Edited version of your written advice

Authorisation Number: 1012883163579

Date of advice: 23 September 2015

Ruling

Subject: Lump sum payment from a foreign superannuation fund

Question

Is any part of the lump sum benefit received from a foreign pension scheme 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 ended 30 June 2015

The scheme commenced on

1 July 2014

Relevant facts and circumstances

You became a member of a foreign pension scheme (the Pension Scheme) in the 19XX income year.

Several years later, you became a resident of Australia.

You lived in Australia for a number of years and then left Australia to live overseas.

Several years ago, you returned to Australia on a permanent basis.

You have provided the amount in the Pension Scheme that was vested in you just before you first becoming an Australian resident.

In the 2014-15 income year you transferred your benefits from the Pension Scheme to an Australian complying superannuation fund.

No contributions have been made to the Pension Scheme since you became a resident of Australia.

No amounts have been transferred into the Pension Scheme from any other foreign superannuation fund since you became a resident of Australia.

The Pension Scheme is considered to be a foreign superannuation fund for the purposes of Subdivision 305-B of the ITAA 1997.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 295-95(2).

Income Tax Assessment Act 1997 Subdivision 305-B

Income Tax Assessment Act 1997 section 305-70.

Income Tax Assessment Act 1997 section 305-80.

Income Tax Assessment Act 1997 section 960-50.

Reasons for decision

Summary

A part of the lump sum benefit received from the Pension Scheme is assessable as applicable fund earnings under section 305-70 of the ITAA 1997.

This amount should be included in your assessable income for the 2014-15 income year.

Detailed Reasoning

Lump sum payments received from certain foreign superannuation funds

Subdivision 305-B of the ITAA 1997 deals with superannuation benefits paid from foreign superannuation funds.

Section 305-55 of the ITAA 1997 restricts the application of that Subdivision to lump sums received from certain foreign superannuation funds, or schemes that pay benefits in the nature of superannuation upon retirement or death.

Generally, where a lump sum paid from a foreign superannuation fund is received within six months after Australian residency or termination of foreign employment, the lump sum is not assessable income and is not exempt income. That is, it is tax-free. It (sections 305-60 and 305-65 of the ITAA 1997).

Where a lump sum paid from a foreign superannuation fund is received more than six months after Australian residency, section 305-70 of the ITAA 1997 applies to include any applicable fund earnings in assessable income.

A lump sum payment from the Pension Scheme was received by you in the 2014-15 income year. As this was more than six months after you became an Australian resident, section 305-70 of the ITAA 1997 applies to the lump sum payment so that an amount of applicable fund earnings (if any) is included in your assessable income for the 2014-15 income year.

Applicable fund earnings

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.

In your case, the amount included as assessable income is calculated under subsection 305-75(3) of the ITAA 1997 because you became 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 (but before you received it) 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).

The effect of subsection 305-75(3) of the ITAA 1997 is that you are assessed only on the income earned while you were a resident of Australia. That is, you are only assessed on the accretion in your benefits 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 (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.

In ATO Interpretative Decision ATO ID 2015/7, the Commissioner considers what is the correct rule for translating foreign currency into Australian dollars for the purposes of working out an individual's 'applicable fund earnings' under section 305-75 of the ITAA 1997 and states that each amount in a foreign currency that is an element in the calculation is to be translated to Australian dollars at the exchange rate applicable at the time of receipt of the relevant superannuation lump sum.

Therefore, for the purposes of section 305-70 of the ITAA 1997, the 'applicable fund earnings' amount should be calculated by deducting the Australian dollar equivalent of the amount in the Pension Scheme vested in you just before the day you first became an Australian resident, from the amount received from the Pension Scheme. The amount should be translated using the exchange rate applicable on the day of receipt of the relevant lump sum.

Calculation of the assessable amount of the payment from the foreign Pension Scheme

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.

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.

The amount worked out above represents your assessable 'applicable fund earnings' in respect of the lump sum received from the Pension Scheme. This amount should be included in your 2014-15 income tax return.

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's 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 under subsection 305-80(1) of the ITAA 1997.