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  • Advice under development – superannuation issues

    We are developing advice and guidance on the following superannuation issues.

    [3938] Superannuation income stream

    Title
    Addendum to Taxation Ruling TR 2013/5
    Income tax: when a superannuation income stream commences and ceases

    Purpose
    TR 2013/5 has been impacted by the legislative amendments flowing from the 2016 Budget announcement of the transfer balance cap, which limits the superannuation interests that a person can have in retirement phase. The Addendum will update the legislative references in the Ruling as a result of these amendments as well as address other amendments – including to the definition of superannuation income stream benefit.

    Expected completion
    Mid 2022

    Comments
    Completion of this Addendum has been delayed to enable further consideration of issues relating to reversionary pensions.

    Contact
    PAGSEO@ato.gov.au

    [3971] Self-managed super funds – rectification directions

    Title
    Final Law Administration Practice Statement
    Rectification direction for contraventions to the Superannuation Industry (Supervision) Act 1993

    Purpose
    This Practice Statement will provide guidance to ATO staff on the relevant matters to be considered when deciding whether to give a trustee or a director of a body corporate that is a trustee of a self-managed super fund a written rectification direction under section 159 of the Superannuation Industry (Supervision) Act 1993.

    Expected completion
    Mid 2022

    Comments
    Finalisation of the practice statement has been delayed due to other priority work.

    Contact
    PAGSEO@ato.gov.au

    [3972] Self-managed super funds – education directions

    Title
    Final Law Administration Practice Statement
    Education direction for contraventions of the Superannuation Industry (Supervision) Act 1993

    Purpose
    This Practice Statement will provide guidance to ATO staff on the relevant matters to be considered when deciding whether to give a trustee or a director of a body corporate that is a trustee of a self-managed super fund a written education direction under section 160 of the Superannuation Industry (Supervision) Act 1993.

    Expected completion
    Mid 2022

    Comments
    Finalisation of the Practice Statement has been delayed due to other priority work.

    Contact
    PAGSEO@ato.gov.au

    [3975] Super benefits in breach of rules

    Title
    Final Law Administration Practice Statement
    Exercising the Commissioner’s discretion where superannuation benefits are received in breach of legislative requirements

    Purpose
    This Practice Statement will provide guidelines on the Commissioner's discretion as set out in subsection 304-10(4) of the Income Tax Assessment Act 1997, which may be applied where superannuation benefits are received in breach of legislative requirements.

    Expected completion
    June 2022

    Comments
    Draft PS LA 2021/D3 published on 15 December 2021. Comments period closed on 4 February 2022.

    The draft Practice Statement complements draft Taxation Determination Law Administration Practice Statement TD 2021/D6, which also published on 15 December 2021. We are considering the comments received before finalising the practice statement.

    Contact
    PAGSEO@ato.gov.au

    Title
    Final Taxation Determination
    Income tax: how will a superannuation benefit be treated for income tax purposes where the Commissioner determines it would be unreasonable for it to be included in an individual’s assessable income under subsection 304-10(4) of the Income Tax Assessment Act 1997?

    Purpose
    This Determination will set out the Commissioner’s view on the income tax treatment of a superannuation benefit received by an individual otherwise than in accordance with the payment standards prescribed under subsection 31(1) of the Superannuation Industry (Supervision) Act 1993, where the Commissioner exercises the discretion contained in subsection 304-10(4) of the Income Tax Assessment Act 1997.

    Expected completion
    June 2022

    Comments
    Draft TD 2021/D6 published on 15 December 2021. Comments period closed on 4 February 2022.

    The draft Determination complements draft Law Administration Practice Statement PS LA 2021/D3 , which also published on 15 December 2021. We are considering the comments received before finalising our position.

    Contact
    PAGSEO@ato.gov.au

    [3984] Non-arm's length expenditure

    Title
    Update to Taxation Ruling TR 2010/1
    Income tax: superannuation contributions

    Purpose
    The update to TR 2010/1 explains the interactions between the non-arm's length income provisions and the rules concerning superannuation contributions.

    Expected completion
    Mid 2022

    Comments
    The draft update to TR 2010/1DC published on 28 July 2021. Comments period closed on 27 August 2021.

    Appendix 2 of this Ruling sets out the Commissioner’s proposed compliance approach for the 2018–19 and later income years in determining when a contribution has been made to the superannuation provider where the non-arm’s length income rules apply. It should be read in conjunction with Law Companion Ruling LCR 2021/2 Non-arm’s length income – expenditure incurred under a non-arm’s length arrangement.

    The Ruling also contains updates to reflect the removal of the maximum earnings test for the purpose of deducting personal contributions, which commenced from 1 July 2017.

    Contact
    PAGSEO@ato.gov.au

    [4002] Self-managed super funds – interests in another entity

    Title
    Draft SMSF Determination
    What constitutes an ‘interest in another entity’ for the purposes of Division 13.3A of Superannuation Industry (Supervision) Regulations 1994?

    Purpose
    This draft Determination is being developed to consolidate and update ATO interpretative decisions ATO ID 2008/51 and ATO ID 2008/52.

    Expected completion
    June 2022

    Comments
    This product is currently on hold due to other priorities but will be resumed shortly with an expected publication date of June 2022.

    Contact
    PAGSEO@ato.gov.au

    [4042] Ordinary meaning of the term 'employee'

    Title
    Decision impact statement on Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

    Purpose
    This Decision impact statement outlines the ATO’s response to the High Court's decision which concerns whether the applicant was an employee of a labour hire company for the purposes of the Fair Work Act 2009. While not a party to the litigation, the decision of the High Court is relevant to legislation administered by the Commissioner involving the ordinary meaning of the term ‘employee’.

    Expected completion
    To be advised

    Comments
    The Decision impact statement on Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd published on 31 March 2022. Comments close on 6 May 2022.

    Contact
    Benjamin Murphy, Superannuation and Employer Obligations
    Phone: (03) 9937 9977
    Benjamin.Murphy@ato.gov.au

    Last modified: 05 Apr 2022QC 50320