Edited version of your written advice

Authorisation Number: 1051451381042

Date of advice: 7 November 2018

Ruling

Subject: Lump sum payment from a foreign superannuation fund

Question

Is any part of the lump sum received by a person (the Taxpayer) from a foreign superannuation fund (the Foreign 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 ended 30 June 2018

The scheme commences on:

1 July 2017

Relevant facts and circumstances

The Taxpayer migrated to Australia from an overseas country and became a resident of Australia for taxation purposes.

While living overseas, the Taxpayer purchased six separate pension policies from the Foreign Fund.

The administrators of the Foreign Fund are unable to provide the amount in the Foreign Fund that was vested in the Taxpayer in respect of each pension on the day before their residency date.

The administrators of the Foreign Fund are able to provide the amount that was vested in the Taxpayer in respect of each pension on a date more than five years after the date that the Taxpayer became a resident.

Each pension is a market linked pension and is reliant only on market fluctuations.

The amount equal to the total value of all the pensions was transferred to an Australian complying superannuation fund (the Australian Fund).

In the 2017-18 income year, the Australian Fund received a single lump sum payment (the Payment) from the Foreign Fund which represented the balances of each pension account.

The Taxpayer made a contribution into the first pension policy after becoming a resident of Australia for tax purposes.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subdivision 305-B

Income Tax Assessment Act 1997 Section 305-70

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 Section 960-50

Income Tax Assessment Act 1997 Subsection 960-50(1)

Income Tax Assessment Act 1997 Subsection 960-50(4)

Reasons for decision

Summary

A part of the Payment the Taxpayer received from the Foreign Fund should be included in the Taxpayer’s assessable income for the 2017-18 income year as the applicable fund earnings amount of the Payment.

Detailed reasoning

Lump sum payments from foreign superannuation funds

The tax treatment of lump sums received from certain foreign superannuation funds is set out in Subdivision 305-B of the ITAA 1997.

If a person receives a lump sum payment from a foreign superannuation fund more than six months after the person becomes a resident of Australia, section 305-70 of the ITAA 1997 applies to include the applicable fund earnings (if any) in the person’s assessable income.

In this case, based on the information provided, the Foreign Fund is considered to be a foreign superannuation fund for the purposes of Subdivision 305-B of the ITAA 1997.

In this instance, as the Taxpayer received the Payment more than six months after their residency date, section 305-70 of the ITAA 1997 applies to the lump sum received so that the amount of applicable fund earnings (if any) in respect of the lump sum is included in the Taxpayer’s assessable income for the 2017-18 income year.

Applicable fund earnings

The applicable fund earnings amount is 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) applies where the person becomes an Australian resident after the start of the period to which the lump sum relates.

As the Taxpayer became an Australian resident after the start of the period to which the lump sum relates, the applicable fund earnings is worked out in accordance with subsection 305-75(3) of the ITAA 1997 which states:

If you become an Australian resident after the start 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 following amounts:

(i) The amount in the fund that 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 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).

*To find definitions of asterisked terms, see the Dictionary, starting at section 995-1.

The effect of section 305-75 of the ITAA 1997 is that the Taxpayer is assessed only on the income they earned on their benefits in the Foreign Fund during the residency period. Earnings made during periods of non-residency, and contributions and transfers into the Foreign Fund, do not form part of the taxable amount when the lump sum 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) 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:

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

n then, calculate the other amounts.

In ATO Interpretative Decision ATO ID 2015/7: Income tax/Superannuation Foreign currency translation rules in working out ‘applicable fund earnings’ under section 305-75 of the ITAA 1997 (ATO ID 2015/7), the Commissioner considered the foreign currency translation rules in relation to lump sum transfers from foreign superannuation funds. The Commissioner determined that it is reasonable to use the exchange rate applicable at the time of receipt of the lump sum to work out the Australian dollar equivalent of the amount in a foreign superannuation fund vested in a taxpayer on a certain date.

Therefore, for the purposes of section 305-70 of the ITAA 1997, the ‘applicable fund earnings’ amount in respect of the lump sum received from the Foreign Fund should be calculated by deducting the Australian dollar equivalent of the amount in the Foreign Fund vested in the Taxpayer just before the residency date from the amount vested in the Taxpayer on the day of receipt. Both amounts should be translated using the exchange rate applicable on the day of receipt.

Calculation of applicable fund earnings amount

The calculation of the applicable fund earnings amount in respect of the lump sum received by the Taxpayer from the Foreign Fund is shown in the example below. As discussed, any amounts in pound sterling are translated into Australian dollars using the exchange rate applicable on the day of receipt.

Item	Description	Amount in GBP(£)	Amount in AUD ($)
A	The estimated value of the Taxpayer’s interest in Foreign Fund on the day before residency	15,000	26,000
B	Part of the lump sum attributable to contributions into the Foreign Fund	1,000	1,700
C	Part of the lump sum attributable to amounts transferred from other foreign funds	0.00	00
D	A + B + C (The step outlined in paragraph 305-75(3)(a) of the ITAA 1997)	An amount	27,700
E	Amount in the Foreign Fund vested in the Taxpayer when the lump sum was paid	50,000	86,000
F	E - D (The step outlined in paragraph 305-75(3)(b) of the ITAA 1997)		58,300
G	The proportion of the total days during the period (from the Residency Date to the date of receipt) of which the Taxpayer was an Australian resident	1	1
H	Previously exempt fund earnings (if any)	0.00	0.00
I	F x G + H = Applicable Fund Earnings (The steps outlined in paragraphs 305-75(3)(c) and 305-75(3)(d) of the ITAA 1997)		58,300

Therefore, using this example, the applicable fund earnings amount in respect of the Payment received by the Taxpayer from the Foreign Fund that should be included in the Taxpayer’s assessable income for the 2017-18 income year is $58,300.