Edited version of your written advice

Authorisation Number: 1012813478110

Ruling

Subject: Superannuation lump sum from foreign superannuation fund

Question

Is any part of the lump sum payment received by the taxpayer from a foreign pension plan assessable as applicable fund earnings in accordance with section 305-70 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes

This ruling applies for the following period

Income year ending 30 June 2015

The scheme commenced on

1 July 2014

Relevant facts and circumstances

1. On the residency date the Taxpayer became a resident of Australia for tax purposes.

2. While living in the foreign country, the Taxpayer became a member of the Pension Plan.

3. The Pension Plan is now closed, but was at the relevant time a retirement fund established and managed in the foreign country.

4. The Taxpayer cannot access their benefits in the Pension Plan other than at retirement.

5. There have been no contributions or pension amalgamations to the Pension Plan since the Taxpayer became an Australian resident for tax purposes.

6. The payment was made from the Pension Plan to a complying superannuation fund in Australia (the Australian Fund).

7. The Taxpayer transferred their benefits from the Pension Plan to the Australian Fund.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 295-95(2)

Income Tax Assessment Act 1997 section 305-70

Income Tax Assessment Act 1997 subsection 305-70(2)

Income Tax Assessment Act 1997 section 305-75

Income Tax Assessment Act 1997 subsection 305-75(3)

Income Tax Assessment Act 1997 subparagraph 305-75(3)(a)(i)

Income Tax Assessment Act 1997 subparagraph 305-75(3)(a)(ii)

Income Tax Assessment Act 1997 subparagraph 305-75(3)(a)(iii)

Income Tax Assessment Act 1997 paragraph 305-75(3)(b)

Income Tax Assessment Act 1997 paragraph 305-75(3)(c)

Income Tax Assessment Act 1997 paragraph 305-75(3)(d)

Income Tax Assessment Act 1997 subsection 305-80(1)

Income Tax Assessment Act 1997 subsection 305-80(2)

Income Tax Assessment Act 1997 section 960-50

Income Tax Assessment Act 1997 subsection 960-50(1)

Income Tax Assessment Act 1997 subsection 960-50(4)

Income Tax Assessment Act 1997 subsection 960-50(6)

Income Tax Assessment Act 1997 subsection 995-1(1)

Income Tax Assessment Regulations 1997 subregulation 960-50.01(1)

Superannuation Industry (Supervision) Act 1993 section 10

Superannuation Industry (Supervision) Act 1993 subsection 10(1)

Superannuation Industry (Supervision) Act 1993 section 19

Superannuation Industry (Supervision) Act 1993 section 62

Detailed reasoning

Lump sum payments transferred from foreign superannuation funds

1. Section 305-70 of the ITAA 1997 applies to lump sum payments from foreign superannuation funds that are received more than six months after a person has become an Australian resident.

2. In accordance with subsection 305-70(2) of the ITAA 1997, so much of the lump sum as equals the applicable fund earnings, as worked out under section 305-75 of the ITAA 1997, is included in the assessable income of a person.

3. The applicable fund earnings amount is subject to tax at the person's marginal tax rate. The remainder of the lump sum payment is not assessable income and is not exempt income.

4. The applicable fund earnings amount is worked out under subsection 305-75(3) of the ITAA 1997 where the person was not an Australian resident at all times during the person to which the lump sum relates.

5. Before determining whether an amount is assessable under section 305-70 of the ITAA 1997, it must first be ascertained whether the payment is being made from a foreign superannuation fund. If the entity making the payment is not a foreign superannuation fund then section 305-70 will not have any application.

Meaning of 'foreign superannuation fund'

6. A foreign superannuation fund is defined in subsection 995-1(1) of the ITAA 1997 as:

(a) a *superannuation fund is a foreign superannuation fund at a time if the fund is not an *Australian superannuation fund at that time; and

(b) a superannuation fund is a foreign superannuation fund for an income year if the fund is not an Australian superannuation fund for the income year.

1. Subsection 295-95(2) of the ITAA 1997 defines Australian superannuation fund as:

A superannuation fund is an Australian superannuation fund at a time, and for the income year in which that time occurs, if:

(a) the fund was established in Australia, or any asset of the fund is situated in Australia at that time, and

(b) at the time, the central management and control of the fund is ordinarily in Australia; and

(c) at that time either the fund had no member covered by subsection (3) (an active member)or at least 50% of:

(i) the total *market value of the fund's assets attributable to *superannuation interests held by active members;

or

(ii) the sum of the amounts that would be payable to or in respect of active members if they voluntarily ceased to be members;

is attributable to superannuation interests held by active members who are Australian residents.

1. Therefore, a superannuation fund that is established outside of Australia and has its central management and control outside of Australia would qualify as a foreign superannuation fund. The fact that some of its members may be Australian residents would not necessarily alter this.

Meaning of 'superannuation fund'

2. 'Superannuation fund' is defined in subsection 995-1(1) of the ITAA 1997 as having the meaning given by section 10 of the Superannuation Industry (Supervision) Act 1993 (the SISA).

3. Subsection 10(1) of the SISA states:

superannuation fund means:

(a) a fund that:

(i) is an indefinitely continuing fund; and

(ii) is a provident, benefit, superannuation or retirement fund; or

(a) a public sector superannuation Pension Plan.

1. The High Court examined both the terms 'superannuation fund' and 'fund' in Scott v. Federal Commissioner of Taxation (No 2) (1966) 40 ALJR 265; (1966) 14 ATD 333; [1966] LB Co's Tax Serv 80; (1966) 10 AITR 290. In that case, Justice Windeyer stated:

…I have come to the conclusion that there is no essential single attribute of a superannuation fund established for the benefit of employees except that it must be a fund bona fide devoted as its sole purpose to providing for employees who are participants money benefits (or benefits having a monetary value) upon their reaching a prescribed age. In this connexion "fund", I take it, ordinarily means money (or investments) set aside and invested, the surplus income therefrom being capitalised. I do not put this forward as a definition, but rather as a general description.

Meaning of 'provident, benefit, superannuation or retirement fund'

2. The issue of what constitutes a 'provident, benefit, superannuation or retirement fund' was discussed by the Full Bench of the High Court in Mahony v. Federal Commissioner of Taxation (Cth) (1967) 41 ALJR 232; (1967) 14 ATD 519. In that case, Justice Kitto held that a fund had to exclusively be a 'provident, benefit or superannuation fund' and that 'connoted a purpose narrower than the purpose of conferring benefits in a completely general sense…'. This narrower purpose meant that the benefits had to be 'characterised by some specific future purpose' such as the example given by Justice Kitto of a funeral benefit.

3. In section 62 of the SISA, a regulated superannuation fund must be 'maintained solely' for the 'purposes' of providing benefits to a member when the events occur:

• on or after retirement from gainful employment; or

• attaining a prescribed age; or

• on or after cessation of work on account of ill-health; and

• on the member's death (this may require the benefits being passed on to a member's dependants or legal representative).

4. Notwithstanding that SISA applies only to 'regulated superannuation funds' (as defined in section 19 of the SISA), and foreign superannuation funds do not qualify as regulated superannuation funds as they are established and operate outside Australia, the Commissioner views the SISA (and the Superannuation Industry (Supervision) Regulations 1994) as providing guidance as to what 'benefit' or 'specific future purpose' a superannuation fund should provide.

5. In this case, it is clear that the Pension Plan was established outside of Australia and that their central management and control are outside of Australia. In addition, the Taxpayer's benefits in the Pension Plan are only payable upon retirement or upon reaching age 55. As such, the Pension Plan would meet the definition of a superannuation fund.

6. Therefore, on the basis of the information provided, the Commissioner considers the Pension Plan to be a foreign superannuation fund for the purposes of section 305-70 of the ITAA 1997.

Applicable fund earnings

7. The Taxpayer became a resident of Australia for tax purposes in May 2010 and their benefit was transferred from the Pension Plan in December 2014. As this is more than six months after the Taxpayer became an Australian resident, section 305-70 of the ITAA 1997 applies to include the 'applicable fund earnings' (if any) in the Taxpayer's assessable income.

8. The 'applicable fund earnings' amount is worked out under subsection 305-75 of the ITAA 1997. As mentioned earlier, subsection 305-75(3) of the ITAA 1997 applies where the person becomes an Australian resident after the start of the period to which the lump sum relates.

9. Subsection 305-75(3) of the ITAA 1997 states:

If you become an Australian resident after the start of the period to which the lump sum relates, the amount of your applicable fund earnings is the amount (not less than zero) worked out as follows:

(a) work out the total of the following amounts:

(i) the amount in the fund that was vested in you just before the day (the start day) you first became an Australian resident during the period;

(ii) the part of the payment that is attributable to contributions to the fund made by or in respect of you during the remainder of the period;

(iii) the part of the payment (if any) that is attributable to amounts transferred into the fund from any other *foreign superannuation fund during the period;

(b) subtract that total amount from the amount in the fund that was vested in you when the lump sum was paid (before any deduction for *foreign income tax);

(c) multiply the resulting amount by the proportion of the total days during the period when you were an Australian resident;

(d) add the total of all previously exempt fund earnings (if any) covered by subsections (5) and (6).

10. This means that the Taxpayer is assessed only on the income they earned on the benefits in the Pension Plan less any contributions they made since they became a resident of Australia. Any earnings made during the period of non-residency and transfers into the paying fund do not form part of the taxable amount when the overseas benefit is paid.

Foreign currency conversion

11. Subsection 960-50(1) of the ITAA 1997 provides that an amount in a foreign currency is to be translated into Australian currency.

12. In applying section 960-50 of the ITAA 1997, subsection 960-50(4) of the ITAA 1997 provides that:

(a) first, translate any amounts that are elements in the calculation of other amounts (except 'special accrual amounts'); and

(b) then, calculate the other amounts.

1. The table in subsection 960-50(6) of the ITAA 1997 sets out the translation rules. Subregulation 960-50.01(1) of the Income Tax Assessment Regulations 1997 inserted item 11A into the table of rules and used for amounts which are not receipts or payments and to which none of the earlier rules apply.

2. Item 11A requires the amount to be translated into Australian currency at an exchange rate that is reasonable having regard to the circumstances.

3. In the ATO Interpretative Decision ATOID 2015/7, the Commissioner considers that, in the circumstances of the case, the exchange rate at which it is reasonable to translate amounts used in the method statements in subsections 305-75(2) and (3) of the ITAA 1997 into Australian currency is the exchange rate applicable at the time of receipt of the relevant superannuation lump sum given that:

• in essence, the amount of applicable fund earnings in relation to a superannuation lump sum to which section 305-70 of the ITAA 1997 applies is the part of the lump sum that is attributable to earnings that have accrued to the individual in the foreign superannuation fund during the period the individual is an Australian resident;

• a comparison must be made between the amount of a superannuation lump sum to which section 305-70 of the ITAA 1997 applies and the amount of the individual's applicable fund earnings in relation to that lump sum to determine the amount included in the assessable income of the individual under subsection 305-70(2) of the ITAA 1997; and

• the amount of a superannuation lump sum to which section 305-70 of the ITAA 1997 applies is to be translated to Australian currency at the exchange rate applicable at the time of its receipt.

4. Therefore, for the purposes of section 305-70 of the ITAA 1997, the 'applicable fund earnings' amount should be calculated by:

• Translating the amount received from the Pension Plan at the exchange rate applicable on the day of receipt to Australian dollars (A$); and

• deducting from this amount , the amount in the Pension Plan that was vested in the Taxpayer just before the day they became an Australian resident at the exchange rate applicable on the day of receipt of the lump sum.

Amounts to be used in calculation

5. The value of the Taxpayer's benefit in the Pension Plan on the day before they became an Australian resident for tax purposes is converted into Australian dollars at the exchange rate that applied on the day of the receipt of the lump sum.

6. From the facts provided, no contributions or transfers have been made to the Pension Plan since the Taxpayer became a resident of Australia.

7. The Taxpayer's benefit is converted into Australian dollars at the exchange rate that applied on the day of the receipt of the lump sum.

8. 'The period' for the purposes of paragraph 305-75(3)(c) of the ITAA 1997 commences on the day on which the person first became an Australian resident for tax purposes and ceases on the day the lump sum is paid. The Taxpayer was a resident for tax purposes during this period and so the Australian resident days and the total days are the same. As such, the proportion to be used in the calculation is 1.

9. There are no previously exempt fund earnings in relation to the lump sum. Therefore, the value for this calculation is A$0.00.

Calculation of the assessable amount of the payment from the Pension Plan

10. In accordance with subsection 305-75(3) of the ITAA 1997, the amounts at subparagraphs 305-75(3)(a)(i), (ii) and (iii) are added.

11. This total is then subtracted from the amount determined under paragraph 305-75(3)(b).

12. This figure is multiplied by the proportion of the total days determined under paragraph 305-75(3)(c).

13. The amount under paragraph 305-75(3)(d) is then added to the total.

14. Therefore the total amount should be included in the Taxpayer's income tax return for the 2014-15 income year as the 'applicable fund earnings' amount in respect of the lump sum received from the Pension Plan.

Election

15. A taxpayer who is transferring their overseas superannuation benefits directly to a complying Australian superannuation fund more than six months after becoming a resident may elect under subsection 305-80(2) of the ITAA 1997 to have all or part of the applicable fund earnings treated as assessable income of the Australian superannuation fund.

16. If the election is made, the amount specified in the election notice will be included in the assessable income of the superannuation fund and subject to tax at 15% rather than being included in the taxpayer's assessable income and subject to tax at the taxpayer's marginal rate.

17. To qualify, the taxpayer must, immediately after the relevant payment is made, no longer have an interest in the paying fund (subsection 305-80(1) of the ITAA 1997).

18. Consequently, if the Taxpayer will no longer have an interest in the Pension Plan after the transfer, they are eligible to make an election to have all, or part, of the applicable fund earnings amount treated as assessable incomes of the Australian Fund.

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