Hong Kong Ordinances

INLAND REVENUE ORDINANCE - SCHEDULE 9

TRANSITIONAL PROVISIONS RELATING TO THE INLAND REVENUE (AMENDMENT) (NO. 5) ORDINANCE 1993

[section 89]

1. In this Schedule- "amending Ordinance" (修訂條例) means the Inland
Revenue (Amendment) (No. 5) Ordinance 1993 (76 of 1993); "retirement scheme"
(退休計劃) means a retirement scheme as defined in section  2 (1) prior to
the commencement of section 2 of the amending Ordinance.
 
2. Notwithstanding
the repeal of section 87A by the amending Ordinance, where an application for
approval of a retirement scheme under that section was received by the
Commissioner before such repeal, the Commissioner may approve the scheme as if
that section has not been repealed, and where such approval has been given the
scheme shall be deemed to have been approved by the Commissioner under that
section immediately prior to its repeal by the amending Ordinance. 

3. The approval given by the Commissioner to any retirement scheme under section 87A
prior to its repeal by the amending Ordinance shall-

   (a)  continue to be effective unless and until it is-

        (i)    deemed to have been withdrawn under subparagraph (b); or

        (ii)   withdrawn under paragraph 4;

   (b)  be deemed to have been withdrawn-

        (i)    upon the scheme becoming a recognized occupational retirement 
               scheme other than by virtue of paragraph (a) of the definition
               of "recognized occupational retirement scheme"
               (認可職業退休計劃) in section 2(1);

        (ii)   where an application is made under section 7 or 15 of the
               Occupational Retirement Schemes Ordinance ( Cap 426) in respect
               of the scheme before the commencement of section 3 of that
               Ordinance but the application has not been disposed of prior to
               the commencement of that section, on the date on which the
               application is finally disposed of;

        (iii)  where an application made under section 7 or 15 of the
               Occupational Retirement Schemes Ordinance ( Cap 426) in respect
               of the scheme is rejected and an appeal (if any) against such
               rejection is dismissed before the commencement of section 3 of
               that Ordinance, on that date of commencement; or

        (iv)   where no application for registration or exemption under the
               Occupational Retirement Schemes Ordinance ( Cap 426) has been
               made prior to the date of commencement of section 3 of that
               Ordinance, on that date of commencement. 

4. The Commissioner may withdraw the approval given to any retirement scheme under
section 87A prior to its repeal by the amending Ordinance if
any term or condition of the scheme is altered unless-

   (a)  the alteration is made solely to secure the issue of an exemption
        certificate in respect of the scheme or registration of the scheme
        under section 7 or 18 of the Occupational Retirement Schemes 
        Ordinance ( Cap 426); or

   (b)  in the case of any other alteration, the Commissioner is notified in
        writing of such alteration within 1 month after it is made and the
        scheme, as altered, complies substantially with the requirements set
        out in paragraph 7. 

5. Where an application is made under section 7(1)
or 15 of the Occupational Retirement Schemes Ordinance ( Cap 426) in
respect of a retirement scheme which was approved for the time being
by the Commissioner under section 87A before its repeal by the
amending Ordinance, the employer who operates the scheme shall as soon
as reasonably practicable after the determination of the application
or appeal (if any) give a notice in writing to the Commissioner of the
result of the application and, where an appeal has been made against
the refusal of such application under section 19 of the
Occupational Retirement  Schemes Ordinance ( Cap 426), the result of
such appeal. 

6. Section 17(1)(j) applies to a retirement scheme as
defined in section 2(1) prior to the commencement of section 2 of the
amending Ordinance. 

7. The requirements referred to in paragraph 4(b)
        are-

   (a)  the retirement scheme shall be exclusively for the benefit of the
        employee or employees and of the spouse, children, surviving
        dependants, or legal personal representatives of an employee;

   (b)  each employee concerned shall be entitled to defined benefits and the
        terms and conditions of the retirement scheme shall have been made
        known to all the employees concerned;

   (c)  the benefits afforded by the retirement scheme shall accrue only-

        (i)    on retirement from the service of the employer at some
               specified age of not less than 45 years; or

        (ii)   on retirement after some specified period of service with the
               employer of not less than 10 years; or

        (iii)  on attaining the age of 60 years or some specified age for
               retirement whichever is the later; or

        (iv)   on earlier incapacity or death: Provided where, however, the
               retirement scheme provides for proportionate or reduced
               benefits in the event of an employee leaving the employer's
               service prior to attaining the specified age or completing the
               specified period of service, the provision for such benefits
               shall not in itself disqualify the scheme from retaining the
               approved status;

   (d)  the nature of the benefits afforded by the retirement scheme shall be
        the same in relation to all the persons to whom the scheme relates but
        a scheme relating to more than one class of employee may be regarded
        as so many separate schemes for this purposes;

   (e)  where the retirement scheme is conducted by a third party to whom the
        employer makes periodical contributions, the diversion of such
        contributions to any purposes (other than those of the scheme) and the
        refund of such contributions to the employer shall, except with the
        consent of the Commissioner and subject to subparagraph (f), be
        prohibited;

   (f)  the employer shall have no lien on any sum or other benefit to which
        the employee would be entitled under the retirement scheme except-

        (i)    to the extent that the employer has suffered a loss due to a
               dishonest act committed by the employee; or

        (ii)   to the extent of a debt acknowledged in writing by the employee
               as owing to the employer. (Added 76 of 1993 s. 11)