Private ruling: Lump sum payments from foreign superannuation funds
Published: April 2014
Ruling period: Year ending 30 June 2014
Date scheme commenced: 1 July 2013

Ruling: Q1: 1. Will any part of the benefit transferred from your client's foreign pension fund to an Australian superannuation fund be assessable as applicable fund earnings under section 305-75 of the Income Tax Assessment Act 1997 (ITAA 1997) for the 2013-14 income year? 2. Will any part of the benefit transferred from your client's foreign pension fund to an Australian superannuation fund be assessable as applicable fund earnings under section 305-75 of the Income Tax Assessment Act 1997 (ITAA 1997) for the 2013-14 income year? | A1: 1. Yes. 2. Yes.

Relevant facts and circumstances: Your client migrated to Australia permanently during the 2010-11 income year. Your client held an interest in two foreign pension funds, these being, Pension Fund 1 and Pension Fund 2. You advised that the value of Pension Fund 1 on the day before your client became an Australian resident was A. Your client received a lump sum payment of B from Pension Fund 1 during the 2013-14 income year. You have stated the value of Pension Fund 2 on the day before your client became an Australian resident was X. Your client received a lump sum payment of Y from Pension Fund 2 during the 2013-14 income year. Your client transferred the pension funds in full to Australia. The foreign pension funds were then closed. There have been no contributions to either pension funds since your client migrated to Australia. There have been no transfers into either pension fund from other foreign pension schemes by your client since becoming a resident of Australia. Funds cannot be accessed from either pension fund other than at retirement. Your client paid the lump sum payments from the pension funds into a complying Australian superannuation fund.

Relevant legislative provisions: Income Tax Assessment Act 1997 Subsection 295-95(2) | Income Tax Assessment Act 1997 Section 305-70 | Income Tax Assessment Act 1997 Subsection 305-70(1) | Income Tax Assessment Act 1997 Section 305-75 | Income Tax Assessment Act 1997 Subsection 305-75(2) | Income Tax Assessment Act 1997 Subsection 305-75 (3) | Income Tax Assessment Act 1997 Subsection 305-75 (5) | Income Tax Assessment Act 1997 Subsection 305-75 (6) | Income Tax Assessment Act 1997 Subsection 306-70 | Income Tax Assessment Act 1997 Subsection 960-50(1) | Income Tax Assessment Act 1997 Subsection 960-50(4) | Income Tax Assessment Act 1997 Subsection 995-1(1) | Superannuation Industry (Supervision) Act 1993 Section 10 | Superannuation Industry (Supervision) Act 1993 Section 19 | Superannuation Industry (Supervision) Act 1993 Section 62

Reasons for decision: Summary: The 'applicable fund earnings' in respect of the lump sum payments made from Pension Fund 1 and 2 are C and Z respectively. The remaining portion is non-assessable, non-exempt income. | Detailed Reasoning - Lump sum payments transferred from foreign superannuation funds: The applicable fund earnings in relation to a lump sum payment from a foreign superannuation fund , that is received more than six months after a person has become an Australian resident, will be assessable under section 305-70 of the Income Tax Assessment Act 1997 (ITAA 1997). The applicable fund earnings is subject to tax at the person's marginal rate. The remainder of the lump sum payment is not assessable income and is not exempt income. The applicable fund earnings is the amount worked out under either subsection 305-75(2) or (3) of the ITAA 1997. Subsection 305-75(2) applies where the person was an Australian resident at all times during the period to which the lump sum relates. Subsection 305-75(3) applies where the person was not an Australian resident at all times during the period to which the lump sum relates. Before determining whether an amount is assessable under section 305-70 of the ITAA 1997, it is necessary to ascertain whether the payment is being made from a foreign superannuation fund. If the entity making the payment is not a foreign superannuation fund then section 305-70 will not have any application. | Detailed Reasoning - Foreign superannuation fund: A foreign superannuation fund is defined in subsection 995-1(1) of the ITAA 1997 as follows: (a) a superannuation fund is a foreign superannuation fund at a time if the fund is not an Australian superannuation fund at that time; and (b) a superannuation fund is a foreign superannuation fund for an income year if the fund is not an Australian superannuation fund for the income year. Under the definition of Australian superannuation fund in subsection 295-95(2) of the ITAA 1997 a superannuation fund that is established outside of Australia and has its central management and control outside of Australia would qualify as a foreign superannuation fund . The fact that some of its members may be Australian residents would not necessarily alter this. Subsection 995-1(1) of the ITAA 1997 defines a superannuation fund as having the same meaning given by section 10 of the Superannuation Industry (Supervision) Act 1993 (SIS Act), which requires that the fund is a provident, benefit, superannuation or retirement fund. | Detailed Reasoning - Provident, benefit, superannuation or retirement fund: The issue of what constitutes a provident, benefit, superannuation or retirement fund was discussed by the Full Bench of the High Court in Mahony v. Federal Commissioner of Taxation (1967) 41 ALJR 232; (1967) 14 ATD 519 ( Mahony ). In that case, Justice Kitto's judgement indicated that a fund does not satisfy any of the three provisions, that is, 'provident, benefit or superannuation fund', if there exist provisions for the payment of benefits 'for any other reason whatsoever'. In other words, though a fund may contain provisions for retirement purposes, it could not be accepted as a superannuation fund if it contained provisions that benefits could be paid in circumstances other than those relating to retirement. In section 62 of the SIS Act, a regulated superannuation fund must be 'maintained solely' for the 'core purposes' of providing benefits to a member when the events occur: • on or after retirement from gainful employment; or • attaining a prescribed age; and • on the member's death (this may require the benefits being passed on to a member's dependants or legal representative). Notwithstanding the SIS Act applies only to 'regulated superannuation funds' (as defined in section 19 of the SIS Act), and foreign superannuation funds do not qualify as regulated superannuation funds as they are established and operate outside Australia, the Commissioner views the SIS Act (and the SIS Regulations) as providing guidance as to what 'benefit' or 'specific future purpose' a superannuation fund should provide. Based on the rules of both foreign funds, benefits are only paid on retirement and therefore the fund would meet the abovementioned requirements. In addition, it is evident the payers of the lump sum payments are established outside of Australia with their central management and control outside of Australia. Therefore, on the basis of the information provided, the Commissioner considers the lump sum payments you received to be made from foreign superannuation funds as defined in subsection 995-1(1) of the ITAA 1997. | Detailed Reasoning - Applicable fund earnings: As your client received the lump sum payments more than six months after they became an Australian resident, section 305-70 applies to include the 'applicable fund earnings' as assessable income. The 'applicable fund earnings' are worked out under section 305-75. As mentioned earlier, subsection 305-75(3) applies where the person becomes an Australian resident after the start of the period to which the lump sum relates. Subsection 305-75(3) of the ITAA 1997 states: If you become an Australian resident after the start of the period to which the lump sum relates, the amount of your applicable fund earnings is the amount (not less than zero) worked out as follows: (a) work out the total of the following amounts: a. The amount in the fund that was vested in you just before the day (the start day ) you first became an Australian resident during the period; b. the part of the payment that is attributable to contributions to the fund made by or in respect of you during the remainder of the period; c. the part of the payment (if any) that is attributable to amounts transferred into the fund from any other *foreign superannuation fund during the period; (b) subtract that total amount from the amount in the fund that was vested in you when the lump sum was paid (before any deduction for foreign tax); (c) multiply the resulting amount by the proportion of the total days during the period when you were an Australian resident; (d) add the total of all previously exempt fund earnings (if any) covered by subsections (5) and (6). In short, your client is assessed only on the income earned (the accretion) in respect of Pension Fund 1 and Pension Fund 2 less any contributions your client made since they became a resident of Australia. Further, any amounts representative of earnings during periods of non-residency, and transfers into the paying fund do not form part of the taxable amount when the overseas benefit is paid. Foreign currency conversion Subsection 960-50(1) of the ITAA 1997 states that an amount in a foreign currency is to be translated into Australian dollars (AU$). The applicable fund earnings is the result of a calculation from two other amounts and subsection 960-50(4) states that when applying section 960-50 to amounts that are elements in the calculation of another amount you need to: (a) first, translate any amounts that are elements in the calculation of other amounts (except special accrual amounts); and (b) then, calculate the other amounts. The table in subsection 960-50(6) of the ITAA 1997 sets out the translation rules. Only the following items are relevant to determining the issue in your case: • item 11 which deals with a receipt or payment to which none of the other items apply, and • item 11A which applies to amounts that are neither receipts nor payments and to which none of the other items apply. Item 11 of the table in subsection 960-50(6) of the ITAA 1997 applies to a receipt or payment where none of the other items applies. The payment your client finally received is not included in any of the other items in the table so it will fall within item 11. Under this item, the payment is translated into Australian dollars at the exchange rate applicable at the time of receipt. When the amount in the foreign fund that was vested in your client just before they became a resident of Australia (subparagraph 305-75(3)(a)(i) of the ITAA 1997) is determined, there is no actual receipt or payment of an amount. All that occurs is a determination of the vested amount expressed in the foreign currency. Regulation 960-50.01 of the Income Tax Assessment Regulations 1997 (ITAR) modifies the table in subsection 960-50(6) of the ITAA 1997 to include item 11A that applies to amounts other than receipts and payments, and for which none of the other items apply. Consequently the vested amount is translated into Australian dollars at an exchange rate that is reasonable having regard to the circumstances. Therefore, for the purposes of section 305-70 of the ITAA 1997, the 'applicable fund earnings' should be calculated by translating the amount received from the foreign fund at the exchange rate applicable on the day of receipt to Australian dollars and deducting from this amount the Australian dollar equivalent of the amount vested in the fund at the exchange rate applicable just before the day your client first became an Australian resident. | Detailed Reasoning - Amounts to be used in calculation: The value of the benefit in Pension Fund 1 on the day before your client became a resident of Australia was A. This is converted into Australian dollars at the exchange rate that applied on that day which converts the amount of A to A (cents ignored). The value of the benefit in Pension Fund 2 on the day before your client became a resident of Australia was B. This too is converted into Australian dollars at the exchange rate that applied on that day which converts the amount of X to X (cents ignored). From the facts provided no contributions have been made to either pension funds since your client migrated to Australia. There have been no transfers into the pension funds from other foreign pension schemes by your client since becoming a resident of Australia. During the 2013-14 income year, your client's benefits in Pension Fund 1 were paid out to your client in the form of a one-off lump sum of B which was transferred directly into a complying Australian superannuation fund. This is converted into Australian dollars at the exchange rate that applied on that day which converts the amount of B to B (cents ignored). During the 2013-14 income year, your client's benefits in Pension Fund 2 were paid out to your client in the form of a one-off lump sum of Y which was also transferred directly into a complying Australian superannuation fund This is converted into Australian dollars at the exchange rate that applied on that day which converts the amount of Y to Y (cents ignored). 'The period' for the purposes of paragraph 305-75(3)(c) of the ITAA 1997 commences on the day on which the person first became an Australian resident and ceases on the day the lump sum is paid. As your client was a resident for the whole of both the relevant periods, the Australian resident days and the total days are the same, and so the proportion to be used in the calculation is 1. There are no previously exempt fund earnings in relation to the lump sum. | Detailed Reasoning - Pension Fund 1: Applying subsection 305-75(3) of the ITAA 1997 to your client's circumstances, the amounts to be used in calculating the applicable fund earnings for Pension Fund 1 are as follows: 305-75(3)(a)(i) A 305-75(3)(a)(ii) Nil 305-75(3)(a)(iii) Nil 305-75(3)(b) B 305-75(3)(c) 1 305-75(3)(d) Nil | Detailed Reasoning - Calculation of the assessable amount of the payment from Pension Fund 1: In accordance with 305-75 (3) of the ITAA 1997 the amounts determined at sub-paragraphs 305-75(3)(a)(i), (ii) and (iii) are added. A + nil + nil = A. This total is then subtracted from the amount determined under paragraph 305-75(3)(b), B. B - A = C. This figure is multiplied by the proportion of the total days determined under paragraph 305-75(3)(c) - '1' C x 1 = C. To this figure we add the amounts determined under paragraph 305-75(3)(d) - nil C + nil = C. The applicable fund earnings of C will be subject to tax at either your client's marginal tax rate or at 15% if they have made an election to have the Australian superannuation fund treat the transferred amount as assessable income of the fund. See election eligibility below. | Detailed Reasoning - Pension Fund 2: The amounts to be used in calculating the applicable fund earnings for Pension Fund 2 are as follows: 305-75(3)(a)(i) X 305-75(3)(a)(ii) Nil 305-75(3)(a)(iii) Nil 305-75(3)(b) Y 305-75(3)(c) 1 305-75(3)(d) Nil | Detailed Reasoning - Calculation of the assessable amount of the payment from Pension Fund 2: In accordance with 305-75 (3) of the ITAA 1997 the amounts determined at sub-paragraphs 305-75(3)(a)(i), (ii) and (iii) are added. X + nil + nil = X. This total is then subtracted from the amount determined under paragraph 305-75(3)(b), Y. Y - X = Z. This figure is multiplied by the proportion of the total days determined under paragraph 305-75(3)(c) - '1' Z x 1 = Z. To this figure we add the amounts determined under paragraph 305-75(3)(d) - nil Z + nil = Z. The applicable fund earnings of Z will be subject to tax at either your client's marginal tax rate or at 15% if they have made an election to have the Australian superannuation fund treat the transferred amount as assessable income of the fund. See election eligibility below. | Detailed Reasoning - Election eligibility: A taxpayer who is transferring their overseas superannuation directly to an Australian complying superannuation fund more than six months after becoming a resident may be able to elect under subsection 305-80(2) of the ITAA 1997 to have all or part of the applicable fund earnings treated as assessable income of the Australian superannuation fund. To qualify the taxpayer must, immediately after the relevant payment is made, no longer have an interest in the paying fund under subsection 305-80(1) of the ITAA 1997. As your client no longer has an interest in either foreign pension fund your client is eligible to make the election. | Detailed Reasoning - Conclusion:: The 'applicable fund earnings' in respect of the lump sum payments made from Pension Fund 1 and 2 are C and Z respectively. The remaining portion is non-assessable, non-exempt income.