Private ruling: Superannuation death benefit - interdependency
Date of advice: 25 August 2022
Published: November 2022
Ruling period: Income year ending 30 June 2021
Date scheme commenced: 1 July 2019

Ruling: Q1: Were the Beneficiaries death benefit dependants of the Deceased 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? | A1: Yes | Q2: Is the superannuation lump sum death benefit received by the Beneficiaries during the 2020-21 income year 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 died in the income year ending 30 June 2020. The Beneficiaries received a superannuation lump sum death benefit payment from the Deceased's superannuation fund. In 2019 the Deceased commenced living with the Beneficiaries. The Deceased required emotional and physical security. The Beneficiaries were not financially dependent on the Deceased. The Beneficiaries cared for the Deceased by providing: • financial support, including paying for her rent, bills, food, clothing, medical expenses, mortgage, loan repayments, motor vehicle expenses, public transport fares, utilities and some business expenses • domestic support, including attending to household cleaning, preparing meals, washing their clothes, care of the Deceased's minor children • emotional support, including consoling them when they were distressed • physical security. The Deceased moved into the Beneficiaries home and it was intended to be permanent arrangement for the foreseeable future.

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: 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 were 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 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(3) of the ITAA 1997 provides the matters and circumstances which are to be considered in determining whether an interdependency relationship exists between two persons under that section may be specified in the regulations. Subregulation 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: 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 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. Regulation 302-200.02 of the ITAR 2021 sets out the circumstances in which two people have an interdependency relationship. Subregulation 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. Subregulation 302-200.02(3) and (4) of the ITAR 2021 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. 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 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. | 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 Beneficiaries 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 life, regardless of whether they were living together or separately. The Beneficiaries provided the Deceased with intensive and ongoing emotional, domestic and financial support. This level of care exceeded the care and comfort that would usually be provided by a parent to an adult child. They had an exceptionally close relationship. • The Beneficiaries and the Deceased lived together prior to the Deceased's death. The Deceased was significantly dependent on the Beneficiaries for ongoing care, emotional support and physical security. The Deceased intended to live with the Beneficiaries on a long term permanent basis. They would have continued to live together if the Deceased were still alive. 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 in this case. | 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 Beneficiaries and the Deceased 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 Deceased did not have sufficient income from employment to support themselves financially and was financially dependent on the Beneficiaries to pay for their rent, bills, food, clothing, medical expenses, mortgage, utilities, loan repayments, motor vehicle expenses, public transport fares and provide them with accommodation, meals and cash for living expenses. Therefore, the Beneficiaries provided the Deceased with financial support during the final months of the Deceased's life. 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 domestic support, attending to household cleaning, preparing meals, washing their clothes, care of the Deceased's minor children. 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 - Support and care provided in a close personal relationship: Subregulation 302-200.02(2) of the ITAR 2021 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. From the facts presented, the Beneficiaries provided the Deceased with care and support beyond what would normally be provided by a mere friend or flatmate. The Beneficiaries provided financial support, physical security and significant care for the Deceased when they were suffering emotionally. | Detailed Reasoning - Conclusion: As all of the requirements in section 302-200 of the ITAA 1997 and Subregulation 302-200.02(2) of the ITAR 1997 have been satisfied, the Deceased and Beneficiaries 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 a death benefits dependant as defined under section 302-195 of the ITAA 1997.