Edited version of your private ruling

Authorisation Number: 1012522518094

Ruling

Subject: Lump sum payment from a foreign superannuation fund

Question

Is any part of the benefits transferred from pension schemes in the overseas country to an Australian superannuation fund assessable as applicable fund earnings under section 305-75 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 2013

Year ending 30 June 2014

The scheme commences on:

1 July 2012

Relevant facts and circumstances

You were a member of two pension funds in the overseas country, being the following:

· Fund 1, and

· Fund 2.

The values of your benefits on the day before your residency date were:

Your benefits were transferred from the overseas funds to a complying superannuation fund in Australia as follows:

You no longer have an interest in the overseas pension funds.

Since you migrated to Australia there have been no contributions to these pension funds.

Funds cannot be accessed from these pension funds in the overseas country other than at retirement.

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 305-70(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

In respect of the payment received from Fund 1, no part of the payment transferred to your Australian superannuation fund is assessable in the 2013-14 income year as the 'applicable fund earnings' relating to the payment are nil.

In respect of the payment received from Fund 2, the 'applicable fund earnings' of $F need to be included in your assessable income in the 2012-13 income year.

However, you can elect to have all or part of the assessable 'applicable fund earnings' treated as assessable income of their complying Australian superannuation fund because immediately after the relevant payments were made, you no longer had an interest in the foreign fund.

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) 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.

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 519 (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:

· on or after retirement from gainful employment; or

· attaining a prescribed age; and

· 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.

The documentation provided in relation to the terms and conditions of the overseas funds indicate benefits are only paid on retirement and the funds would meet the definition of superannuation fund. In addition, it is clear the payers of the lump sum payments are 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 payments you received are from foreign superannuation funds as defined in subsection 995-1(1) of the ITAA 1997.

Applicable fund earnings

You became a resident of Australia for tax purposes and the payments were transferred from two pension funds in the overseas country during the 2012-13 and 2013-14 income years. As the payments were made more than six months after you became an Australian resident, section 305 -70 applies to include the 'applicable fund earnings' in your 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:

(a) Work out the total of the following amounts:

(i) 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;

(ii) 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;

(iii) 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:

(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 tax);

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

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

In short, you are assessed only on the income earned (the accretion) in respect of the overseas pension funds less any contributions you made since you 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:

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

(b) Then, calculate the other amounts.

All rates are published on the ATO's website.

Amounts to be used in calculation

The value of your benefits in the overseas pension funds the day before you became a resident of Australia are converted into Australian dollars at the exchange rate that applied on that day. The exchange rate on that day was A$1 = X1 which converts the amounts in each fund as follows:

From the facts provided no contributions have been made to the two pension funds in the overseas country since you migrated to Australia.

There have been no transfers into the two pension funds in the overseas country from other foreign pension schemes since you became a resident of Australia.

Your benefits were paid from the two overseas pension funds to you in the form of one-off lump sums which were transferred directly into a complying Australian superannuation fund. These amounts were vested for you when the lump sums were paid. The amounts were converted into Australian dollars at the exchange rate that applied on the day they were transferred.

By using the exchange rates that applied on the day the benefits were transferred, the payments from each fund have been converted to Australian dollars as follows:

'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. In your case, there are two relevant periods. You were a resident for the whole of both those periods. Therefore, 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.

Fund 1

Applying subsection 305-75(3) of the ITAA 1997 to your circumstances, the amounts to be used in calculating the applicable fund earnings for Fund 1 are as follows:

305-75(3)(a)(i) $A1

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

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

305-75(3)(b) $C1

305-75(3)(c) 1

305-75(3)(d) Nil

Calculation of the assessable amount of the payment from Fund 1

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

$A1 + nil + nil = $A1

This total is then subtracted from the amount determined under paragraph 305-75(3)(b):

$C1 less $A1 is negative $E.

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

-$E x 1 = -$E.

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

-$E+ nil = -$E.

As the result is less than zero, no amount of the lump sum payment from Fund 1 will be included as assessable 'applicable fund earnings'.

Calculation of the assessable amount of the payment from Fund 2

Similarly, the amounts to be used in calculating the applicable fund earnings for Fund 2 include the amounts advised above for the lump sum received (paragraph 305-75(3)(b) of the ITAA 1997) and the value on 29 June 2013 (subparagraph 305-75(3)(a)(i)). Further, for Fund 2 the following values also apply:

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

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

305-75(3)(c) 1

305-75(3)(d) Nil

This results in an assessable amount of $F, which needs to be included as 'applicable fund earnings' in your tax return for the 2012-13 income year.

Election

A taxpayer transferring their overseas superannuation directly to an Australian complying superannuation fund more than six months after becoming a resident, may be able to elect under subsection 305-80(2) of the ITAA 1997 to have all or part of the payment treated as assessable income of the Australian superannuation fund.

As a result, the amount specified in the election notice will be included as assessable income of the superannuation fund and subject to tax at 15% rather than being included in the taxpayer's assessable income and subject to tax at the taxpayer's marginal rate.

You can elect to have all or part of the 'applicable fund earnings' from Fund 2 treated as assessable income of your complying Australian superannuation fund because immediately after the relevant payments were made, you no longer had an interest in the foreign funds (subsection 305-80(1) of the ITAA 1997).

The election must be in writing, specify the amount to be covered by the election and comply with any requirements specified in the Income Tax Regulations (subsection 305-80(3) of the ITAA 1997).

An amount that is covered by an election under section 305-80 of the ITAA 1997 will not be treated as either a concessional contribution or a non-concessional contribution to the Australian superannuation fund. Consequently, this amount will not count towards your concessional or non-concessional contributions caps for the relevant income year.