Private ruling: Deductible amount of undeducted purchase price
Published: July 2011
Ruling period: 1999-2000 income year | All subsequent years where the facts, as stated in the ruling, do not change
Date scheme commenced: On or after 1 July 1983

Ruling: Q1: Are you entitled to an annual deductible amount of the UPP in respect of your overseas pension? Yes, your annual deductible amount for the 1999-2000 income year has been calculated in accordance with subsection 27H(3) of the Income Tax Assessment Act 1936 (ITAA 36).

Relevant facts and circumstances: You receive a pension from a retirement fund established and managed outside Australia. There is no Taxation Ruling or Taxation Determination published which provides for an alternative calculation or Commissioner's discretion under section 27H(3) of the Income Tax Assessment Act 1936 (ITAA 1936). The international tax agreement between Australia and the country in which the retirement fund is established and managed provides that the pension is taxable in Australia. Your assessable income includes your pension income. Your pension is paid by a superannuation fund. All the pension is payable to you. The pension became payable on or after 1 July 1983. The pension is payable for life, and reverted to you on the death of your spouse. You have provided documentary evidence of the personal contributions paid into the fund. The residual capital value of the pension is nil. Your pension is paid bi-monthly.

Relevant legislative provisions: Income Tax Assessment Act 1936 Section 20. | Income Tax Assessment Act 1936 Section 27H. | Income Tax Assessment Act 1936 Subsection 27H(2). | Income Tax Assessment Act 1936 Subsection 27H(3). | Income Tax Assessment Act 1936 Subsection 27H(4). | Income Tax Assessment Act 1997 Section 960-50. | Income Tax Regulations 1936 Regulation 9. | Income Tax Assessment Regulations 1997 Regulation 960-50.

Reasons for decision: Summary: Section 27H of the Income Tax Assessment Act 1936 (ITAA 1936) operates to include in assessable income the amount of any pension or annuity (pension) derived by a taxpayer during a year of income reduced by the annual deductible amount. The deductible amount is deemed to be a return of part of your contribution towards the purchase of the pension. The deductible amount is calculated based on the undeducted purchase price (UPP) of your pension. The UPP is the amount you contributed towards the purchase price of your pension for which you did not claim, and were not eligible to claim, a tax deduction in Australia. Contributions made by an employer or by another person under an agreement to which the employer was a party, cannot form part of the UPP of the pension. Under subsection 27H(2) of the ITAA 1936 and subject to subsection 27H(3) or (3A) of the ITAA 1936, the annual deductible amount of a superannuation pension is ascertained in accordance with the formula: A (B - C) D where: A = is the relevant share of the pension payable to the taxpayer in relation to the year of income (if all of the pension is payable to the taxpayer, A = 1) B = is the amount of the UPP of the pension C = is the residual capital value, and D = is the relevant number in relation to the pension. Under subsection 27H(4) of the ITAA 1936, when a pension is payable during the lifetime of a person, the 'life expectation factor' is to be used as the relevant number. Regulation 9 of the Income Tax Regulations 1936 states that for the purposes of the definition of life expectation factor in subsection 27H(4) of the ITAA 1936, the Australian Life Tables published by the Australian Government Actuary are to be used. The factors for determining the life expectancy are: 1. the date the pension first became payable; 2. your age when the pension commenced; The annual deductible amount of the UPP has been calculated in accordance with the above formula. For the 2003-04 and subsequent income years, subsection 960-50(1) of the Income Tax Assessment Act 1997 (ITAA 1997) requires an amount in a foreign currency to be translated into Australian currency. Subsection 960-50(4) of the ITAA 1997 further requires any foreign currency elements in a calculation to be translated before the final amount is worked out. In accordance with the currency translation rules contained in section 960-50 of the ITAA 1997 and clarified in Taxation Determination TD 2006/54, pension or annuities received in foreign currency should be translated to Australian currency on the following basis: (a) if the amount is received at or before the time when it is derived - the amount is to be translated to Australian currency at the exchange rate applicable at the time of receipt; or (b) in any other case - the amount is to be translated to Australian currency at the exchange rate applicable when it is derived. As a general rule, the deductible amount is translated to Australian currency using the same exchange rate applying to the pension or annuity. Alternatively, regulation 960-50 of the Income Tax Assessment Regulations 1997 (ITR 1997) and Schedule 2 to the ITR 1997allow pensions and annuities received in foreign currency and the deductible amount to be translated to Australian currency at the average exchange rate for the income year. This is provided the conditions outlined in Schedule 2 to the ITR are satisfied. Where the pension or annuity is received as a series of payments over the course of the income year, and provided the average exchange rate is considered a reasonable approximation of the exchange rates, the conditions outlined in Schedule 2 to the ITR 1997 will be satisfied. In your case, as your pension is paid on a regular bi-monthly basis, you are entitled to use the average exchange rate to translate your pension income and the annual deductible amount of your UPP. For the 2002-03 and prior income years, section 20 of the ITAA 1936 requires all income and expenses to be expressed in Australian currency for the purposes of the Act. In accordance with the currency translation rules contained in section 20 of the ITAA 1936 and clarified in Taxation Ruling IT 2498 Income tax: foreign tax credit system: currency translation of foreign income: trading stock and depreciating plant: basis of returning income: capital gains/losses , pensions received in foreign currency should be translated to Australian currency on the following basis: (a) where pensions are remitted to Australia - at the exchange rate applicable when each instalment of pension is received, or (b) where pensions are not remitted to Australia - at the exchange rate applicable at the end of the year of income. However, in recognition of the difficulties that a strict application of the law may cause some pensioners, translation of remitted pensions on the basis of the average annual exchange rate for the relevant year of income will be accepted. Similarly, where the average annual exchange rate is used to translate the foreign pension amount received in an income year, the deductible amount may also be translated to Australian dollars at the average annual exchange rate for the income year. The average exchange rates are available from our lnformation line on 13 10 20 or visit our website at www.ato.gov.au/super.

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