Private ruling: Undeducted Purchase Price (UPP) of your foreign pension
Published: June 2013

Ruling: Q1: Are you entitled to a deductible amount in respect of the undeducted purchase price (UPP) of your foreign pension? Ruling Yes, your annual deductible amount and your part year deductible amount have been calculated in accordance with subsection 27H(2) of the Income Tax Assessment Act 1936 (ITAA 1936). This ruling is binding on the Commissioner for the period outlined in the ruling. You may rely on this ruling for future years where the facts, as stated in the ruling do not change, but the Commissioner will not be bound to the ruling. This means that if your circumstances or the facts relied upon to make the ruling do change, you will be protected from penalties and interest, but liable for any shortfall tax that may apply. This ruling applies for the following period 2006-07 financial year 2007-08 financial year 2008-09 financial year 2009-10 financial year 2010-11 financial year 2011-12 financial year 2012-13 financial year The scheme commenced on On or after 1 July 1983



Reasons for decision: Detailed Reasoning - Explanation: Please note that all references to 'pension' cover both pensions and annuities | Summary: Your annual deductible amount and your part year deductible amount have been calculated in accordance with subsection 27H(2) of the Income Tax Assessment Act 1936 (ITAA 1936). | Detailed Reasoning - The original pension: Apportioning contributions where both a lump sum and pension is paid Subsection 27A(1) of the ITAA 1936 contains the definition of purchase price in relation to a superannuation pension. Subparagraph (a)(ii) of that subsection states that 'purchase price' means the total amount of contributions to a superannuation fund made to obtain superannuation benefits consisting of a pension and other benefits such as a lump sum. Where a person is entitled to both a pension and a lump sum payment, it must be determined whether the personal contributions made to the fund are 'undeducted contributions' relating to the lump sum payment, or form part of the 'purchase price' relating to the superannuation pension. Taxation Ruling IT 2272 Income tax: Eligible termination payments and superannuation pensions - determination of undeducted contributions and undeducted purchase price states that where there is no apparent basis for allocating the contributions, the apportioning of the contributions made to obtain both a pension and lump sum is to be calculated on a pro-rata basis as follows: Purchase of Pension = B where: A = is the amount of the lump sum benefit received, and B = is the net present value of the pension entitlement at the time when the lump sum benefit is received. The present value of the pension is calculated based on the amount of the pension entitlement during the first 12 months after commencement of the pension. The present value is determined in accordance with Taxation Ruling IT 2620 Income tax: Assessment of eligible termination payments - determination of forgone benefit part of approved early retirement scheme payments and bona fide redundancy payments made to members of pension funds and is based on Schedule 1B of the Superannuation Industry (Supervision) Regulations 1994 , under the following formula: Present Value = AVx PVF AV = Annual Value of Pension (ie the amount of pension payable during the first 12 months) PVF = Pension Valuation Factor which is based on the indexation rate of your pension and your age at the commencement of the pension and whether the pension is reversionary or not and the level of reversion. The proportion of the total personal contributions attributable to the original pension is determined as follows: Based on the information provided, the present value of your spouse's pension is calculated. Your spouse received both a lump sum payment and a pension from the fund on retirement. Your spouse paid personal contributions into the fund to obtain the total retirement benefits. Therefore, some of the personal contributions would have been allocated to the lump sum benefit and some would have formed part of the purchase price of your spouse's pension. It is necessary to determine what proportion of the total personal contributions, have been made to obtain your spouse's pension. As there is no immediately apparent basis for allocating the personal contributions made to obtain both the pension and lump sum benefit, the proportion of the total personal contributions attributable to the pension from the fund has been determined. This percentage is applied to your spouse's total contributions paid to determine the purchase price of the original pension benefit. Therefore, the amount of personal contributions determined as being made by your spouse to obtain the original pension from the fund has been calculated. How the annual deductible amount is calculated Section 27H of the ITAA 1936 operates to include in assessable income the amount of any pension derived by a taxpayer during a year of income reduced by the deductible amount. The deductible amount is deemed to be a return of part of your contribution towards the purchase of the pension. The calculation of the deductible amount is based on the 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, 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 as calculated under IT 2272 C = is the residual capital value, and D = is the relevant number in relation to the pension. 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 ITAA 1936. 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: · the date when the pension first became payable, · your age when the pension commenced, and · your spouse's age when the pension commenced. In Taxation Determination TD 2006/72 Income tax: does the relevant number determined for the purposes of working out the deductible amount of a superannuation pension or annuity under subsection 27H(2) of the Income Tax Assessment Act 1936 take into account the life expectancy of a reversionary pensioner or annuitant? the Commissioner states, in paragraph 1, that the relevant number used to calculate the deductible amount of a superannuation pension that is payable to a person (the original pensioner) for life and on the death of that person is payable to another person for their life (the reversionary pensioner) will be the greater of the life expectancies of the original and reversionary pensioners. By substituting the information you provided regarding the original pension into the formula, the annual deductible amount is obtained. Accordingly, the deductible amount for the term of the original pension has been determined. This is the proportion of the personal contributions that we have determined to be allocated and used during the term of the original pension. Therefore, the remaining amount of personal contributions towards the reverted pension and lump sum payment has been calculated. | Detailed Reasoning - The reverted pension: Apportioning contributions where both a lump sum and pension is paid As discussed earlier, IT 2272 is applied to calculate the apportioning of the contributions made to obtain both a pension and lump sum on a pro-rata basis. The proportion of the personal contributions attributable to the reverted pension is determined as follows: Based on the information provided, the present value of your reverted pension is calculated. You were entitled to both a lump sum payment and a pension from the fund. The personal contributions were allocated towards the total reverted benefits. Therefore, some of these personal contributions would have been allocated to the lump sum benefit and some would have formed part of the purchase price of your reverted pension. It is necessary to determine what proportion of the total personal contributions, have been made to obtain your reverted pension. As there is no immediately apparent basis for allocating the personal contributions made to obtain both the pension and lump sum benefit, the proportion of the total personal contributions attributable to the reverted pension from the fund has been determined. This percentage is applied to the remaining personal contributions to determine the purchase price of the reverted pension benefit. Therefore, the amount of personal contributions determined as being made to obtain the reverted pension from the fund has been calculated. How the annual deductible amount is calculated As discussed earlier, subsection 27H(2) of the ITAA 1936 explains the formula to calculate the annual deductible amount of a superannuation pension. 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 ITAA 1936. 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. The Australian Life Tables published by the Australian Government Actuary are to be used. The factors for determining the life expectancy are: the date when the pension first became payable, and your age when the pension commenced. By substituting the information you provided regarding the reverted pension into the formula, the annual deductible amount is obtained. How the part year deductible amount is calculated As you became an Australian resident during the financial year, you are not entitled to claim the full deductible amount of the UPP for that year. The deductible amount therefore needs to be apportioned according to the number of days that you were an Australian resident during the financial year. Therefore your deductible amount will be apportioned for the financial year for the period that you were a resident. Converting foreign currency to Australian currency For the 2003-04 and subsequent financial 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 Income tax: how does a taxpayer work out the amount to be included in assessable income under section 27H of the Income Tax Assessment Act 1936 for a superannuation pension or annuity that is payable in a foreign currency? , pensions received in foreign currency should be translated to Australian currency on the following basis: 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 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. Alternatively, regulation 960-50.01 of the Income Tax Assessment Regulations 1997 (ITAR 1997) and Schedule 2 to the ITAR 1997 allow pensions received in foreign currency and the deductible amount to be translated to Australian currency at the average exchange rate for the financial year. This is provided the conditions outlined in Schedule 2 to the ITAR 1997 are satisfied. Where the pension is received as a series of payments over the course of the financial year, and provided the average exchange rate is considered a reasonable approximation of the exchange rates, the conditions outlined in Schedule 2 to the ITAR 1997 will be satisfied. In your case, as your pension is paid monthly, you may use the average exchange rate to translate your pension income and the deductible amount of your UPP. The average exchange rates are available from our superannuation information line on 13 10 20 or visit our website at ato.gov.au/super. Other relevant comments Please note that from 1 July 2007, the legislation changed in relation to superannuation pensions and benefits paid from complying superannuation funds. However, these changes do not affect any pensions paid from overseas funds which are not considered complying superannuation funds under section 42 of the Superannuation Industry (Supervision) Act 1993 as they are not resident funds. You will need to include your total foreign pension income in your income tax return and claim your annual deductible amount as advised by your private ruling above. Important information to note Income tax returns may be amended within two years from the date upon which the Commissioner gives notice of the assessment to the individual (for assessments for the 2004-05 and later financial years). If you choose to rely on this private ruling, when lodging your income tax return for the 2012-13 financial year, please include the annual deductible amount of the UPP as advised by your private ruling. Please note that the deductible amount should only be included if you have declared your pension income. In regards to assessments that fall outside the two/four year period, you will need to lodge an objection request and a request for an extension of time to lodge an objection form. Please complete the approved objection form (NAT 13471 for taxpayers and NAT 13044 for tax professionals) which can be found on our website at ato.gov.au and forward to the reply address provided on the Notice of private ruling.

Relevant facts: You receive a pension from a retirement fund established and managed outside Australia. | The international tax agreement between Australia and 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. | The pension became payable on or after 1 July 1983. | The pension is payable for life, and became payable to you on the death of your spouse. | All the pension is payable to you. | At the commencement of the original pension, your spouse received a lump sum. | At the commencement of the reverted pension, you also received a lump sum. | The amount of personal contributions, other than employer contributions, has been determined by the Commissioner as being paid to the retirement fund towards the reverted retirement benefits (pension and lump sum). | The residual capital value of the pension is nil. | Your pension is paid on a monthly basis. | Your pension is indexed in accordance with cost of living increases. | Assumptions: This ruling is given on the basis of the facts stated in the description of the scheme as set out above. Any material variation from these facts (including any matters not stated in the description above and any departure from these facts) will mean that the ruling will have no effect. Examples of such variations include but are not limited to commutation, divorce and re-marriage. No entity will then be able to rely on this ruling as the Commissioner will consider that the scheme has been implemented in a way that is materially different from the scheme described. | Relevant legislative and regulatory provisions: Income Tax Assessment Act 1936 Subsection 27A(1) | 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 960-50.01