Edited version of your written advice

Authorisation Number: 1051505271748

Date of advice: 17 April 2019

Ruling

Subject: Superannuation death benefit – interdependency

Question 1

Was the beneficiary a death benefits dependant of the deceased person according to section 302-195 of the Income Tax Assessment Act 1997 (ITAA 1997), due to being in an interdependency relationship with the deceased under section 302-200 of the ITAA 1997?

Answer

Yes

Question 2

Are the superannuation lump sum death benefits received by the beneficiary during the 2018-19 income year excluded from assessable income under section 302-60 of the ITAA 1997?

Answer

Yes

This ruling applies for the following period:

Income year ending 30 June 2019

The scheme commences on:

1 July 2018

Relevant facts and circumstances

1. The Beneficiary is the adult child of the Deceased.

2. The Deceased died in 2018.

3. The Beneficiary was older than 18 years when the Deceased died.

4. The Beneficiary received a death benefit payment from the Deceased’s superannuation fund.

5. You applied for a private ruling.

6. You provided the information in the facts listed below.

7. In the Deceased suffered a debilitating medical condition.

8. The Beneficiary cared for the Deceased.

9. The Beneficiary was provided with significant financial support by the Deceased for basic needs.

10. The Deceased cared for the Beneficiary from the start of the medical condition to the Deceased date of death by providing:

● A car for the Beneficiary, including paying for the car related expenses.

● Money and contributions for daily living expenses

11. The Beneficiary lived with the Deceased from diagnosis to the date of death.

12. The Beneficiary provided the Deceased with a high level of care.

13. The Beneficiary provided a signed statutory Declaration stating they were in an interdependency relationship with the Deceased.

14. The Beneficiary was unmarried and did not have a partner while living with the Deceased.

15. Beneficiary provided the Deceased with significant assistance, including personal grooming, mobility assistance, arranging and attending medical appointments, cooking and cleaning.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 302-60

Income Tax Assessment Act 1997 Section 302-145

Income Tax Assessment Act 1997 Section 302-195

Income Tax Assessment Act 1997 Section 302-200

Income Tax Assessment Regulations 1997 Regulation 302-200.01

Income Tax Assessment Regulations 1997 Regulation 302-200.02

Reasons for decision

Summary

1. An interdependency relationship as defined under section 302-200 of the Income Tax Assessment Act (ITAA 1997) existed between the Deceased and the Beneficiary, as all of the requirements set out in the legislation have been satisfied in this case.

2. Therefore, the Beneficiary is a death benefits dependant of the Deceased as defined in section 302-195 of the ITAA 1997.

3. Consequently, the taxable component of the superannuation lump sum death benefit paid to the Beneficiary is not assessable income or exempt income, as per section 302-60 of the ITAA 1997.

Detailed reasoning

Meaning of death benefits dependant

1. Division 302 of the ITAA 1997 sets out the taxation arrangements that apply to the payment of superannuation death benefits. These arrangements depend on whether the person that receives the superannuation death benefit is a dependant of the deceased and whether the amount is paid as a lump sum superannuation death benefit or a superannuation income stream death benefit.

2. A superannuation death benefit is defined in section 307-5 of the ITAA 1997 as:

A payment to you from a superannuation fund, after another person’s death, because the other person was a fund member.

3. A superannuation lump sum is described in section 307-65 of the ITAA 1997 as a superannuation benefit that is not a superannuation income stream, as defined in section 307-70 of the ITAA 1997.

4. The taxable component of a superannuation death benefit paid as a lump sum to a non-dependant beneficiary is assessable income and is taxed under section 302-145 of the ITAA 1997.

5. Where a person who was a dependant of the deceased receives a superannuation death benefit paid as a lump sum, the death benefit is not assessable income and is not exempt income, under section 302-60 of the ITAA 1997.

6. Subsection 995-1(1) of the ITAA 1997 states that the term ‘death benefits dependant’ has the meaning given by section 302-195 of the ITAA 1997. Subsection 302-195(1) of the ITAA 1997 defines a death benefits dependant as follows:

A death benefits dependant, of a person who has died, is:

a) the deceased person’s spouse or former spouse; or

b) the deceased person’s child, aged less than 18; or

c) any other person with whom the deceased person had an interdependency relationship under section 302-200 just before he or she died; or

d) any other person who was a dependant of the deceased person just before he or she died.

7. As the Beneficiary is the adult child of the Deceased, paragraphs 302-195(1)(a) and (b) are not applicable.

8. The definition of death benefits dependant does not stipulate the nature or degree of dependency required to be a dependant of the deceased person in paragraph 302-195(d) of the ITAA 1997. However, it is generally accepted that this paragraph refers to financial dependence.

9. The Beneficiary is not requesting whether they were financially dependent on the Deceased and therefore, paragraph 302-195(d) will not be examined further.

10. To meet the definition of a death benefits dependant, the Beneficiary must have been in an interdependency relationship with the Deceased, in accordance with paragraph 302-195(1)(c) of the ITAA 1997.

Interdependency relationship

11. Under subsection 302-200(1) of the ITAA 1997, an interdependency relationship is defined as:

Two persons (whether or not related by family) have an interdependency relationship under this section if:

● they have a close personal relationship; and

● they live together; and

● one or each of them provides the other with financial support; and

● one or each of them provides the other with domestic support and personal care.

12. Subsection 302-200(2) of the ITAA 1997 states:

In addition, 2 persons (whether or not related by family) also have an interdependency relationship under this section if:

● they have a close personal relationship; and

● they do not satisfy one or more of the requirements of an interdependency relationship mentioned in paragraphs (1)(b), (c) and (d); and

● the reason they do not satisfy those requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability.

13. To assist in determining whether two people have an interdependency relationship, paragraph 302-200(3)(a) of the ITAA 1997 provides that the regulations may specify the matters that are, or are not to be taken into account.

14. Subregulation 302-200.01(2) of the Income Tax Assessment Regulations 1997 (ITAR 1997) states the matters to be taken into account as follows:

● all of the circumstances of the relationship between the persons, including (where relevant):

● the duration of the relationship

● the ownership, use and acquisition of property

● the degree of mutual commitment to a shared life

● the reputation and public aspects of the relationship

● the degree of emotional support

● the extent to which the relationship is one of mere convenience

● any evidence that the parties intend the relationship to be permanent; and

● the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was in an interdependency relationship with the other person.

15. Paragraph 302-200(3)(b) of the ITAA 1997 states that the regulations may specify the circumstances in which two people have, or do not have an interdependency relationship.

16. Regulation 302-200.02 of the ITAR 1997 sets out the circumstances in which two people have an interdependency relationship.

17. Subregulation 302-200.02(2) of the ITAR 1997 provides that an interdependency relationship exists between two people where:

● they satisfy the requirements of paragraphs 302-200(1)(a) to (c) of the ITAA 1997; and

● one or each of them provides the other with support and care of a type and quality normally provided in a close personal relationship rather than by a mere friend or flatmate, for example one person provides significant care for the other person when they are unwell or suffering emotionally.

18. Subregulations 302-200.02(3) and (4) of the ITAR 1997 provide that an interdependency relationship also exists between two people where:

● they have a close personal relationship; and

● they do not satisfy the other requirements set out in subsection 302-200(1) of the ITAA 1997 because:

● they are temporarily living apart, for example because one of them is temporarily working overseas or in gaol; or

● one (or both) of them suffers from a disability.

19. Subregulation 203-200.02(5) of the ITAR 1997 states that two persons do not have an interdependency relationship if one of them provides domestic support and personal care to the other:

● under an employment contract or a contract for services; or

● on behalf of another person or organisation such as a government agency, a body corporate or a benevolent or charitable organisation.

20. All of the conditions in subsection 302-200(1) of the ITAA 1997, or alternatively, subsection 302-200(2) of the ITAA 1997, or one of the tests in regulation 302-200.02 of the ITAR 1997 must be satisfied for a person to be in an interdependency relationship with another person. We deal with each condition in turn, to establish if an interdependency relationship existed.

Close personal relationship

21. The first requirement to be met is specified in paragraph 302-200(1)(a) of the ITAA 1997, which states that the two persons (whether or not related by family) must have a close personal relationship.

22. This requirement is common to all of the tests specified in section 302-200 of the ITAA 1997 and regulation 302-200.02 of the ITAR 1997.

23. A detailed explanation of subsection 302-200(1) of the ITAA 1997 is set out in the Supplementary Explanatory Memorandum (SEM) to the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004, which states:

A close personal relationship will be one that involves a demonstrated and ongoing commitment to the emotional support and well-being of the two parties.

Indicators of a close personal relationship may include:

● the duration of the relationship

● the degree of mutual commitment to a shared life

● the reputation and public aspects of the relationship (such as whether the relationship is publicly acknowledged)

● The above indicators are not an exclusive list and none of them are required for a close personal relationship to exist.

● People who share accommodation for convenience (such as flatmates) or people who provide care as part of an employment relationship or on behalf of a charity are not intended to fall within the definition of a close personal relationship.

24. The Explanatory Statement to the Income Tax Amendment Regulations 2005 (No. 7) stated that:

Generally speaking, it is not expected that children will be in an interdependency relationship with their parents.

25. While this statement does not preclude a child from being in an interdependency relationship with a parent, it suggests that interdependency only exists where the relationship goes beyond the usual relationship between an adult child and a parent.

26. A close personal relationship as specified in subsection 302-200(1) of the ITAA 1997 would not normally exist between a parent and an adult child because there would not be a mutual commitment to a shared life between the two. In addition, the relationship between parents and their adult children would be expected to change significantly over time. It would be expected that the adult child would eventually move out and secure independence from their parents.

27. However, where unusual and exceptional circumstances exist, a relationship between a parent and an adult child may be treated as an interdependency relationship for the purposes of subsection 302-200(1).

28. The relationship between the Beneficiary and the Deceased was over and above a normal family relationship between a parent and an adult child.

29. The matters that indicate the Beneficiary and the Deceased had a close personal relationship before the Deceased’s death are:

● The Beneficiary provided significant care and support to the Deceased throughout their medical condition.

● The Beneficiary provided the Deceased with intensive and ongoing emotional and domestic support. This level of care exceeded the care and comfort that would usually be provided by an adult child. They had an exceptionally close relationship. Further details of their care arrangements are provided below, under Financial Support and Domestic Support and Care.

● The Beneficiary and the Deceased have lived together since the Deceased became ill. The Deceased continued to be significantly dependent on the Beneficiary for ongoing care and support, for the remainder of the Deceased’s life.

30. Therefore, a close personal relationship existed between the Beneficiary and the Deceased and the first requirement specified in paragraph 302-200(1)(a) of the ITAA 1997 has been satisfied in this case.

Living together

31. The second requirement to be met is specified in paragraph 302-200(1)(b) of the ITAA 1997 and states that two interdependent persons (whether or not related by family) live together.

32. The term ‘live’ is not defined in the ITAA 1997 or accompanying regulations. According to the Macquarie Dictionary, the term ‘live’ means to dwell or reside. The term ‘reside’ is defined as the action of dwelling in a particular place permanently or for a considerable time. In the context of paragraph 302-200(1)(b), the living arrangements must have some degree of permanency that is only disturbed by the death of one of the persons.

33. Prior to the Deceased’s death, the Beneficiary and the Deceased lived together.

34. Consequently, the requirement specified in paragraph 302-200(1)(b) of the ITAA 1997 has been satisfied in this case.

Financial support

35. The third requirement to be met is specified in paragraph 302-200(1)(c) of the ITAA 1997, which states that one or each of these two persons provides the other with financial support.

36. Financial support under paragraph 302-200(1)(c) of the ITAA 1997 is satisfied if some level of financial support (not necessarily substantial) is being provided by one person (or each of them) to the other.

37. The Deceased paid for all the Beneficiaries living expenses, including groceries and car expenses. From the facts presented, the Beneficiary did not have sufficient income from employment or other means to support themselves financially and was financially dependent on the Deceased to pay for their living costs. Therefore, the Deceased provided the Beneficiary with financial support during the final years of the Deceased’s life.

38. Consequently, paragraph 302-200(1)(c) of the ITAA 1997 has been satisfied.

Domestic support and personal care

39. The fourth requirement to be met is specified in paragraph 302-200(1)(d) of the ITAA 1997, which states that one or each of these two persons provides the other with domestic support and personal care. In discussing the meaning of domestic support and personal care, paragraph 2.16 of the SEM states:

Domestic support and personal care will commonly be of a frequent and ongoing nature. For example, domestic support services will consist of attending to the household shopping, cleaning, laundry, and like services. Personal care services may commonly consist of assistance with mobility, personal hygiene and generally ensuring the physical and emotional comfort of a person.

40. Beneficiary provided the Deceased with significant assistance, including personal grooming, mobility assistance, arranging and attending medical appointments, cooking and cleaning.

41. In addition, the Deceased provided the Beneficiary with emotional support and comfort.

42. Therefore, the requirement in paragraph 302-200(1)(d) has been satisfied.

Support and care provided in a close personal relationship

43. Subregulation 302-200.02(2) of the ITAR 1997 provides that two people will still be in an interdependency relationship if they satisfy the requirements of paragraphs 302-200(1)(a) to (c) of the ITAA 1997 and one or each of the parties provides the other with support and care of a type and quality normally provided in a close personal relationship, beyond what would normally be provided by a mere friend or flatmate.

44. From the facts presented, the Beneficiary provided the Deceased with care and support beyond what would normally be provided by a mere friend or flatmate. The Beneficiary provided ongoing and full time care to the Deceased. The Beneficiary provided significant care for the Deceased when they were unwell, for example by looking after the Deceased personal grooming and appearance. The Deceased in turn provided the Beneficiary with emotional support.

Conclusion

45. As all of the requirements in section 302-200 of the ITAA 1997 have been satisfied, the Deceased and Beneficiary were in an interdependency relationship in the period just before the Deceased’s death.

46. As the Beneficiary was in an interdependency relationship with the Deceased, the Beneficiary is a death benefits dependant as defined under section 302-195 of the ITAA 1997.