Edited version of private ruling

Authorisation Number: 1012012277046

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Ruling

Subject: request for a determination of the deductible amount of UPP of a foreign pension or annuity

Question Asked

Are you entitled to an annual and part year deductible amount in respect of the undeducted purchase price (UPP) of your foreign pension?

Answer

Yes, you are entitled to an annual and part year deductible amount in respect of the undeducted purchase price of your foreign pension.

This ruling applies for the following periods:

2010-11 income year

2011-12 income year

The scheme commences on:

On or after 1 July 1983

Relevant facts:

You receive a pension from a retirement fund established and managed outside Australia.

There is no Taxation Ruling or Taxation Determination published which provides for an alternative calculation or Commissioner's discretion under section 27H(3) of the Income Tax Assessment Act 1936 (ITAA 1936).

The international tax agreement between Australia and the country of origin of your pension provides that the pension is taxable in Australia.

Your assessable income includes your pension income.

Your pension is paid by a foreign pension fund.

All the pension is payable to you.

The pension became payable on or after 1 July 1983.

The pension is payable for life, and reverted to you on the death of your spouse.

You have provided a copy of information from your pension provider to assist the Commissioner in determining the amount of contributions.

The residual capital value of the pension is nil.

Relevant legislative provisions

Income Tax Assessment Act 1936 Section 20

Income Tax Assessment Act 1936 Section 27H

Income Tax Assessment Act 1936 Subsection 27H(2)

Income Tax Assessment Act 1936 Subsection 27H(3)

Income Tax Assessment Act 1936 Subsection 27H(4)

Income Tax Regulations 1936 Regulation 9

Income Tax Assessment Regulations 1997 Regulation 960-50.01

Reasons for decision

Please note that all references to "pension" cover both pensions and annuities.

Section 27H of the Income Tax Assessment Act 1936 (ITAA 1936) operates to include in assessable income the amount of any pension derived by a taxpayer during a year of income reduced by the annual deductible amount.

The deductible amount is deemed to be a return of part of your contribution towards the purchase of the pension.

The deductible amount is calculated based on the UPP of your pension.

The UPP is the amount you contributed towards the purchase price of your pension for which you did not claim, and were not eligible to claim, a tax deduction in Australia. Contributions made by an employer or by another person under an agreement to which the employer was a party, cannot form part of the UPP of the pension.

Under subsection 27H(2) of the ITAA 1936 and subject to subsection 27H(3) or (3A) of the ITAA 1936, the annual deductible amount of a superannuation pension is ascertained in accordance with the formula:

A(B - C)

D

Where:

A = is the relevant share of the pension payable to the taxpayer in relation to the year

of income (if all of the pension is payable to the taxpayer, A = 1)

B = is the amount of the UPP of the pension

C = is the residual capital value, and

D = is the relevant number in relation to the pension.

Under subsection 27H(4) of the ITAA 1936, when a pension is payable during the lifetime of a person, the 'life expectation factor' is to be used as the relevant number.

Regulation 9 of the Income Tax Regulations 1936 states that for the purposes of the definition of life expectation factor in subsection 27H(4) of the ITAA 1936, the Australian Life Tables published by the Australian Government Actuary are to be used.

In Taxation Determination TD 2006/72 Income tax: does the relevant number determined for the purposes of working out the deductible amount of a superannuation pension or annuity under subsection 27H(2) of the Income Tax Assessment Act 1936 take into account the life expectancy of a reversionary pensioner or annuitant?, the Commissioner states, in paragraph 1, that the relevant number used to calculate the deductible amount of a superannuation pension that is payable to a person (the original pensioner) for life and on the death of that person is payable to another person for their life (the reversionary pensioner) will be the greater of the life expectancies of the original and reversionary pensioners.

The factors for determining the life expectancy are:

· the date the pension first became payable;

· your age when the pension commenced;

· your spouse's age when the pension commenced.

By substituting your relevant information into the formula the annual deductible amount (rounded) is obtained.

For the 2002-03 and prior income years, section 20 of the ITAA 1936 requires all income and expenses to be expressed in Australian currency for the purposes of the Act.

In accordance with the currency translation rules contained in section 20 of the ITAA 1936 and clarified in Taxation Ruling IT 2498 Income tax: foreign tax credit system: currency translation of foreign income: trading stock and depreciating plant: basis of returning income: capital gains/losses, pensions received in foreign currency should be translated to Australian currency on the following basis:

(a) where pensions are remitted to Australia - at the exchange rate applicable

when each instalment of pension is received, or

(b)where pensions are not remitted to Australia - at the exchange rate

applicable at the end of the year of income.

However, in recognition of the difficulties that a strict application of the law may cause some pensioners, translation of remitted pensions on the basis of the average annual exchange rate for the relevant year of income will be accepted.

Similarly, where the average annual exchange rate is used to translate the foreign pension amount received in an income year, the deductible amount may also be translated to Australian dollars at the average annual exchange rate for the income year.

The average exchange rates are available from our superannuation information line on 13 10 20 or visit our website at www.ato.gov.au/super.