ATO Interpretative Decision
ATO ID 2001/159 (Withdrawn)
Superannuation
Rebatable superannuation pensionsFOI status: may be released
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This ATO Interpretative Decision is withdrawn from the database because it contains a view in respect of section 159SJ of the Income Tax Assessment Act 1936 which does not apply after the 2006 - 2007 income year. Despite its withdrawal from the database, this ATO Interpretative Decision continues to be a precedential view in respect of decisions for income years up to, and including, the 2006 - 2007 income year.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Whether an allocated pension paid to the taxpayer, who is both the trustee and member of a superannuation fund, a rebatable superannuation pension under section 159SJ of the Income Tax Assessment Act 1936 (ITAA 1936)?
Decision
An allocated pension paid to the taxpayer who is both the trustee and member of a superannuation fund is a rebatable superannuation pension provided it is paid to the taxpayer in his or her capacity as a member of the fund.
Facts
There are two members of a complying superannuation fund. The two members are also trustees. Allocated pensions are paid to the members/trustees.
Reasons For Decision
A superannuation pension is a 'rebatable superannuation pension' as defined in section 159SJ (ITAA 1936) where it is paid from a retirement savings account or fund which satisfies paragraph (a) of that definition. However, it will not qualify as rebatable superannuation pension if it is paid to a person in their capacity as the trustee of the relevant fund.
The explanatory memorandum relating to the Taxation Laws Amendment (Superannuation) Bill 1992 explains that this condition is necessary because annuity policies vested in the trustee of a superannuation fund are included in the definition of 'superannuation pension' so that payments under such policies in respect of fund members are treated as pensions, not annuities. The exclusion in paragraph (b) of the definition of rebatable superannuation pension ensures that payments under such policies to the trustee of the applicable fund are not rebatable to the trustee.
Where a pension is paid from the fund to a person in their capacity as a member of the fund and not in their capacity as trustee of the fund, the pension will be a rebatable superannuation pension under subsection 159SJ(1) (ITAA 1936).
Date of decision: 9 September 1997
Legislative References:
Income Tax Assessment Act 1936
section 159SJ
subsection 159SJ(1).
Other References:
Explanatory memorandum relating to the Taxation Laws Amendment (Superannuation) Bill 1992
Keywords
Superannuation pension income
Personal superannuation contribution rebates
Superannuation pension rebates
Superannuation funds
Annuities & superannuation pensions
ISSN: 1445-2782
| Date: | Version: | |
| 9 September 1997 | Original statement | |
| You are here | 19 June 2009 | Archived |
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