ATO Interpretative Decision
ATO ID 2002/478 (Withdrawn)
Superannuation
Superannuation, retirement & employment termination: Eligible termination payment (ETP) and Exempt foreign termination paymentsFOI status: may be released
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This ATO ID is withdrawn as it is a simple restatement of the law and does not contain an interpretative decision.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Is a partial distribution of surplus funds from a non-resident superannuation fund to a former member of the fund assessable to the resident taxpayer under section 27CAA of the Income Tax Assessment Act 1936 (ITAA 1936)?
Decision
Yes. The partial distribution of surplus funds from a 'non-resident non-complying superannuation fund' to its former member is assessed to the resident taxpayer under section 27CAA of the ITAA 1936, being a lump sum payment from an 'eligible non-resident superannuation fund' as defined in section 6E of the ITAA 1936.
Facts
The taxpayer was a member of a non-resident superannuation fund. Under the fund's superannuation scheme, the fund made certain surplus fund payments to former members of the fund. The taxpayer, after leaving the scheme became a resident of Australia.
Reasons for Decision
A payment from an 'eligible non-resident non-complying superannuation fund' that does not qualify as an 'exempt resident foreign termination payment' or an 'exempt non-resident foreign termination payment' is included in assessable income under section 27CAA of the ITAA 1936. The amount included in the taxpayer's assessable income is the amount by which the gross amount of the payment that was properly payable to the taxpayer on the day the payment was made (before any deduction was made) exceeds the amount worked out using the formula in paragraph 27CAA(1)(c) of the ITAA 1936.
The payment made to the taxpayer does not satisfy the definition of an 'exempt resident foreign termination payment' or an 'exempt non-resident foreign termination payment' in subsection 27A(1) of the ITAA 1936.
The payment is not an 'eligible termination payment' (ETP) as defined in subsection 27A(1) of the ITAA 1936, as paragraph 27A(1)(ma) of the ITAA 1936 specifically excludes a payment from a 'non-resident non-complying superannuation fund' from being an ETP.
Date of decision: 1 August 1997
Legislative References:
Income Tax Assessment Act 1936
subsection 6E(4)
subsection 27A(1)
section 27CAA
Other References:
Previously released as CDS10170
Keywords
Eligible termination payments
Foreign termination payments
Foreign superannuation payments
ISSN: 1445-2782
| Date: | Version: | |
| 1 August 1997 | Original statement | |
| You are here | 19 June 2009 | Archived |