Private ruling: Deductible amount of undeducted purchase price
Published: June 2012
Ruling period: 2011-12 income year

Ruling: Q1: Are you entitled to an annual deductible amount in respect of the undeducted purchase price (UPP) of your first foreign pension? | A1: Yes, you are entitled to an annual deductible amount. | Q2: Are you entitled to an annual deductible amount in respect of the UPP of your second foreign pension? | A2: Yes, you are entitled to an annual deductible amount.

Relevant facts and circumstances: You are a resident of Australia for income tax purposes. You receive two pensions from a retirement fund established and managed outside Australia. The international tax agreement between Australia and the country in which the retirement fund is established and managed provides that the pensions are taxable in Australia. Your assessable income includes your pension income. All the pensions are payable to you. 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). You have provided documentary evidence from the funds of your personal contributions towards both pensions. You receive your pensions on a monthly basis.

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: Please note that all references to 'pension' cover both pensions and annuities. 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. 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. The factors for determining the life expectancy are: · the date the pension first became payable; · your age when the pension commenced; · your spouse's age when the pension commenced. The deductible amount of the undeducted purchase price of your foreign pensions 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 pensions are paid on a regular monthly basis, you are entitled to use the average exchange rate to translate your pension income and the annual deductible amount of your UPP. The average exchange rates are available from our information line on 13 10 20 or visit our website at www.ato.gov.au/super .

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