ATO Interpretative Decision

ATO ID 2002/828 (Withdrawn)

Income Tax

Assessability of Superannuation Pension (Invalidity Class B)
FOI status: may be released

This ATO ID is withdrawn because it contains a view in respect of a provision of the Income Tax Assessment Act 1936 that does not apply to the factual situation described in this ATO ID after the 2006-07 income year. Superannuation pensions of the kind described in this ATO ID will be assessable under Division 301 of the Income Tax Assessment Act 1997 from 1 July 2007. Despite its withdrawal, this ATO ID continues to be a precedential ATO view in respect of decisions for income years up to, and including, the 2006-07 income year.

This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Status of this decision: Decision Withdrawn 15 January 2016.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Is a superannuation pension, paid to a taxpayer under the provisions of the Military Superannuation Benefits Act 1991, included in the taxpayer's assessable income under section 27H of the Income Tax Assessment Act 1936 ('ITAA 1936')?

Decision

Yes. The taxpayer's superannuation pension, paid under the provisions of the Military Superannuation Benefits Act, is included in the taxpayer's assessable income under section 27H of the ITAA 1936.

Facts

The taxpayer is in receipt of a superannuation pension (invalidity class B) paid from the Department of Veterans' Affairs.

The taxpayer's pension became payable subsequent to 1 July 1983.

The taxpayer's superannuation pension is paid under the provisions of the Military Superannuation Benefits Act.

Reasons for Decision

Section 27H of the ITAA 1936 includes in a taxpayer's income the amount of any annuity derived by a taxpayer during the year of income. In the case of an annuity that is purchased, the amount is reduced by the deductible amount calculated in accordance with that section.

An annuity is defined to include a 'superannuation pension' (subsection 27H(4) of the ITAA 1936).

Section 6-20 of the Income Tax Assessment Act 1997 (ITAA 1997) states that an amount is 'exempt income' if it is made exempt from income tax by a provision of the ITAA 1997 or another Commonwealth law.

Division 51 of the ITAA 1997 provides that certain items of income are exempt from tax. However, section 55-5 of the ITAA 1997 states that any amounts or pensions paid under certain listed Acts or provisions will not be exempt.

The Military Superannuation and Benefits Act is one of the Acts listed in section 55-5 of the ITAA 1997 and therefore any amount or pension paid under that Act will not be exempt.

Consequently, the superannuation pension the taxpayer receives is not exempt from tax and will be included in the taxpayer's assessable income under section 27H of the ITAA 1936.

Date of decision: 13 August 2002

Year of income: Year ended 30 June 2002

Legislative References:
Income Tax Assessment Act 1936
section 27H
subsection 27H(4)

Income Tax Assessment Act 1997
   section 6-20
   Division 51
   section 55-5

Military Superannuation and Benefits Act 1991
1

Keywords
Superannuation pension income
Exempt income
Veterans payments

Business Line: Small Business/Individual Taxpayers

Date of publication: 21 August 2002

ISSN: 1445-2782

history

	Date:	Version:
	13 August 2002	Original statement
You are here →	15 January 2016	Archived

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