Private ruling: Superannuation death benefit - interdependency
Date of advice: 22 December 2021
Published: March 2022
Ruling period: Income year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Are the Beneficiaries death benefits dependants of the Deceased pursuant 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? | A1: Yes. | Q2: Is the superannuation lump sum death benefits received by the executors for the Beneficiaries excluded from assessable income under section 302-60 of the ITAA 1997? | A2: Yes.

Relevant facts and circumstances: The Beneficiaries are the parents of the Deceased. The Deceased was seriously ill since the beginning of 20XX. The Deceased was diagnosed with terminal illness which they succumbed to. The Deceased did not have a spouse, children or any family member. The Deceased lived in her own house till moving overseas in 20XX to live with the Beneficiaries. The Deceased lived with the Beneficiaries for XX years till her death. The Deceased did not intend to move back to Australia. There was a close relationship between the Deceased and the Beneficiaries but became closer when the Deceased moved permanently overseas to live with the Beneficiaries. The Beneficiaries cared for the Deceased from the beginning of 20XX until her passing in late 20XX by providing her with: • financial support, including paying for groceries, utilities, transport, chemotherapy and medication • domestic support, including attending to preparing meals, household cleaning and laundry • personal care and assistance, including toileting, showering and personal hygiene, administering medication, body massages and walking and transporting to and from a wheelchair and vehicle • emotional support when experiencing hallucinations, nightmares and pain.

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 (ITAR 2021) 302-200.01 | Income Tax Assessment (1997 Act) Regulations 2021 (ITAR 2021) 302-200.02

Reasons for decision: Summary: An interdependency relationship as defined under section 302-200 of the ITAA 1997 existed between the Deceased and the Beneficiaries as all requirements have been satisfied. The Beneficiaries are death benefits dependants of the Deceased as defined in section 302-195 of the ITAA 1997. Consequently, the taxable component of the superannuation lump sum death benefit paid to the Beneficiaries is not assessable income nor exempt income under section 302-60 of the ITAA 1997. | Detailed Reasoning - Meaning of death benefits dependant: 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. 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. 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. 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. 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. 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. As the Beneficiaries are the parents of the Deceased, paragraphs 302-195(1)(a) and (b) are not applicable. 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. The Beneficiaries were not financially dependent on the Deceased person and therefore, paragraph 302-195(d) is not applicable. To meet the definition of a death benefits dependant, the Beneficiaries must have been in an interdependency relationship with the Deceased, in accordance with paragraph 302-195(1)(c) of the ITAA 1997. | Detailed Reasoning - Interdependency relationship: 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. 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. 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. Sub-regulation 302-200.01(2) of the Income Tax Assessment (1997 Act) Regulations 2021 (ITAR 2021) states the matters to be taken into account as follows: • the duration of the relationship • the ownership, use and acquisition of property • the degree of mutual commitment to a shared life • the care and support of children • 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. Sub-regulation 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 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. All of the conditions in subsection 302-200(1) of the ITAA 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. | Detailed Reasoning - Close personal relationship: 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. 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 2021. 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. 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. 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. 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. 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). The relationship between the Beneficiary and the Deceased was over and above a normal family relationship between a parent and an adult child. The matters that indicate the Beneficiaries and the Deceased had a close personal relationship before the Deceased's death are: • The Beneficiaries provided significant care and support to the Deceased throughout their illness while they were living together. The Beneficiaries provided the Deceased with intensive and ongoing domestic and emotional support. This level of care exceeded the care and comfort that would usually be provided by a parent to a child. They had an exceptionally close relationship. Further details of their care arrangements are provided below, under Financial Support and Domestic Support and Care. Therefore, a close personal relationship existed between the Beneficiaries and the Deceased and the first requirement specified in paragraph 302-200(1)(a) of the ITAA 1997 has been satisfied. | Detailed Reasoning - Living together: 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. 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. Prior to the Deceased's death, the Beneficiary and the Deceased permanently lived together. Consequently, the requirement specified in paragraph 302-200(1)(b) of the ITAA 1997 has been satisfied in this case. | Detailed Reasoning - Financial support: 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. 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. From the facts presented the Beneficiaries provided the Deceased with financial support since she permanently moved to live with them. The Beneficiaries pay for the Deceased's groceries, medical expenses and utilities. They also provided her with accommodation, meals and cash for living expenses. Consequently, paragraph 302-200(1)(c) of the ITAA 1997 has been satisfied. | Detailed Reasoning - Domestic support and personal care: 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. From the facts presented, the Beneficiaries provided the Deceased with significant assistance including taking her to medical appointments, providing toileting, showering and personal hygiene, administering medication and body massages, preparing meals and doing laundry. In addition, the Beneficiaries provided the Deceased with significant emotional support and comfort. Therefore, the requirement in paragraph 302-200(1)(d) has been satisfied. | Detailed Reasoning - Conclusion: 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. As the Beneficiaries were in an interdependency relationship with the Deceased, the Beneficiaries are death benefits dependants as defined under section 302-195 of the ITAA 1997. 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.