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ATO Interpretative Decision

ATO ID 2002/156

Superannuation

Superannuation, retirement & employment termination: Eligible termination payment (ETP) and ETP Rollover
FOI status: may be released

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CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.

Issue

Can the taxpayer's 'legal personal representative' roll over the taxpayer's benefit to an approved deposit fund (ADF) and is such a rollover an eligible termination payment (ETP)?

Decision

Yes. The taxpayer's legal personal representative is able to make the election under section 27D of the Income Tax Assessment Act 1936 (ITAA 1936) on behalf of the taxpayer and the payment to the ADF would be an ETP under paragraph 27A(1)(b) of the ITAA 1936.

Reasons for Decision

When a member of a superannuation fund is under a legal disability, the member's 'legal personal representative' (as defined in section 10 of the Superannuation Industry (Supervision) Act 1993 has the legal authority to act on the member's behalf.

Assuming the legal personal representative wishes to roll over the taxpayer's benefits to an ADF, it is necessary, first, for the taxpayer to make an election under section 27D of the ITAA 1936. The section allows a taxpayer to elect to treat a qualifying termination payment as a rollover. Paragraphs 27A(12)(a), (b), (c) and (d) of the ITAA 1936 determine what constitutes a 'qualifying eligible termination payment'. The payment rolled over to the ADF will be an ETP under paragraph 27A(1)(c) of the ITAA 1936.

Date of decision:   27 July 1998

Legislative References:
Superannuation Industry (Supervision) Act 1993
   section 10

Income Tax Assessment Act 1936
   subsection 27A(1)
   paragraph 27A(1)(b)
   paragraph 27A(1)(c)
   paragraph 27A(12)(a)
   paragraph 27A(12)(b)
   paragraph 27A(12)(c)
   paragraph 27A(12)(d)
   subsection 27D(1)
   paragraph 27A(12)(c)

Other References:
Previously released as CDS10142

Keywords
Eligible termination payments
ETP rollover

Business Line:  Superannuation

Date of publication:  8 February 2002

ISSN: 1445-2782

history
  Date: Version:
You are here 27 July 1998 Original statement
  14 December 2007 Archived

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