Edited version of private advice

Authorisation Number: 1052057587350

Date of advice: 21 December 2022

Ruling

Subject: Superannuation death benefit - interdependency

Question

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

No.

This private ruling applies for the following period:

12 November 20XX

30 May 20XX

The scheme commences on:

The scheme commences on 1 July 20XX

Relevant facts and circumstances

1.    The Beneficiary is the adult child of the deceased person.

2.    The Deceased died on XX XX 20XX.

3.    The Beneficiary was born on XX XX 19XX and was therefore older than 18 years when the Deceased died.

4.    You applied for a private ruling.

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

6.    You advised that in 20XX or 20XX the Deceased was diagnosed with early onset dementia.

7.    The Beneficiary lived with the Deceased in the family home until the Deceased developed early onset dementia.

8.    As the Deceased illness worsened the Deceased spent time living with and receiving respite care from her parents at a location some distance from the family home

9.    In May 20XX the Deceased remained with her parents and did not return to live at the family home.

10.  On XX June 20XX the Deceased and her spouse divorced.

11.  In 20XX the Deceased was moved to an aged care facility where she resided until her death.

12.  The Deceased's sibling obtained an order for financial management.

13.  You have explained that the Beneficiary would have been financially dependent on the Deceased leading up to the time of her death had it not of been for the Deceased's medical illness.

14.  The Beneficiary has explained at the time of the Deceased's death he was unemployed.

15.  The Deceased's estate passes on intestacy equally to the Beneficiaries.

16.  You have explained that during the time that the Deceased was still living at the family home with the Beneficiary provided the Deceased with as much physical care as they could which included cooking, cleaning and general care taking. The Beneficiary also provided a considerable degree of emotional support and care for the Deceased.

17.  After the Deceased moved away from the family home the Beneficiary continued contact with the Deceased despite their issues accessing the Deceased which included:

•         The Beneficiary was prevented from visiting the Deceased against his wishes due to a fight he had with the Deceased's mother. This meant that with the exception of one or two occasions the Beneficiary was not allowed to speak with the Deceased or see her in person.

•         The Beneficiary would call the Deceased once a week to keep in contact and during school holidays at the end of the year would visit the Deceased and provide personal and emotional care to the Deceased during her visits.

18.  No evidence was provided to prove that the Beneficiary or the Deceased were financially dependent on each other prior to the Deceased death.

19.  No evidence was provided to confirm the Deceased medical condition or time frame of when the Deceased developed early onset dementia.

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 (1997 Act) Regulations 2021 Section 302-200.01

Income Tax Assessment (1997 Act) Regulations 2021 Section 302-200.02

Reasons for decision:

Meaning of death benefits dependant

20.  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.

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

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

22.  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.

23.  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.

24.  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.

25.  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.

26.  As the Beneficiary is the adult child of the Deceased and was so at the time of the Deceased's death, paragraphs 302-195(1)(a) and (b) of the ITAA 1997 are not applicable.

27.  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(1)(d) of the ITAA 1997. However, it is generally accepted that this paragraph refers to financial dependence.

28.  The Beneficiary was not financially dependent on the Deceased person and therefore, paragraph 302-195(1)(d) of the ITAA 1997 is not applicable.

29.  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

30.  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:

a.    they have a close personal relationship; and

b.    they live together; and

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

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

31.  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:

a.    they have a close personal relationship; and

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

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

32.  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.

33.  Subsection 302-200.01(2) of the Income Tax Assessment (1997 Act) Regulations 2021 (ITAR 2021) states the matters to be taken into account. These matters are all of the circumstances of the relationship between the persons, including (where relevant):

a.    the duration of the relationship

b.    the ownership, use and acquisition of property

c.     the degree of mutual commitment to a shared life

d.    the reputation and public aspects of the relationship

e.    the degree of emotional support

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

g.    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.

34.  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.

35.  Section 302-200.02 of the ITAR 2021 sets out the circumstances in which two people have an interdependency relationship.

36.  Subsection 302-200.02(2) of the ITAR 2021 provides that an interdependency relationship exists between two people where:

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

b.    one or both 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.

37.  Subsections 302-200.02(3) and (4) of the ITAR 2021 provide that an interdependency relationship also exists between two people where:

a.    they have a close personal relationship; and

b.    they do not satisfy one or more of the other requirements set out in subsection 302-200(1) of the ITAA 1997 because:

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

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

38.  Subsection 302-200.02(5) of the ITAR 2021 states that two persons do not have an interdependency relationship if one of them provides domestic support and personal care to the other:

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

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

39.  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 section 302-200.02 of the ITAR 2021 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

40.  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.

41.  This requirement is common to all of the tests specified in section 302-200 of the ITAA 1997 and section 302-200.02 of the ITAR 2021.

42.  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.    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.

b.    Indicators of a close personal relationship may include:

i)      the duration of the relationship;

ii)     the degree of mutual commitment to a shared life;

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

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

44.  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

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

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

46.  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.

47.  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.

48.  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) of the ITAA 1997.

49.  The relationship between the Beneficiary and the Deceased was not over and above a normal family relationship between a parent and an adult child.

50.  The matters that indicate the Beneficiary and the Deceased did not have a close personal relationship before the Deceased's death are:

a.    Beneficiary did not provide significant care and support to the Deceased throughout their illness. They did not provide each other with intensive and ongoing emotional, domestic and financial support. This level of care did not exceed the care and comfort that would usually be provided by a parent to an adult child or a child to a parent.They did not have an exceptionally close relationship. Further details of their care arrangements are provided below, under Financial Support and Domestic Support and Care.

b.    The Beneficiary and the Deceased have not lived together since the Deceased became ill in 2013 or 2014. The Deceased did not continue to be significantly dependent on the Beneficiary for ongoing care and support, for the remainder of the Deceased's life. They did not have a strong mutual commitment to having a shared life.

51.  Therefore, a close personal relationship did not exist between the Beneficiary and the Deceased and the first requirement specified in paragraph 302-200(1)(a) of the ITAA 1997 has not been satisfied in this case.

Living together

52.  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.

53.  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) of the ITAA 1997, the living arrangements must have some degree of permanency that is only disturbed by the death of one of the persons.

54.  Prior to the Deceased's death, the Beneficiary and the Deceased did not live together. You have advised that the Deceased moved out of the family home when she developed early onset dementia and had it not have been for the illness the Beneficiary and the Deceased would still be living together however no evidence of these facts have been provided to confirm these claims.

55.  Consequently, the requirement specified in paragraph 302-200(1)(b) of the ITAA 1997 has not been satisfied in this case.

56.  Subsection 302-200.02(4) of the ITAR 2021 provides relief in that two persons still have an interdependency relationship if:

a.    they have a close personal relationship; and

b.    one (or both) of them has a disability.

57.  From the facts presented although information has been given to suggest the Deceased had an illness and was moved to XXXX Aged facility in 20XX, a close personal relationship between the Beneficiary and the Deceased was not identified, as detailed in paragraphs 21-32 above. As the ATO has not received evidence to confirm the Deceased's illness the ATO cannot confirm that the Deceased's serious illness prevented the Deceased and the Beneficiary from living together until the death of the Deceased.

Financial support

58.  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.

59.  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.

60.  There was no evidence presented to suggest, the Deceased did not have sufficient income to support themselves financially and was not financially dependent on the Beneficiary to pay for their any of their living expenses. There was also no evidence presented to suggest the Beneficiary was provided with financial support from the Deceased prior to her death.

61.  Therefore, the Beneficiary and the Deceased did not provide each other with financial support during the final years of the Deceased's life.

62.  Consequently, paragraph 302-200(1)(c) of the ITAA 1997 has not been satisfied.

Domestic support and personal care

63.  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:

a.    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.

64.  From the facts presented, the Beneficiary and the Deceased did not provide each other with significant assistance with domestic support and personal care in the years leading to the Deceased's death.

65.  In addition, the Beneficiary and the Deceased did not provide each other with significant emotional support and comfort.

66.  Therefore, the requirement in paragraph 302-200(1)(d) of the ITAA 1997has not been satisfied.

Conclusion

67.  As all of the requirements in section 302-200 of the ITAA 1997 have not been satisfied, the Deceased and Beneficiary were not in an interdependency relationship in the period just before the Deceased's death.

68.  As the Beneficiary was not in an interdependency relationship with the Deceased, the Beneficiary is not a death benefits dependant as defined under section 302-195 of the ITAA 1997.