clause 14(1): replaced, on 1 July 2013, by section 189(4) of the Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver, and Remedial Matters) Act 2010 (2010 No 109).

Schedule 1 clause 14(1): amended, on 1 April 2015, by section 8(8) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 14(1): amended, on 1 December 2014, by section 108(20) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14(2): replaced, on 1 July 2013, by section 189(4) of the Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver, and Remedial Matters) Act 2010 (2010 No 109).

Schedule 1 clause 14(2): amended, on 1 April 2015, by section 8(9) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 14(2): amended, on 1 December 2014, by section 108(21) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14(2): amended, on 1 December 2014, by section 108(22) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14(3): amended, on 1 December 2014, by section 108(23) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14(3)(b): amended, on 1 December 2014, by section 108(24) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14(4): amended, on 1 December 2014, by section 108(25) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

14B Exceptions to clause 14 for Australian permanent emigration

(1)

This clause applies for a KiwiSaver scheme (but not for a complying superannuation fund) after a member’s permanent emigration to Australia.

(2)

At any time after the member’s permanent emigration to Australia, a member may, on application to the manager, have the manager transfer the member’s accumulation to an Australian complying superannuation scheme.

(3)

As soon as practicable after receiving a satisfactory application, the manager must transfer the whole of the member’s accumulation to the relevant Australian complying superannuation scheme and provide that scheme with any necessary information it reasonably requires.

(4)

An application under subclause (2) must be in the form required by the manager and must include—

(a)

a completed statutory declaration in respect of the member to the effect that the member has permanently emigrated to Australia; and

(b)

proof to the satisfaction of the manager—

(i)

of the member’s departure from New Zealand (see, for examples of proof: clause 14(3)(b)(i)); and

(ii)

that the member has resided at an Australian address at some time following the member’s departure from New Zealand.

(5)

The manager may require that any other documents, things, or information produced in an application under subclause (2) be verified by oath, statutory declaration, or otherwise.

Schedule 1 clause 14B: inserted, on 1 July 2013, by section 189(5) of the Taxation (Annual Rates, Trans-Tasman Savings Portability, KiwiSaver, and Remedial Matters) Act 2010 (2010 No 109).

Schedule 1 clause 14B(1): replaced, on 1 April 2015, by section 8(10) of the Taxation (KiwiSaver HomeStart and Remedial Matters) Act 2015 (2015 No 40).

Schedule 1 clause 14B(2): amended, on 1 December 2014, by section 108(27) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14B(3): amended, on 1 December 2014, by section 108(28) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14B(4): amended, on 1 December 2014, by section 108(29) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14B(4)(b): amended, on 1 December 2014, by section 108(30) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 14B(5): amended, on 1 December 2014, by section 108(31) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

14C Withdrawal to meet tax liability on foreign superannuation withdrawal

(1)

A member may, on application to the trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme), withdraw an amount for the payment of the member’s liability for—

(a)

tax, other than interest or penalties, arising under the Income Tax Act 2007 from the member’s withdrawal of an interest in a foreign superannuation scheme and conversion of the interest into an interest in a KiwiSaver scheme:

(b)

repayment obligations arising under the Student Loan Scheme Act 2011 from the member’s withdrawal of an interest in a foreign superannuation scheme and conversion of the interest into an interest in a KiwiSaver scheme.

(2)

The amount withdrawn under—

(a)

subclause (1)(a) may not exceed the lesser of—

(i)

the member’s liability for tax referred to in that paragraph:

(ii)

the member’s liability for terminal tax in the tax year to which the tax relates:

(b)

subclause (1)(b) may not exceed the member’s repayment obligations referred to in that paragraph.

(3)

An amount withdrawn under subclause (1) may not exceed the value at the time of the withdrawal of the member’s accumulation less the amount of the Crown contribution.

(4)

An application under subclause (1) must—

(a)

be made within the period of 24 months beginning from the end of the month in which the liability of the member for tax or student loan repayments is assessed; and

(b)

be in the form required by the trustees or manager (as the case may be); and

(c)

must include a completed statutory declaration giving the relevant details of the foreign superannuation withdrawal, the reinvestment, and the resulting liability of the member for tax under the Income Tax Act 2007; and

(d)

must include any documents and other information that may be required by the trustees or manager (as the case may be) in support of the statutory declaration.

(5)

The trustees (in the case of a restricted KiwiSaver scheme) or the manager (in the case of any other KiwiSaver scheme) must—

(a)

provide to the Commissioner of Inland Revenue, in a form satisfactory to the Commissioner, the details of any withdrawal made by a member under subclause (1); and

(b)

if payment to a person other than the member is possible, pay to the Commissioner the amount of the withdrawal.

Schedule 1 clause 14C: inserted, on 1 April 2014, by section 140(1) of the Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Act 2014 (2014 No 4).

15 Savings suspension

An employee member may, at any time, take a savings suspension in accordance with subpart 4 of Part 3.

Schedule 1 clause 15 heading: replaced, on 1 April 2019, by section 321 of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

Schedule 1 clause 15: amended, on 1 April 2019, by section 321 of the Taxation (Annual Rates for 2018–19, Modernising Tax Administration, and Remedial Matters) Act 2019 (2019 No 5).

16 Transfer of members

(1)

A member may, at any time during that person’s membership of a KiwiSaver scheme, on application to the manager, apply to have the manager transfer the member’s accumulation to another KiwiSaver scheme.

(2)

On application by a member, the manager must, if the other KiwiSaver scheme indicates it will accept that person as a member, transfer the member’s accumulation to the other KiwiSaver scheme in accordance with subpart 3 of Part 2.

(3)

A member may, at any time during that person’s membership of a KiwiSaver scheme, be transferred to another KiwiSaver scheme in the circumstances provided for in, and in accordance with, this Act.

Schedule 1 clause 16(1): amended, on 1 December 2014, by section 108(32) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

Schedule 1 clause 16(2): amended, on 1 December 2014, by section 108(33) of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).

17 Crown contributions: tax credits

Despite rules 4 to 14C, the amount of the Crown contribution arising from a tax credit under section MK 1 of the Income Tax Act 2007 (disregarding any positive or negative returns for the purposes of calculating that amount of Crown contribution) may not be withdrawn—

(a)

before the member, the personal representative, or the relevant person under section 65 of the Administration Act 1969 (as the case may be) gives the provider a statutory declaration stating, to the best of their knowledge, the periods for which the member has their principal place of residence in New Zealand; and

(b)

to the extent to which the provider has notice that their claim for a tax credit is wrong, because they have got the time for which the member meets the requirements of section MK 2 of the Income Tax Act 2007 wrong.

Schedule 1 clause 17: added, on 1 July 2007, by section 69(3) of the Taxation (KiwiSaver and Company Tax Rate Amendments) Act 2007 (2007 No 19).

Schedule 1 clause 17: amended, on 27 February 2014, by section 140(2) of the Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Act 2014 (2014 No 4).

Schedule 1 clause 17: amended (with effect on 1 April 2008), on 6 October 2009, by section 733(5)(a) of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Schedule 1 clause 17(a): substituted (with effect on 1 July 2007), on 6 October 2009, by section 733(4) of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Schedule 1 clause 17(a): amended, on 1 May 2011, by section 54(13) of the KiwiSaver Amendment Act 2011 (2011 No 8).

Schedule 1 clause 17(a): amended (with effect on 1 April 2008), on 6 October 2009, by section 733(5)(b) of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Schedule 1 clause 17(b): amended, on 1 May 2011, by section 54(14) of the KiwiSaver Amendment Act 2011 (2011 No 8).

Schedule 1 clause 17(b): amended (with effect on 1 April 2008), on 6 October 2009, by section 733(5)(c) of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).