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Ruling

Subject: Lump sum payment from a foreign superannuation fund

Question

Would any part of the lump sum payment transferred from a foreign pension scheme to an Australian superannuation fund be assessable as applicable fund earnings under section 305-70 of the Income Tax Assessment 1997 (ITAA 1997)?

Answer

No.

This ruling applies for the following period:

Year ending 30 June 2013

The scheme commenced on:

1 July 2012

Relevant facts and circumstances

The taxpayer resided overseas and became a member of a foreign pension fund (the Fund).

During the 2005-06 income year, the taxpayer became a resident of Australia for tax purposes.

No contributions have been made by the taxpayer or anyone on behalf of the taxpayer since the taxpayer became a resident of Australia.

On residency date, the total value of the taxpayer's benefits in the Fund was X.

Funds cannot be accessed from the Fund other than at retirement.

During the 2012-13 income year the taxpayer's benefits were Y and you wish to know the applicable fund earnings if the benefits were transferred from the foreign fund to an Australian complying superannuation fund on a specified day.

The taxpayer no longer has an interest in the Fund.

The taxpayer is over 45 years of age.

Relevant legislative provision

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(1)

Income Tax Assessment Act 1997 Section 305-75

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 306-70

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

Superannuation Industry (Supervision) Act 1993 Section 10

Superannuation Industry (Supervision) Act 1993 Section 19

Superannuation Industry (Supervision) Act 1993 Section 62

Reasons for decision

Summary

The applicable fund earnings is calculated by translating the amount received from the Fund at the exchange rate applicable on the day of transfer into Australian dollars (AUD), and deducting from this amount the AUD equivalent of the amount vested in the Fund on the day just before the taxpayer first became an Australian resident at the exchange rate applicable on that day.

No part of the payment transferred from the Fund to the taxpayer's Australian superannuation fund is assessable as the applicable fund earnings relating to the payment transferred on this date is nil.

Detailed reasoning

Lump sum payments transferred from foreign superannuation funds

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 Income Tax Assessment Act 1997 (ITAA 1997). The remainder of the lump sum payment is not assessable income and is not exempt income.

The applicable fund earnings is subject to tax at the person's marginal rate. 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 subsection 305-75(2) or (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.

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

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.

Under the definition of Australian superannuation fund in subsection 295-95(2) of the ITAA 1997 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.

Subsection 995-1(1) of the ITAA 1997 defines a superannuation fund as having the same meaning given by section 10 of the Superannuation Industry (Supervision) Act 1993 (SIS Act), which requires that the fund is a provident, benefit, superannuation or retirement fund.

Provident, benefit, superannuation or retirement fund

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 (1967) 41 ALJR 232; (1967) 14 ATD (Mahony).

In that case, Justice Kitto's judgement indicated that a fund does not satisfy any of the three provisions, that is, 'provident, benefit or superannuation fund', if there exist provisions for the payment of benefits 'for any other reason whatsoever'. In other words, though a fund may contain provisions for retirement purposes, it could not be accepted as a superannuation fund if it contained provisions that benefits could be paid in circumstances other than those relating to retirement.

In section 62 of the SIS Act, a regulated superannuation fund must be 'maintained solely' for the 'core purposes' of providing benefits to a member where the events occur:

1. on or after retirement from gainful employment; or

2. attaining a prescribed age; and

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

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

In view of the legislation and the decisions made in Scott and Mahony, the Commissioner's view is that for a fund to be classified as a superannuation fund, it must exclusively provide a narrow range of benefits that are characterised by some specific future purpose. That is, the payment of superannuation benefits upon retirement, invalidity or death of the individual or as specified under the SIS Act.

Therefore, in order for the lump sum payment from the overseas fund to be considered a payment from a foreign superannuation fund as defined in subsection 995-1(1) of the ITAA 1997, it must also satisfy the requirements set out in subsection 295-95(2) of the ITAA 1997. This means that it should not be an Australian superannuation fund as defined in that subsection but must be a provident, benefit, superannuation or retirement fund as discussed above.

In the present case the foreign fund is established outside of Australia with its central management and control outside of Australia. Therefore the Fund is not an Australian superannuation fund as defined in subsection 295-95(2) of the ITAA 1997.

The documentation provided in relation to the terms and conditions of the overseas fund indicate benefits are only paid on retirement and the fund would meet the definition of superannuation fund. In addition, it is clear the payer of the lump sum payment is established outside of Australia with its central management and control outside of Australia. Therefore, on the basis of the information provided, the Commissioner considers the lump sum payment you received is from a foreign superannuation fund as defined in subsection 995-1(1) of the ITAA 1997.

Applicable fund earnings

The taxpayer became a resident of Australia for tax purposes during the 2005-06 income year and has requested a calculation if the payment was made on a specified date during the 2012-13 income year. As this is more than 6 months after the taxpayer became an Australian resident section 305-70 of the ITAA 1997 applies to include the 'applicable fund earnings' (if any) as assessable income.

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

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:

Work out the total of the following amounts:

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;

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;

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:

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 tax);

Multiply the resulting amount by the proportion of the total days during the period when you were an Australian resident;

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

In short, your client is assessed only on the income earned (the accretion) in respect of the Fund less any contributions your client made since they became a resident of Australia. Further, any amounts representative of earnings during the periods 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

Subsection 960-50(1) of the ITAA 1997 states that an amount in a foreign currency is to be translated into Australian dollars (A$). The applicable fund earnings is the result of a calculation from two other amounts and subsection 960-50(4) states that when applying section 960-50 to amounts that are elements in the calculation of another amount you need to:

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

Then, calculate the other amounts.

The table in subsection 960-50(6) of the ITAA 1997 sets out the translation rules. Only the following items are relevant to determining the issue in your case:

· item 11 which deals with a receipt or payment to which none of the other items apply, and

· item 11A which applies to amounts that are neither receipts nor payments and to which none of the other items apply.

Item 11 of the table in subsection 960-50(6) of the ITAA 1997 applies to a receipt or payment where none of the other items applies. The payment your client finally received is not included in any of the other items in the table so it will fall within item 11. Under this item, the payment is translated into Australian dollars at the exchange rate applicable at the time of receipt.

When the amount in the foreign fund that was vested in your client just before he became a resident of Australia (subparagraph 305-75(3)(a)(i) of the ITAA 1997) is determined of the vested amount expressed in the foreign currency.

Regulation 960-50.01 of the Income Tax Assessment Regulations 1997 (ITAR) modifies the table in subsection 960-50(6) of the ITAA 1997 to include item 11A that applies to amounts other than receipts and payments, and for which none of the other items apply. Consequently the vested amount is translated into Australian dollars at an exchange rate that is reasonable having regard to the circumstances.

Therefore, for the purposes of section 305-70 of the ITAA 1997, the 'applicable fund earnings' should be calculated by translating the amount received from the foreign fund at the exchange rate applicable on the day of receipt of Australian dollars and deducting from this amount the Australian dollar equivalent of the amount vested in the fund at the exchange rate applicable just before the day your client first became an Australian resident.

Amounts to be used in calculation

You advised that the value of the benefit in the Fund on the day before your client became a resident of Australia was X. This is converted into Australian dollars at the exchange rate that applied on that day which converts the amount of X to X.

From the facts provided no contributions have been made to the Fund since your client migrated to Australia.

Furthermore, no amounts were transferred into the Fund from other foreign superannuation funds during the period.

The amount the taxpayer would receive on the specified payment date is Y. This amount is converted into Australian dollars at the exchange rate that applied on that day which converts the amount of Y to Y.

In accordance with the Commissioner's view in ATO Interpretative Decision ATO ID 2009/124, '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 and ceases on the day the lump sum is paid. Assuming that your client was a resident for the whole of both of those periods, the Australian resident days and the total days are the same, and so the proportion to be used in the calculation is 1.

There are no previously exempt fund earnings in relation to the lump sum.

Therefore, applying subsection 305-75(3) to the taxpayer's circumstances, the amounts to be used in calculating the applicable fund earnings are as follows:

305-75(3)(a)(i) X

305-75(3)(a)(ii) Nil

305-75(3)(a)(iii) Nil

305-75(3)(b) Y

305-75(3)(c) 1

305-75(3)(d) Nil

Calculation of the assessable amount of the payment from the foreign Fund

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

X + nil + nil = X.

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

Y less X is Z negative.

This figure is multiplied by the proportion of the total days determined under paragraph 305-75(3)(c) - '1'.

(Z) x 1 = (Z).

To this figure we add the amounts determined under paragraph 305-75(3)(d) - nil.

(Z) + nil = (Z).

As the amount is less than zero, using the specified transfer date would result in no amount of the benefits transferred being included as assessable 'applicable fund earnings' in the 2012-13 income year.