Edited version of your private ruling

Authorisation Number: 1012026302672

This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.

Ruling

Subject: Lump sum death benefit from foreign superannuation fund

Question:

Is a portion of a lump sum payment received from a foreign superannuation fund included in your assessable as applicable fund earnings under section 305-70 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

Yes

This ruling applies for the following period:

Year ended 30 June 2011

The scheme commenced on:

1 July 2010

Relevant facts and circumstances:

You are over 55 years of age.

Your spouse (the deceased) worked for an overseas employer in an overseas country until you both migrated to Australia a number of years ago.

The decease was a member of a foreign superannuation fund (the Fund).

No superannuation contributions have been made by the deceased to the Fund.

The deceased received a letter many years ago from the employer stating that the deceased was granted a deferred pension in the foreign currency per annum commencing to be payable when the deceased attained age 65.

In the 2003-04 income year, the deceased received a letter from the Fund stating that the deceased's pension was to be payable for life and was to provide a 50% spouse's pension in the event of the deceased's death. The letter also stated that at the date of the deceased's retirement the spouse's pension payable upon the deceased's death will be a specified amount in foreign currency per annum, irrespective of whether or not the deceased decided to commute part of the deceased's pension to a lump sum.

A full scheme pension was paid to the deceased in the 2003-04 income year.

The deceased's pension was guaranteed to increase in line with the rise in the Retail Prices Index.

The deceased died in the 2010-11 income year.

In the 2010-11 income year, the Fund advised you that due to the death of the deceased you were entitled to a pension. Alternatively, you were offered a full commutation of the pension for a 'one off' gross lump sum payment.

You accepted the offer for full commutation of the pension. A lump sum payment was made directly to you by the Fund in the 2010-11 income year.

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 305-75(2).

Income Tax Assessment Act 1997 Subsection 305-75(3).

Income Tax Assessment Act 1997 Subsection 305-75(5).

Income Tax Assessment Act 1997 Subsection 305-75(6).

Income Tax Assessment Act 1997 Subsection 307-5(1)

Income Tax Assessment Act 1997 Section 307-65

Income Tax Assessment Act 1997 Section 960-50.

Income Tax Assessment Act 1997 Subsection 960-50(1).

Income Tax Assessment Act 1997 Subsection 995-1(1).

Reasons for decision

Summary

The lump sum benefit you received as a result of the death of a fund member from a foreign superannuation fund is assessable as 'applicable fund earnings'. The applicable fund earnings represents the increase or growth in the Fund during the period you are a resident of Australia.

In this case, the applicable fund earnings in relation to the lump sum benefit less any contributions made to the Fund.

A superannuation death benefit is tax-free in Australia only when it is paid:

· by a complying Australian superannuation fund, and

· to a dependant of the deceased.

Detailed Reasoning

Superannuation lump sum

A superannuation lump sum is described in section 307-65 of the Income Tax Assessment Act 1997 (ITAA 1997) as a superannuation benefit that is not a superannuation income stream. The table contained in subsection 307-5(1) identifies the different types of superannuation benefits. One such payment is a superannuation death benefit.

A superannuation death benefit is described in Column 3 of item 1 of the table in subsection 307-5(1) of the ITAA 1997 as:

A payment to you from a superannuation fund, after another person's death, because the other person was a fund member.

A death benefit payment made by a superannuation fund is tax-free in Australia only when it is paid:

· by a complying Australian superannuation fund, and

· to a dependant of the deceased.

In your case, the Fund paying the death benefit is a foreign superannuation fund established in an overseas country. Foreign superannuation funds are not regulated in Australia, and so cannot be complying superannuation funds.

Consequently, the payment is not tax-free in Australia, even though it is not subject to tax in the overseas country. Such a payment is, however, taxable in Australia under section 305-70 of the ITAA 1997.

Lump sum payment paid by a foreign superannuation fund

The applicable fund earnings in relation to a lump sum payment from a foreign superannuation fund that is received more than six months after a person has become an Australian resident will be assessable under section 305-70 of the ITAA 1997. The remainder of the lump sum payment is not assessable income and is not exempt income.

The 'applicable fund earnings' is the amount worked out under either subsections 305-75(2) or 305-75(3) of the ITAA 1997. Subsection 305-75(2) applies where the person was an Australian resident at all times during the period to which the lump sum relates. Subsection 305-75(3) applies where the person becomes an Australian resident after the start of the period to which the lump sum relates.

Before determining whether an amount is assessable under section 305-70 of the ITAA 1997, it is necessary to ascertain 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.

Foreign superannuation fund

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

(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.

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

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 that 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 funds 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.

Thus, 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.

The Fund, which was established and administered overseas, is not an Australian superannuation fund as defined in subsection 295-95(2) of the ITAA 1997. Based on the information available, the Commissioner considers that the Fund is a foreign superannuation fund as defined in subsection 995-1(1) of the ITAA 1997.

Assessable Amount

As noted above, the applicable fund earnings in relation to a lump sum payment from a foreign superannuation fund will be included in a person's assessable income where the payment is received more than six months after a person has become an Australian resident.

You became a resident of Australia for tax purposes a number of years ago (the residency date). In the 2010-11 income year the deceased passed away and you became entitled to a lump sum benefit from the Fund. The Fund paid you a lump sum benefit in the 2010-11 income year. The date on which you received the lump sum benefit is more than six months after you became an Australian resident. Accordingly, a portion of the lump sum benefit will be assessable under section 305-70 of the ITAA 1997.

The amount included as assessable income is calculated under subsection 305-75(2) of the ITAA 1997 because you were an Australian resident at all times to which the lump sum relates.

Subsection 305-75(2) of the ITAA 1997 states:

If you were an Australian resident at all times during 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 part of the lump sum that is attributable to contributions made by or in respect of you on or after the day when you became a member of the fund (the start day);

(ii) the part of the lump sum (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) add the total of all your previously exempt fund earnings (if any) covered by subsections (5) and (6).

The calculation under this section effectively means that you will be assessed only on the increase in value of your husband's entitlement in the Fund while you were a resident of Australia. That is, you will only be assessed on the accretion in the Fund less any contributions made since you became a resident of Australia.

Furthermore, any amounts representative of earnings during periods of non-residency and certain capital amounts previously transferred into the paying fund do not form part of the taxable amount when the overseas benefit is paid.

Foreign currency conversion

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

Calculation of Assessable Amount

Paragraph 305-75(2)(a) of the ITAA 1997 excludes certain amounts comprising the lump sum from being assessable as applicable fund earnings.

The assessable amount excludes contributions that were made to the Fund after the residency date, either by your late husband, his employer or a third party. Similarly, transfers made to the Fund from other foreign superannuation funds, that accumulated in the period before you were a resident of Australia are also excluded.

You may need to contact the Fund for these amounts.

Paragraph 305-75(2)(b) of the ITAA 1997 requires that the amount calculated above be subtracted from the amount that was vested in you when the lump sum was made by the Fund.

Therefore, this amount, adjusted for contributions and transfers, is to be included in your assessable income for the 2010-11 income year.