Edited version of your written advice

Authorisation Number: 101311279937

Date of advice: 21 October 2016

Ruling

Subject: Taxation treatment of invalidity pay paid under the Defence Force Retirement and Death Benefits Scheme

Question 1

Are the invalidity benefits paid to you under the Defence Force Retirement and Death Benefits superannuation scheme (DFRDB) established under the Defence Force Retirement and Death Benefits Act 1973 (DFRDBA) superannuation benefits as that term is defined in section 307-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes.

Question 2

If yes to the previous question, are the invalidity benefits (described in the DFRDBA as "invalidity pay") paid to you excluded by section 307-10 of the ITAA 1997 from the definition of superannuation benefit in section 307-5 of the ITAA 1997?

Answer

No.

Question 3

If no to the previous question, does the invalidity benefit constitute a superannuation income stream as that term is defined in section 307-70 of the ITAA 1997 and regulation 995-1.01(1) of the Income Tax Assessment Regulations 1997 (ITAR)?

Answer

Yes.

Question 4

If yes to the previous question, can you make the election in regulation 995-1.03 of the ITAR, before a particular payment of the invalidity benefit is made, that the payment is not to be treated as a superannuation income stream benefit?

Answer

Yes.

Question 5

Is the invalidity benefit payable to you under the DFRDB an employment termination payment?

Answer

No.

Question 6

Is the invalidity benefit from the DFRDB paid in respect of an interest that is a defined benefit interest under section 291-175 of the ITAA 1997.

Answer

Yes.

This ruling applies for the following periods:

Income year ended 30 June 20YY;

Income year ended 30 June 20ZZ;

Income year ended 30 June 20XY; and

Income year ending 30 June 20XZ.

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You were under preservation age at all times relevant to this private ruling.

Your preservation age is 60.

As a member of Australia's Armed Forces, you became a member of the DFRDB. The DFRDB is a scheme which was established to provide benefits that are payable when an individual retires from the Armed Forces (now known as the ADF).

The DFRDB is established by the Defence Force Retirement and Death Benefits Act 1973. The DFRDB is administered by the Commonwealth Superannuation Corporation (CSC).

Amongst other things, the DFRDBA provides for the payment of invalidity pay to certain individuals who have been retired because of their invalidity.

According to the DFRDBA "invalidity pay" is an invalidity benefit consisting of invalidity pay. "Pension benefit" is defined to include invalidity pay: subsection 3(1) DFRDBA.

To determine whether invalidity pay is to be paid, the DFRDBA provides for a mechanism by which a determination is made of a particular individual's capacity/incapacity to engage in civil employment after their retirement from the ADF: section 30 DFRDBA. Under that provision, an individual is assessed as having a Class A, Class B or Class C incapacity for civil employment.

The DFRDBA provides that a person whose incapacity for civil employment is classified as either Class A or B is eligible for invalidity pay: subsection 31(1) DFRDBA.

When someone is classified as Class A they are entitled to invalidity pay of 76.5% of the annual rate of pay applicable to the person immediately before his or her retirement: subsection 31(2) DFRDBA.

Under the DFRDBA the rate of pay on ordinary retirement is worked out by applying the percentage in the table in Schedule 1 to the DFRDBA that matches the person's number of complete years in his/her total period of effective service. Retirement pay is 76.5% of the annual rate of pay applicable where the person has 40 or more complete years of service.

However, for a person whose incapacity for civil employment is classified as Class B they are entitled to invalidity pay of a different amount, which is 38.25% of the annual rate of pay immediately before his or her retirement: subsection 31(2) DFRDBA. For a person with 23 or more years of service the invalidity pay will be higher: subsection 31(3).

Invalidity pay may be payable to a person whose incapacity for civil employment is classified as Class C: subsection 32(1) DFRDBA.

The DFRDBA provides the CSC with the power to require a person receiving invalidity pay to undergo a medical review of their level of incapacity for civil employment: section 35 DFRDBA. An individual's level of incapacity for civil employment may be adjusted by the CSC to the extent that they are reclassified to another classification: section 34 DFRDB. In those instances the amount payable may be adjusted.

From 1 July 2009 no CSC-initiated medical reviews of persons receiving DFRDB invalidity pay have taken place. This is stated on page 28 of the latest version of the DFRDB's "About your scheme" booklet (also known as the "DFRDB Book") which was published in 2016.

This decision to discontinue any CSC-initiated medical review of invalidity classification is also noted on page 8 in the DFRDB's Annual Report to Contributors 2008-2009.

A person who has been classified as Class B may seek a medical review if he/she believes they should be reclassified to Class A. A reclassification to Class A would mean the amount of invalidity pay would be increased.

Under the DFRDBA, instalments of pension benefit (which includes invalidity pay) are paid fortnightly: subsection 59(1) DFRDBA.

These instalments of pension benefit are paid by the Commonwealth and are paid out of the Consolidated Revenue Fund: subsections 125(1) and (3) DFRDBA.

The amount of invalidity pay is indexed twice each year in January and July with the indexation worked out by reference to increases in the consumer price index for the half-years ending 30 September and 31 March respectively: Part XA DFRDBA.

You were retired from the ADF on the grounds of invalidity as you were considered unfit for military service and consequently became eligible for invalidity benefits under the rules of the DFRDB.

The CSC is currently withholding amounts from your invalidity pay on the basis that each fortnightly payment of the pension is a superannuation income stream benefit that you are liable to include in your assessable income.

In your application for a private ruling you have contended that:

• the benefits you have received are not a superannuation income stream benefit as they are subject to regular medical reviews which can result in the payments being decreased or cancelled at any stage;

• the payment summaries provided to you by the CSC are incorrect; and

• the benefits you have received are not a defined benefit.

In your application for a private ruling you also contended that the benefits you have received are employment termination payments of which the invalidity component should be tax free.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 82-130

Income Tax Assessment Act 1997 section 82-135

Income Tax Assessment Act 1997 section 307-5

Income Tax Assessment Act 1997 section 307-10

Income Tax Assessment Act 1997 section 307-70

Income Tax Assessment Act 1997 section 307-145

Income Tax Assessment Act 1997 section 307-150

Income Tax Assessment Regulations 1997 subregulation 995-1.01(1)

Income Tax Assessment Regulations 1997 regulation 995-1.03

Superannuation Industry (Supervision) Act 1993 section 10

Superannuation Industry (Supervision) Regulations 1994 subregulation 1.06(1)

Defence Force Retirement and Death Benefits Act 1973 subsection 3(1)

Defence Force Retirement and Death Benefits Act 1973 subsection 31(1)

Defence Force Retirement and Death Benefits Act 1973 subsection 31(2)

Defence Force Retirement and Death Benefits Act 1973 subsection 31(3)

Defence Force Retirement and Death Benefits Act 1973 subsection 32(1)

Defence Force Retirement and Death Benefits Act 1973 section 34

Defence Force Retirement and Death Benefits Act 1973 section 35

Defence Force Retirement and Death Benefits Act 1973 subsection 59 (1)

Defence Force Retirement and Death Benefits Act 1973 part XA

Defence Force Retirement and Death Benefits Act 1973 subsection 125(1)

Defence Force Retirement and Death Benefits Act 1973 subsection 125(3)

Defence Force Retirement and Death Benefits Act 1973 Schedule 1

Detailed reasoning

Question 1:

Are the invalidity benefits paid to you under the Defence Force Retirement and Death Benefits superannuation scheme (DFRDB) established under the Defence Force Retirement and Death Benefits Act 1973 (DFRDBA) superannuation benefits as that term is defined in section 307-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

Yes.

Reasons

Item 1 of the table in subsection 307-5(1) of the ITAA 1997 effectively states that a 'superannuation benefit' includes a payment made to you from a superannuation fund because you are a fund member.

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

Paragraph (b) of the superannuation fund definition in subsection 10(1) of the SISA refers to a 'public sector superannuation scheme.' This term is also defined in that subsection to include a scheme for the payment of superannuation, retirement or death benefits, where the scheme is established by or under a law of the Commonwealth or the government of a State or Territory.

The DFRDB is established under the law of the Commonwealth to pay superannuation, retirement or death benefits. In particular, it provides for benefits that are in the nature of superannuation benefits that are payable on retirement from the ADF, including where that retirement is due to invalidity. It is therefore a superannuation fund for both SISA and income tax purposes.

This position is consistent with the position of the Administrative Appeals Tribunal in Michael James Hammerton v Comcare Australia [1995] AATA 63 regarding the DFRDB.

Further, the invalidity pay benefits under the DFRDB are made because the recipients are, or have been, fund members. Each individual's entitlement to the benefits arises because they were a fund member who retired due to invalidity.

For these reasons we consider that the DFRDB invalidity pay or pension benefits are superannuation benefits as defined in section 307-5 of the ITAA 1997.

Question 2:

If yes to the previous question, are the invalidity benefits (described in the DFRDBA as "invalidity pay") paid to you excluded by section 307-10 of the ITAA 1997 from the definition of superannuation benefit in section 307-5 of the ITAA 1997?

Answer 2:

No.

Reasons

Paragraph 307-10(a) of the ITAA 1997 excludes from the definition of 'superannuation benefit' amounts payable under an income stream because of the person's temporary inability to engage in gainful employment.

The DFRDB invalidity pay or pension benefit is paid because a member is retired from the ADF on the ground of invalidity. It is not paid because of the person's temporary inability to engage in gainful employment but rather on the assessment of their incapacity in relation to civil employment.

The assessment of incapacity determines whether an individual is entitled to invalidity pay and if so how much is payable as the pension benefit. In view of the decision that no further CSC-initiated medical reviews be conducted, this confirms that the assessment of incapacity is not concerned with temporary incapacity.

As a result of a request for a review by an individual, the assessment of incapacity can also determine whether a different amount is payable such as an increase in the amount paid (if the individual is reclassified as having Class A incapacity after originally being classified as Class B).

The payment of an invalidity benefit under the DFRDB occurs when there is a permanent, not temporary incapacity. An individual's degree of incapacity must be such that first, the individual is retired from the ADF. Secondly, the degree of incapacity that is necessary for an individual to be paid an invalidity benefit is such that it has diminished the individual's capacity to undertake the kinds of civil employment which a person with the vocational, trade and professional skills, qualifications and experience the particular individual has and that they might reasonably undertake: see for example, section 30 DFRDBA.

We consider that the DFRDB invalidity benefits do not relate to temporary disability or temporary incapacity and they are therefore not excluded from being superannuation benefits by paragraph 307-10(a) of the ITAA 1997.

Question 3:

If no to the previous question, does the invalidity benefit constitute a superannuation income stream as that term is defined in section 307-70 of the ITAA 1997 and regulation 995-1.01(1) of the Income Tax Assessment Regulations 1997 (ITAR)?

Answer:

Yes

Reasons

Superannuation benefits are either superannuation income stream benefits or superannuation lump sums (Subdivision 307-B of the ITAA 1997).

A superannuation income stream benefit is relevantly 'a payment from an interest that supports a superannuation income stream, other than a payment to which regulation 995-1.03 of the ITAR applies: subsection 307-70(1) and (2) of the ITAA 1997 and subregulation 995-1.01(2) of the ITAR.

A definition of 'superannuation income stream' is set out in subregulation 995-1.01(1) of the ITAR. On the issue of whether these pension benefits are superannuation income streams, an 'income stream' that commenced before 20 September 2007 is a superannuation income stream if it is an annuity or pension within the meaning of the SIS Act.

An income stream that commenced on or after 20 September 2007 is a superannuation income stream if it is taken to be a pension for the purposes of the SIS Act in accordance with subregulation 1.06(1) of the SIS Regulations or SISR.

The expression 'income stream' is not defined by either the income tax or superannuation laws. It must be given its ordinary meaning. We consider that an income stream is a series of periodic payments that relate to each other and that are payable over an identifiable period of time.

The invalidity pay payable under the DRFDBA amounts to such a series of fortnightly payments.

Having examined the terms under which the invalidity pay is payable under the DFRDBA, we are satisfied that the invalidity pay or pension benefit is a pension that meets the requirements set out in subregulation 1.06(1) of the SISR.

You refer in your application to the circumstances in which the invalidity pension may vary under the DFRDBA and point to the conditions in paragraph 995-1.03 of the ITAR in order to conclude that the invalidity pension is not a superannuation income stream. However, we note that regulation may only affect whether a particular payment from a superannuation income stream is a superannuation income stream benefit or a superannuation lump sum. It has no effect on whether a person's benefits paid from their superannuation fund are a superannuation income stream or not. Regulation 995-1.03 only applies if a member's benefits are being paid as a superannuation income stream as defined.

Question 4:

If yes to the previous question, can you make the election in regulation 995-1.03 of the ITAR, before a particular payment of the invalidity benefit is made, that the payment is not to be treated as a superannuation income stream benefit?

Answer:

Yes.

Reasons

Regulation 995-1.03 of the ITAR effectively allows a person in receipt of a superannuation income stream to elect to have a payment made from the income stream be treated as a superannuation lump sum instead of a superannuation income stream benefit (provided the person makes the election before the payment is made).

However, an election under regulation 995-1.03 of the ITAR may only be made if the conditions to which the superannuation income stream is subject permit the amount of payments in a year to vary other than in the circumstances set out in sub-paragraphs (a)(i)-(iv). Effectively this means that an election can only be made if the payment amount in a year is capable of being varied other than by way of: indexation under the pension rules; the application of the family law splitting rules; the commutation of the income stream; or the payment of an assessment of excess contributions tax.

Section 34 of the DFRDBA allows a person to be reclassified at a future time.

Despite the absence of medical reviews initiated by the CSC there is the possibility that a person can request a medical review in seeking to be reclassified from having a Class B incapacity to a Class A incapacity. If successful, their annual payment amount would change to double the amount of Class B invalidity pay.

We consider that in the circumstance where the annual amount of payments from an DFRDB invalidity pay or pension benefit can be altered because of section 34, this reflects a circumstance other than one set out in sub-paragraphs 995-1.03(a)(i)-(iv). Accordingly a person in receipt of a DFRDB invalidity pay may make an election under regulation 995-1.03 of the ITAR in respect of a payment provided they make the election before the payment from their pension is made.

Question 5:

Is the invalidity benefit payable to you under the rules of the DFRDBA an employment termination payment?

Answer:

No.

Reasons

Under section 82-130 of the ITAA 1997, a payment is an employment termination payment if each of three conditions is met:

• it is received by a person in consequence of the termination of the person's employment: subparagraph 82-130(1)(a)(i),

• it is received no later than 12 months after that termination: paragraph 82-130(1)(b), and

• it is not excluded from being an employment termination payment by section 82-135 of that Act: paragraph 82-130(1)(c).

Even in the event it could be said that payments made from the DFRDB invalidity benefits meet the first of these conditions, under paragraph (a) of section 82-135 of the ITAA 1997, the payment of a superannuation benefit is not an employment termination payment.

For the reasons set out for question 1 of this ruling, the invalidity pension payments are superannuation benefits. Therefore, your invalidity pension payments are excluded from the definition of employment termination payment under paragraph 82-135(a) of the ITAA 1997.

Further, paragraph 82-135(b) of the ITAA 1997 provides that the payment of a pension is not an employment termination payment. As the word 'pension' as used in that paragraph is not defined, it takes its ordinary meaning.

In Michael James Hammerton v Comcare Australia [1995] AATA 63, the Administrative Appeals Tribunal decided that the retirement pay payable under the DFRDB scheme was a pension within the ordinary meaning of that word. We consider that this position can be consistently applied to the payments of the invalidity pay under the DFRDB scheme.

Consequently, all of the fortnightly pension payments received by you are also excluded from the definition of employment termination payment under paragraph 82-135(b) of the ITAA 1997.

We note that because the invalidity pension is a pension within the ordinary meaning of the term 'pension', it may be included in assessable income as ordinary income under section 6-5 of the ITAA 1997 if it was not otherwise regarded as a superannuation benefit.

Question 6:

Is the invalidity benefit paid from the DFRDB paid in respect of an interest that is a defined benefit interest under section 291-175 of the ITAA 1997.

Answer:

Yes.

Reasons

Subsection 291-175(1) of the ITAA 1997 provides that an individual's superannuation interest is a 'defined benefit interest' to the extent it defines the individual's entitlement to superannuation benefits payable from the interest by reference to (relevantly for this advice):

(a) the individual's salary or allowance in the nature of salary at a particular date or averaged over a period; …

(d) specified conversion factors.

However, subsection 291-175(2) provides that the interest is not a defined benefit interest if it defines that entitlement solely by reference to one or more of the following:

(a) disability superannuation benefits;

(b) superannuation death benefits;

(c) payments of amounts mentioned in paragraph 307-10(a).

As a member of the DFRDB, an individual enjoys a range of potential prescribed entitlements under the scheme where the actual entitlement derived by the individual or their dependants upon the individual ceasing to be a member of the scheme is contingent upon the happening of some future event. Specifically, while a member of the scheme an individual has a contingent entitlement to benefits variously payable upon retirement, resignation, retrenchment and invalidity. Their dependants may also have a contingent entitlement to receive payments from the scheme on their death.

In the case of these contingent entitlements, the member's benefit is derived under the scheme rules by a formula that refers to the person's annual rate of pay immediately before retirement and taking into account the number of complete years in their total period of effective service. Retirement pay can be commuted and factors are used to calculate that amount and the retirement pay after commutation. Accordingly, we consider that a member's interest in the DFRDB is a defined benefit interest under subsection 291-175(1) of the ITAA 1997.

Further, as a member of the DFRDB has a contingent entitlement to benefits that may be paid on retirement or resignation or retrenchment as well as upon invalidity or death, subsection (2) cannot apply as their interest in the DFRDB is not defined 'solely' by reference to disability superannuation benefits or death benefits as defined and, for the reasons set out in the answer to question 2, the invalidity pensions do not give rise to payments to which paragraph 307-10(a) applies.

This conclusion is not affected by the fact a person is actually in receipt of invalidity pay. This is because the right to the pension itself is not the only right the person has in the scheme.

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