Edited version of your private ruling

Authorisation Number: 1012343042431

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: Undeducted Purchase Price (UPP) of your foreign pension

Question 1

Are you entitled to a deductible amount in respect of the undeducted purchase price (UPP) of your foreign pension?

Answer

Yes.

This ruling applies for the following period:

2011-12 income year

The scheme commenced on:

On or after 1 July 1983

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

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

The international tax agreement between Australia and Country X (the country in which the retirement fund is established and managed) provides that the pension is taxable in Australia.

Your assessable income includes your pension income.

The pension is payable for life and on your death reverts to your spouse.

All the pension is payable to you.

Taxation Ruling Income Tax 2554 Australia/Italy double taxation agreement: Italian pensions derived by Australian residents provides for an alternative calculation of the deductible amount under section 27H of the Income Tax Assessment Act 1936 (ITAA 1936).

You receive your pension on a quarterly basis.

Relevant legislative provisions

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 Assessment Act 1997 Section 960-50

Income Tax Regulations 1936 Regulation 9

Income Tax Assessment Regulations 1997 Regulation 960-50

Reasons for decision

Summary

Your annual deductible amount will apply for the 2011-12 financial year.

Deductible amount

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 deductible amount.

The deductible amount is calculated based on the undeducted purchase price (UPP). 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.

Each year a portion of the UPP can be used to reduce the pension income in your tax return. This is called the deductible amount and is deemed to be a return of part of your contribution towards the purchase of the pension.

Taxation Ruling for the foreign country double taxation agreement states pensions derived by Australian residents considers the taxation treatment of certain Country X pensions received by Australian residents.

The ruling states that for a part of a foreign pension to be exempt from Australian tax, the pension must be paid by a foreign superannuation or retirement fund and the pension must be purchased by contributions to the fund and identified as such by the fund.

Your Country X pension meets these requirements.

Therefore, you are entitled to a deductible amount of the UPP of your pension for the relevant financial year.

TR IT 2554 states that in recognition of the difficulties for pensioners in obtaining information relating to their contributions, it has been decided to accept that the portion of the pension identified as being derived from the contributions made by the pensioner (reduced by X% to reflect the interest element in that component of the pension) is the annual exclusion amount.

In working out the contributive amount for a particular year, it must be noted that the figures supplied are based on calendar years and therefore Y years' statements are required to calculate the amount for each Australian financial year.

Therefore the formula for calculating the deductible amount of your UPP for any year is:

(amount of contributive portion for 20XX and 20YY calendar years) x 90%

2

In your case, the deductible amount of your UPP for the relevant financial year has been calculated in accordance with the information supplied by the pension fund for your contributive amounts for the relevant calendar years in accordance with the above formula.

Note: Please do not use this amount for earlier or future financial years as the deductible amount varies from year to year based on the contributive amounts for each year. However, you may use the above formula to calculate your deductible amount for each future year based on the information provided by the pension fund for the Y calendar years to cover the relevant Australian financial year.

For the 2003-04 and subsequent financial years, subsection 960-50(1) of the Income Tax Assessment Act 1997 (ITAA 1997) requires an amount in a foreign currency to be translated into Australian currency. Subsection 960-50(4) of the ITAA 1997 further requires any foreign currency elements in a calculation to be translated before the final amount is worked out.

In accordance with the currency translation rules contained in section 960-50 of the ITAA 1997 and clarified in Taxation Determination TD 2006/54 Income tax: how does a taxpayer work out the amount to be included in assessable income under section 27H of the Income Tax Assessment Act 1936 for a superannuation pension or annuity that is payable in a foreign country pensions received in foreign currency should be translated to Australian currency on the following basis:

(a) if the amount is received at or before the time when it is derived - the amount is to be translated to Australian currency at the exchange rate applicable at the time of receipt; or

(b) in any other case - the amount is to be translated to Australian currency at the exchange rate applicable when it is derived.

As a general rule, the deductible amount is translated to Australian currency using the same exchange rate applying to the pension.

Alternatively, regulation 960-50 of the Income Tax Assessment Regulations 1997 (ITR 1997) and Schedule 2 to the ITR 1997 allow pensions received in foreign currency and the deductible amount to be translated to Australian currency at the average exchange rate for the financial year. This is provided the conditions outlined in Schedule 2 to the ITR 1997 are satisfied.

Where the pension is received as a series of payments made over the course of an financial year, and provided the average exchange rate is considered a reasonable approximation of exchange rates, the conditions outlined in Schedule 2 to the ITR 1997 will be satisfied.

In your case, as you received your pension payments on a quarterly basis, it is accepted that you are entitled to use the average exchange rate for the 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.

Important information to note

Income tax returns may be amended within two years from the date upon which the Commissioner gives notice of the assessment to the individual (for assessments for the 2004-05 and later financial years) or within four years from the date upon which the tax became due and payable under the assessment (for assessments for financial years prior to the 2004-05 financial year).

If you choose to rely on this private ruling, you may include the annual deductible amount of the UPP as advised by your private ruling. Please note that the deductible amount should only be included if you have declared your pension income.