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What is meant by the term 'legally qualified medical practitioners' within the definition of 'disability superannuation benefit' in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997)?

The term 'legally qualified medical practitioners', within the definition of 'disability superannuation benefit' in subsection 995-1(1) of ITAA 1997, is not a defined term in taxation legislation. The Commissioner relies on its ordinary meaning and takes the view that 'legally qualified medical practitioners' are persons who have general or specialist registration with the Medical Board of Australia (MBA).

A superannuation fund member has applied to the fund trustee, under the permanent incapacity condition of release, to receive a superannuation lump sum benefit.

In working out the tax to be withheld from the payment of the superannuation lump sum, [1] the trustee needs to consider whether the benefit paid will be a 'disability superannuation benefit' for the purposes of section 307-145 of the ITAA 1997.

The term 'disability superannuation benefit' in subsection 307-145(1) of the ITAA 1997 is defined in subsection 995-1(1) of that Act as follows: disability superannuation benefit means a *superannuation benefit if: (a) the benefit is paid to an individual because he or she suffers from ill-health (whether physical or mental); and (b) 2 legally qualified medical practitioners have certified that, because of the ill-health, it is unlikely that the individual can ever be *gainfully employed in a capacity for which he or she is reasonably qualified because of education, experience or training.

The member's application includes certification from two health practitioners. Each certification states that, due to ill health, it is unlikely that the member can ever be gainfully employed in a capacity for which she is reasonably qualified because of education, experience or training. The health practitioners are not medical doctors.

The Commissioner considers that in this context the term 'legally qualified medical practitioners' should be construed as referring to those who are legally qualified under the relevant legislation to practice medicine in Australia: see Re VBI and Federal Commissioner of Taxation (Case 9/2005) [2005] AATA 683; 2005 ATC 193 ; (2005) 52 ATR 1197 at ATC 196. [2]

The relevant law governing who is qualified to practice medicine in Australia is the Health Practitioner Regulation National Law (the National Law) in force in each state and territory of Australia. [3]

Section 5 of the National Law [4] defines the term 'medical practitioner' as follows: medical practitioner means a person who is registered under this Law in the medical profession.

The medical profession is but one health profession recognised under the National Law. Other health professions include Chinese medicine, chiropractic, dental, nursing and midwifery, pharmacy and psychology. [5] Section 113 of the National Law states that; a person must not use a title of a health profession unless they are registered in that profession. Only members of the medical profession can use the title of medical practitioner.

Section 31 of the National Law establishes a number of National Health Practitioner Boards (National Boards). The Medical Board of Australia (MBA) is the National Board for the medical profession. Section 35 of the National Law lists the functions of National Boards - one of these being the registration of suitably qualified and competent persons in each health profession. Under subsection 40(3) of the National Law, each National Board must publish registration standards, codes or guidelines on its website.

There are six categories of registration for health professionals under Part 7 of the National Law: • general registration • specialist registration • provisional registration • limited registration • non-practising registration • student registration.

Each type of registration, as it relates to the medical profession, is described on the MBA's internet site and is covered by registration standards, codes and guidelines.

In a Statement dated 14 March 2012 the MBA provided guidelines for registration which stated relevantly: As the primary purpose of registration is to protect the public, medical practitioners should be registered if they have any direct clinical contact with patients or provide treatment or opinion about individuals.

The requirement in paragraph (b) of the definition of 'disability superannuation benefit', for 2 legally qualified medical practitioners to provide certification about individuals, involves providing an opinion about those individuals.

It is the Commissioner's view that persons who have general or specialist registration with the MBA are legally qualified medical practitioners for the purposes of the definition of 'disability superannuation benefit'. Also, for a benefit to be a disability superannuation benefit, certification must have been provided by 2 medical practitioners as opposed to other types of health practitioners.