Edited version of your written advice

Authorisation Number: 1012850983323

Date of advice: 6 August 2015

Ruling

Subject: Applicable fund earnings

Question

Are any part of the amounts transferred by the taxpayer from the Foreign Funds to an Australian superannuation fund 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

Income year ending 30 June 2015

The scheme commenced on

1 July 2014

Relevant facts and circumstances

The Taxpayer migrated to Australia a number of years ago and has been an Australian resident for tax purposes since that date.

While living overseas, the Taxpayer became a member of a number of foreign pension funds (the Foreign Funds). The Foreign Funds were established overseas and their central management and control are in the foreign country.

The Taxpayer cannot access their benefits in the Foreign Funds other than at retirement.

During the 2014-15 income year, the Taxpayer transferred lump sums from the Foreign Funds to the Australian Fund.

The trustee of one of the Funds has advised of the amount in that Fund that was vested in the Taxpayer on the day before the Taxpayer became an Australian resident.

The trustees of the remaining Funds were unable to provide the value that was vested in the Taxpayer on the day before the Taxpayer became an Australian resident. However, the applicant has subsequently accepted estimated values for each of the funds.

Since becoming an Australian resident, the Taxpayer has made no contributions to the Foreign Funds.

The Taxpayer no longer holds any interests in the Foreign Funds.

The Taxpayer commenced the transfer process before 13 February 2015 with the understanding that the previous view of translating foreign currency into Australian dollars would apply to the transfer.

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 Section 305-75

Income Tax Assessment Act 1997 Section 305-80

Income Tax Assessment Act 1997 Section 960-50

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

All legislative references are to the ITAA 1997 unless otherwise indicated.

Reasons for decision

Summary

The 'applicable fund earnings' amount in respect of the lump sums transferred from the Foreign Funds to the Australian Fund should be included in the Taxpayer's income tax return for the 2014-15 income year.

However, as the Taxpayer no longer has an interest in the Foreign Funds, they are eligible to elect to have all or part of the applicable fund earnings treated as assessable income of the Australian Fund.

Detailed reasoning

Lump sum payments transferred from foreign superannuation funds

Section 305-70 of the ITAA 1997 provides that an Australian resident taxpayer who receives a lump sum from a foreign superannuation fund more than six months after becoming an Australian resident must include the 'applicable fund earnings' of the lump sum (if any) in their assessable 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. Subsection 305-75(3) of the ITAA 1997 applies where the person was not 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.

Meaning of 'foreign superannuation fund'

A foreign superannuation fund is defined in subsection 995-1(1) as a superannuation fund that is not an Australian superannuation fund.

In accordance with subsection 295-95(2), 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 …

Based on the above, a superannuation fund that is established outside of Australia and has its central management and control outside of Australia is not an Australian superannuation fund. Consequently, such a fund would be a foreign superannuation fund as defined in subsection 995-1(1) of the ITAA 1997.

The meaning of 'superannuation fund'

'Superannuation fund' is defined in subsection 995-1(1) of the ITAA 1997 as having the meaning given by section 10 of the Superannuation Industry (Supervision) Act 1993 (SISA) which states:

superannuation fund means:

(a) a fund that:

(i) is an indefinitely continuing fund; and

(ii) is a provident, benefit, superannuation or retirement fund; or

(b) a public sector superannuation scheme.

The High Court examined both the terms 'superannuation fund' and 'fund' in Scott v. Federal Commissioner of Taxation (No 2) (1966) 40 ALJR 265; (1966) 14 ATD 333; (1966) 10 AITR 290. In that case, Justice Windeyer stated:

…I have come to the conclusion that there is no essential single attribute of a superannuation fund established for the benefit of employees except that it must be a fund bona fide devoted as its sole purpose to providing for employees who are participants money benefits (or benefits having a monetary value) upon their reaching a prescribed age. In this connexion "fund", I take it, ordinarily means money (or investments) set aside and invested, the surplus income therefrom being capitalised. I do not put this forward as a definition, but rather as a general description.

Meaning of '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. In that case, Justice Kitto held that a fund had to exclusively be a 'provident, benefit or superannuation fund' and that 'connoted a purpose narrower than the purpose of conferring benefits in a completely general sense…'. This narrower purpose meant that the benefits had to be 'characterised by some specific future purpose' such as the example given by Justice Kitto of a funeral benefit.

In accordance with section 62 of the SISA (Sole purpose test), a regulated superannuation fund must be maintained solely for the provision of benefits specified in subsection 62(1) of the SISA. The 'core purposes' specified in that subsection relate to providing retirement or death benefits for, or in relation to, fund members; and the 'ancillary purposes' relate to the provision of benefits on the cessation of a member's employment, other death benefits and other approved benefits. '

Notwithstanding the SISA applies only to 'regulated superannuation funds' (as defined in section 19 of the SISA), and foreign superannuation funds do not qualify as regulated superannuation funds as they are established and operate outside Australia, the Commissioner views the SISA (and the Superannuation Industry (Supervision) Regulations 1994) as providing guidance as to what 'benefit' or 'specific future purpose' a superannuation fund should provide.

In this case, it is clear that the Foreign Funds were established outside of Australia and that their central management and control are outside of Australia. In addition, the Taxpayer's benefits in the Foreign Funds are only payable upon retirement. As such, the Foreign Funds would meet the definition of a superannuation fund.

Therefore, on the basis of the information provided, the Commissioner considers the Foreign Funds to be foreign superannuation funds for the purposes of section 305-70.

Applicable fund earnings

The Taxpayer became a resident of Australia for tax purposes a number of years ago and received the lump sum payments in respect of their entitlements in the Foreign Funds during the 2014-15 income year. As this was more than six months after the Taxpayer became an Australian resident for tax purposes, section 305-70 of the ITAA 1997 applies to include any 'applicable fund earnings' in their assessable income.

The 'applicable fund earnings' amount is worked out under section 305-75 of the ITAA 1997. 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 remainder of 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) 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).

This means that the Taxpayer is assessed only on the income they earned on the benefits in the Foreign Funds less any contributions they made since they became a resident of Australia. Any earnings made during 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 amount 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) sets out the translation of foreign currency.

As noted above 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 amount is the result of a calculation from two other amounts and subsection 960-50(4) of the ITAA 1997 states that when applying section 960-50 of the ITAA 1997 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.

Law Administration Practice Statement PS LA 2011/27 titled 'Matters the Commissioner considers when determining whether the ATO view of the law should only be applied prospectively' (PS LA 2011/27) assist tax officers to determine whether to take action to apply the ATO view of the law in the past years or periods.

Paragraph 4 of PS LA 2011/27 states that:

The law operates from the date of effect of the relevant legislative provision and, accordingly, the ATO would usually apply its view of the law from this date, with effect both before and after the view is formed.

Paragraph 25 of PS LA 2011/27 provides exceptions to this rule and one of those is where there is evidence that ATO conduct has reasonably conveyed a different view of the law on a particular issue. A clear instance of such a situation is where taxpayers have adopted a practice and the ATO has contributed to such a view or practice.

Therefore for the purposes of section 305-70 of the TAA 1997, the previous ATO view for the foreign currency conversion can be used where the taxpayer's transfer documents to the foreign fund authorising the transfer of their lump sum entitlement to a complying Australian superannuation fund occurred prior to 13 February 2015.

Amounts to be used in calculation for the foreign pensions

The Taxpayer's total vested amounts in the foreign pensions on the day before they became an Australian resident are converted into Australian dollars at the exchange rate that applied on that day before residency.

From the facts provided no contributions have been made to the foreign pensions since the Taxpayer migrated to Australia.

The amounts received in the 2014-15 income year are converted into Australian dollars at the exchange rate that applied on the dates the payments were received.

'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 for tax purposes and ceases on the day the lump sum is paid. In the Taxpayer's case, that period would have been from the date they became an Australian resident to the date they received the payment, provided they were a resident for the whole of that period.

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

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

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

This total is then subtracted from the amount determined under paragraph 305 75(3)(b) of the ITAA 1997.

This figure is multiplied by the proportion of the total days determined under paragraph 305-75(3)(c) of the ITAA 1997.

To this figure we add the amounts determined under paragraph 305-75(3)(d) of the ITAA 1997.

Consequently, the Taxpayer will include portions of the lump sum payments transferred from the foreign pensions to the Australian superannuation fund as assessable 'applicable fund earnings' in their return for the 2013-14 income year.

The same method is used to calculate each of the amounts involved in the foreign pensions the Taxpayer held.

Election

A taxpayer who is transferring their overseas superannuation benefits 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 applicable fund earnings 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.

To qualify, the taxpayer must, immediately after the relevant payment is made, no longer have an interest in the paying fund (subsection 305-80(1) of the ITAA 1997).

As the Taxpayer no longer has an interest in the Foreign Funds, they are eligible to make an election to have all, or part, of this amount treated as assessable income of the Australian Fund.