• Funds: starting and stopping a pension

    If you're a trustee of a self-managed super fund (SMSF), there are some things you need to consider when commencing or stopping a superannuation (super) income stream, or pension.

    When we say SMSFs, we are including former SMSFs unless otherwise indicated.

    This information applies to taxed, complying super funds which commence a super income stream in the form of an account-based pension, including a transition to retirement income stream (TRIS), on or after 1 July 2007.

    Account-based pensions

    TR 2013/5External Link: Income Tax: when a superannuation income stream commences and ceases provides information about paying or considering paying an account-based pension to a member.

    It focuses on when a super income stream commences and ceases and when a super income stream is payable. These are important for trustees when determining:

    • whether the fund can apply the exempt current pension income (ECPI) provisions
    • the income tax treatment applicable to payments from the fund, including the correct calculation of the tax free and taxable components.

    See also:

    Super income stream

    A super income stream is an income stream that's a pension according to the Superannuation Industry Regulations (SIS Regulations).

    We use:

    • 'pension' when referring to the operation of the Superannuation Industry (Supervision) Act 1993 (SIS Act) or SIS Regulations
    • 'super income stream' when referring to the operation of the income tax laws.

    An income stream can't be a pension in accordance with the SIS Regulations unless it meets two fundamental requirements:

    • payment occurs at least annually
    • a minimum amount is paid to the member each year (for an account-based pension).

    A super income stream exists when all of the following apply:

    • a member is entitled to a series of payments that relate to each other
    • the payments are periodic, whether paid annually or more frequently
    • the payments are made over an identifiable period of time
    • the pension standards of the SIS Regulations have been met.

    A liability to make a single payment for one year is not a series of payments and will not satisfy the requirements of being a super income stream.

    Creating a separate superannuation interest in a SMSF

    Once a super income stream commences, you're required to treat the amount supporting the income stream as a separate interest in accordance with the income tax laws.

    The value of the separate interest, including the amount of its tax free and taxable components, must be determined when the super income stream commences. The proportions of the tax components of this separate interest, will be the same as the proportions for the tax components of the member’s original non-pension interest just prior to the commencement of the income stream. This prevents members from choosing which tax components they wish to start a super income stream with.

    The taxable and tax free components of any pension payment must have the same proportions as those determined for the tax components of the separate interest that supports the pension when the pension commenced.

    See also:

    Value of the assets supporting a pension

    Before the commencement of a pension, you must establish the value of the super benefits that are to support the pension. This means the market value of the assets supporting the pension need to be determined on the commencement day of the pension. Similar to valuing assets for the purpose of financial reports, the valuation needs to be based on objective and supportable data.

    A reasonable estimate of the value of the account balance can be used when a pension is started part way through the year.

    See also:

    Running a pension

    Super pension standards

    Once an account-based pension commences, you must ensure the pension standards in the SIS Regulations are met. This includes meeting the minimum pension payment requirements.

    If the pension standards are not met in an income year, both of the following apply:

    • a super income stream ceases for income tax purposes
    • we consider the trustee has not been paying an income stream at any time during the year.

    You should also maintain appropriate records that reflect the value of the pension at commencement, any benefit (pension) payments made and the earnings from assets set aside to support the pension.

    See also:

    Minimum pension payment requirements

    A general characteristic of an account-based pension is the need to pay an annual minimum pension amount.

    The minimum amount that has to be paid from the pension account depends on several factors including:

    • the recipient's age
    • their account balance
    • the commencement date of the pension.

    If the pension commences on a day other than 1 July, the minimum amount for the first year is to be worked out proportionately to the number of days remaining in the financial year, including the start day.

    If the commencement day of the pension is on or after 1 June in the financial year, no payment is required to be made in that financial year.

    A payment made from an account-based pension, which would otherwise satisfy the minimum annual pension payment requirements, will continue to be treated as such. This is even if a member elects to have the payment treated as a super lump sum under s 995-1.03 of the income tax regulations.

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    Can a partial commutation payment counts towards the annual minimum pension payment?

    Yes, a partial commutation payment that is not rolled over (so not transferred to another super fund) can count towards the annual minimum pension payment amount.

    A partial commutation occurs when a member getting a pension requests to withdraw a lump sum amount less than their total pension entitlement. As there's still an obligation to continue to pay pension benefits, a partial commutation doesn't result in the cessation of the pension.

    A partial commutation payment counts towards the minimum annual amount, unless it is rolled over within the super system or paid directly to another super fund.

    The taxable and tax free components of any partial commutation payment must have the same proportions as those determined for the components of the separate interest that supported the pension when the pension commenced.

    Failure to consider the commutation restrictions that apply to a TRIS may result in a breach of the payment standards with income tax consequences for the member and the fund.

    Can an in-specie partial commutation count towards the annual minimum pension payment?

    Yes. The payment that results from a partial commutation is a lump sum for the purposes of the super laws and a lump sum payment includes a payment made by way of an asset transfer, known as an in-specie payment.

    This means a partial commutation payment that'snot rolled over counts towards the annual minimum pension amount regardless of whether the payment is made in cash or in specie.

    Trustees need to be mindful of the governing rules of the fund and that the transfer of an asset of the SMSF will constitute a Capital Gains Tax (CGT) event with possible taxation implications for the fund.

    Example: Partial commutation

    Madeline, a member of the Spring SMSF, is receiving an account-based pension. The balance of her pension account on 1 July 2011 was $400,000. Madeline is usually able to meet her living expenses from the minimum amount required to be paid from her pension account.

    On 1 November 2011, Madeline advises the other trustees of the Spring SMSF and requests, in accordance with the governing rules of the fund, she would like to be paid a lump sum of $50,000. This amount is more than the minimum amount the fund is required to pay her for the year and Madeline indicates that she will not require any other payment of the pension for the year.

    The partial commutation is paid on 15 November 2011 by the transfer of shares to the value of $50,000 from the fund.

    As Madeline’s pension did not cease as a result of the partial commutation and the amount was not rolled over, the $50,000 in-specie transfer counts towards the minimum annual amount she is required to be paid in that financial year.

    This example does not address any CGT consequences for the fund.

    End of example

    Can a full commutation count towards the minimum pension payment?

    No. A full commutation takes effect as soon as your liability as trustee to pay periodic pension payments to a member has been substituted in full with a liability to pay the member a lump sum instead. The account-based pension therefore ceases at this time.

    The liability to pay the lump sum arises as a consequence of the full commutation taking effect and therefore the super income stream ceases before the time the lump sum payment to the member is made.

    As the payment of the commutation lump sum is made after the cessation of the account-based pension it cannot count towards the minimum annual pension amount.

    In order to meet the minimum annual pension requirements up to the time the pension ceases as a result of a full commutation, you, as trustee, should ensure that the required minimum annual pension amount has been paid as a separate payment (or payments) prior to the lump sum payment resulting from the commutation being made.

    See also:

    Maximum pension payment requirements for a TRIS

    A TRIS needs to meet the standards of an ordinary account-based income stream.

    Additionally, the SIS Regulations prohibit the total amount of payments, excluding partial commutation payments, made from a TRIS in a financial year to exceed 10% of the pension account balance unless the member has satisfied a condition of release that has a nil cashing restriction.

    Where a fund exceeds the maximum annual payment limit for a TRIS in a financial year, the super income stream is taken to have ceased at the start of that year for income tax purposes.

    See also:

    What are the tax implications once the trustee starts paying a super income stream to a member?

    Once a complying super fund starts to pay a super income stream, it may be entitled to exempt a portion of the income earned from the fund's assets that are supporting the income stream until such time as the pension ceases. This is referred to as ECPI.

    ECPI does not include assessable contributions or non-arm's length income.

    See also:

    There are two ways of working out the fund's ECPI:

    • The trustee segregates assets used to support the super income stream.
    • The trustee can exempt a portion of the fund’s total income that reflects the proportion of the fund’s super liabilities that are current pension liabilities. The value of the fund’s super liabilities and current pension liabilities must be certified by an actuary.

    When starting a super income stream, the trustee will need to consider how the ECPI will be worked out. Should an actuarial certificate be required this must be obtained by the trustee before lodgment of the Self-managed superannuation fund annual return (SAR).

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    If the trustee has started paying a pension to a member and they receive a contribution for the same member, can they add it to the member's pension account?

    A contribution received after a pension has started cannot be added to the capital supporting the pension. All contributions intended to form the capital of the pension must be made before the pension starts

    Ceasing a pension

    The most common circumstances for a pension ceasing include:

    Pension capital is exhausted

    A super income stream ceases as no super income stream benefits are payable when the capital supporting the pension has been reduced to nil, and the member's right to have any other amounts applied (other than by way of contribution or roll over) to their superannuation interest has been exhausted.

    For an account-based pension, the pension ceases when the money funding the pension has run out.

    Failure to meet the superannuation pension standards

    If a fund fails to meet the required super pension standards for an account-based pension in an income year, the super income stream is taken to have ceased at the start of that income year for income tax purposes.

    From the start of the income year, the member’s account is no longer taken to be supporting a super income stream and any payments made during the year will be super lump sums for income tax purposes and lump sums for SIS Regulations purposes.

    This also means the fund will not be entitled to treat income or capital gains as ECPI for the year.

    When a new super income stream commences, you as trustee will be required to recalculate the tax-free and taxable components of the new pension.

    One of the most common reasons for not meeting the pension standards is failure by funds to meet the minimum annual pension payment requirements.

    There are limited circumstances where the Commissioner will allow a fund to claim ECPI even though the income stream ceased because of the failure to pay the minimum amount of pension.

    We have published a Q&A on our website to highlight the conditions that would need to be satisfied to allow a fund to continue to claim ECPI, where a fund fails to meet the minimum pension payment requirements in an income year.

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    Pension is fully commuted

    A super income stream ceases when a request from a member or a dependant beneficiary to fully commute their entitlements to future super income stream benefits for an entitlement to a lump sum takes effect.

    A payment resulting from a full commutation can't count towards the required minimum annual pension payment amount.

    The taxable and tax free components of the commutation payment will have the same proportions as those determined for the components of the separate interest that supported the pension when the pension commenced.

    Before fully commuting a member’s pension, ensure that all minimum annual pension payments are made.

    You must also consider the more restrictive commutation rules that apply to TRIS.

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    Example: Minimum payment prior to full commutation

    Andre is a member of the Summa SMSF and is in receipt of an account-based pension.

    On 1 November 2011 Andre advises all trustees of the Summa SMSF, in accordance with the governing rules of the fund that he wishes to fully commute his account-based pension. The balance of his pension at the time is $60,000.

    On 15 November, the trustees transfer assets to him to the value of $50,000 in satisfaction of the lump sum commutation. The trustees also proceed to liquidate the remaining $10,000 to fund the required minimum pension amount in cash. On 30 November, Andre is paid the minimum pension amount of $10,000 in cash.

    As Andre’s minimum pension payment was not made prior to the full commutation of his pension, the pension is taken not to have existed for that year of income and any benefits received will need to be treated as lump sums. The fund will not be entitled to treat income or capital gains from Andre’s pension as ECPI in the year the commutation takes place.

    End of example

    If a member fully commutes a pension and retains the amount of the commutation lump sum within the fund, you will be required to recalculate the tax-free and taxable components of any new benefit subsequently paid from the fund.

    What are the tax implications for the fund associated with a full commutation?

    As the super income stream ceases at the time the full commutation takes effect, eligibility for ECPI also ceases at this time. There may also be CGT consequences as a result of the disposal of assets after this time.

    Can a full commutation be paid in-specie?

    Yes. The payment that results from a full commutation is a lump sum for the purposes of the superannuation laws so if permitted under the fund’s governing rules, the payment may be in the form of cash or in-specie.

    Trustees will need to consider the governing rules of the fund and any CGT implications associated with the transfer of assets in lieu of cash.

    Pension ceasing upon death

    A pension ceases as soon as a member in receipt of the pension dies, unless a dependant beneficiary is automatically entitled to a reversionary pension.

    Where a pensioner dies, is there a need to make a minimum pension payment to the deceased/beneficiary?

    Where a super income stream automatically transfers to a beneficiary on the death of a pensioner (an auto reversionary pension) you must ensure that the minimum pension payments continue to be made, including in the year the member in receipt of the original pension dies.

    Where a pensioner in receipt of a non reversionary account-based pension dies, we won't require a minimum pension payment to be made in the year of death. If the deceased member’s benefits are subsequently used to commence a new pension to a beneficiary, you will be required to ensure the new minimum annual pension amount is paid in the relevant year.

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    Where a pensioner dies, what else do you need to be aware of?

    Upon the death of a member, a non-auto reversionary pension ceases.

    From 1 July 2012, Income Tax Assessment Amendment (Superannuation Measures No. 1) Regulation 2013 ensure that, where a member who was receiving a non-auto reversionary super income stream dies, the fund will continue to be entitled to claim ECPI in the period from the member’s death until their benefits are applied to commence a new super income stream or paid as a lump sum (subject to the benefits being cashed as soon as practicable).

    You, are also responsible for the correct identification of the tax free and taxable components of payments made from the superannuation interest that was supporting the deceased member’s pension.

    Where a member in receipt of a non auto reversionary super income stream (the original income stream) dies on or after 4 June 2013, refer to the Income Tax Assessment Amendment (Superannuation Measures No. 1) Regulation 2013 for an alternative method to determining the tax free and taxable components of the super interest.

    How we can help

    If you have a general question about how the super laws operate for an SMSF, you can get written SMSF guidance.

    SMSF guidance will not tell you how the law applies to your own SMSF's particular circumstances but will tell you how the super law applies generally.

    If you need written advice about how the super law applies to your SMSF's particular circumstances, you can apply for self-managed super funds specific advice (SMSFSA).

    A SMSFSA sets out the Commissioner's opinion about the way the super laws apply, or would apply, to your SMSF in relation to a specified arrangement or circumstance.

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      Last modified: 01 Jun 2016QC 26864