• Determining if you need to pay Division 293 tax

    You're liable to pay Division 293 tax if you have taxable contributions for an income year.

    If your income – for surcharge purposes, plus your low-tax contributions – is greater than $300,000, the taxable contributions will be the lesser of the low-tax contributions and the amount above the $300,000 threshold.

    From 1 July 2017 the Division 293 threshold will be $250,000.

    Income for surcharge purposes

    Division 293 tax is calculated based on your income for surcharge purposes, which is similar to the calculation for income for Medicare levy surcharge purposes. This information is collected from your income tax return.

    For Division 293 tax purposes, we disregard any reportable super contributions reported on your income tax return – these contributions are included in another part of the calculation.

    Low-tax contributions

    Division 293 tax uses contribution information reported on member contribution statements (MCS) and the self-managed super fund (SMSF) annual return, which are lodged to us via your super fund, to determine the total taxable super contributions.

    The contributions counted for Division 293 tax purposes generally include:

    • employer contributed amounts
    • other family and friend contributions
    • assessable foreign fund amounts
    • assessable amounts transferred from reserves
    • personal contributions for which you have been allowed a deduction
    • defined benefit contributions.

    These contributions are concessionally taxed at 15% within the super fund.

    The total taxable super contributions amount is not the same as low-tax contributions. To calculate which contributions are the low-tax contributions, we disregard any contributions that attract certain additional tax.

    For the 2012–13 year, we disregard contributions subject to excess concessional contributions tax, which equates to an additional 31.5% on top of the 15% tax paid by the super fund.

    For the 2013–14 year and onwards, excess concessional contributions are included in your individual assessable income and taxed at your marginal tax rate (and are liable for the excess concessional contributions charge) on top of the 15% tax paid by the super fund. In these circumstances, applying the additional 15% Division 293 tax to those contributions would not be fair.

    As a result, low-tax contributions are generally equal to total taxable super contributions (concessionally taxed in the fund) minus excess concessional contributions.

    From 2019-20 financial year, if you exceed your general concessional contributions cap and are able to increase your concessional contributions cap by the utilising unused carry forward concessional contributions, this will increase your low-tax contributions.

    How we calculate Division 293 tax

    We calculate your Division 293 tax amount by following these steps:

    1. Determining your income for surcharge purposes.
    2. Determining your low-tax contributions.
    3. Adding your income for surcharge purposes and your low-tax contributions.
    4. If the combined figure is greater than $300,000 or $250,000 from 1 July 2017, you have taxable contributions. Taxable contributions will be the lesser of either        
      1. the low-tax contributions
      2. the amount above the $300,000 or $250,000 from 1 July 2017 threshold.
    5. The tax applied will be 15% of the taxable contributions.

    Modifications for defined benefits

    There is a modification to the way low-tax contributions are calculated for defined benefit accounts.

    1. Add together all concessionally taxed contributions made to an accumulation account in a super fund, including an accumulation account in a constitutionally protected fund (CPF).
    2. Disregard any excess concessional contributions exceeding the concessional contributions cap for the year.
    3. Add the defined benefit contributions (as reported on the MCS).

    Modifications for state higher level office holders

    If you're classified as a state higher level office holder who makes certain super contributions to a constitutionally protected fund (CPF), you're exempt from having Division 293 tax applied to those super contributions.

    State higher level office holders

    Under the regulations, you're state higher level officer holder if you are:

    • a minister of the government of a state
    • a member of the staff of a minister of the government of a state
    • the governor of a state
    • a member of staff of the governor of a state
    • a member of the parliament of a state
    • the clerk of a house of the parliament of a state
    • the head of a department of the public service of a state or a statutory office holder of equivalent seniority, including a statutory office holder who is the head of an instrumentality or agency of a state
    • a judge, justice or magistrate of the court of a state.

    If at any time in the income year, you fall within the category of a state higher level office holder you will be treated as being a state higher level office holder for the entire income year.

    Constitutionally protected funds

    Constitutionally protected funds (CPFs) are untaxed super funds that don't pay income tax on contributions or earnings they receive.

    CPFs are operated by some state governments in Australia for their employees.

    Under the Australian Constitution, state government assets can't be taxed by the Commonwealth, so different arrangements apply to concessional contributions to CPFs.

    Exempt super contributions

    For state higher level office holders, all contributions made to a CPF, other than salary packaged contributions, are excluded from the low-tax contribution amount when determining the taxable contributions, but included when determining whether the $300,000 threshold was exceeded (or $250,000 from 1 July 2017).

    Salary packaged contributions are made because you agreed with your employer for the contribution to be made and, in return, withholding payments are reduced.

    Modifications for Commonwealth judges

    If you're a justice of the High Court, or justice or judge of a court created by the parliament, who makes super contributions to a super fund established under the Judges’ Pensions Act 1968, you're exempt from having Division 293 tax applied to those contributions.

    Contributions made to one of these judges’ funds are excluded from the low-tax contribution amount when determining the taxable contributions, but included when determining whether the threshold has been exceeded.

    Modifications for refunded excess concessional contributions

    If you accept a refund of excess concessional contributions offer for the 2012-13 year, the amount released under this offer is excluded from the excess concessional contributions used to calculate excess concessional contribution tax.

    To calculate low-tax contributions, the excess concessional contributions disregarded for the excess contributions tax continue to be treated as excess concessional contributions and are deducted from low-tax contributed amounts. This prevents the refunded excess concessional contributions from being subject to Division 293 tax.

      Last modified: 01 Dec 2016QC 36272