Private ruling: Deductible amount of the undeduct purch price (UPP) of a foreign pension
Published: April 2012
Ruling period: 2010-11 income year | 2011-12 income year
Date scheme commenced: On or after 1 July 1983

Ruling: Q1: Are you entitled to a deductible amount in respect of the UPP of your foreign pension? | A1: Yes, you are entitled to a deductible amount.

Relevant facts and circumstances: · You receive a pension from a retirement fund established and managed outside Australia. · There is no Taxation Ruling or Taxation Determination published which provides for an alternative calculation or Commissioner's discretion under section 27H of the Income Tax Assessment Act 1936 (ITAA 1936). · The international tax agreement between Australia and the country from which your pension originates provides that the pension is taxable in Australia. · Your assessable income includes your pension income. · At the commencement of the pension you also received a lump sum. · The pension became payable on or after 1 July 1983. · The pension is payable for life, and has a limited reversionary nature. · All the pension is payable to you. · The residual capital value of the pension is nil. · Your pension is paid on a monthly basis.

Relevant legislative provisions: Income Tax Assessment Act 1936 Section 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 Regulation 1997 Regulation 960-50

Reasons for decision: Detailed Reasoning - Please note that all references to 'pension' cover both pensions and annuities: Subsection 27A(1) of the Income Tax Assessment Act 1936 (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 part of 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 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 ; and (A+B) Purchase of lump sum = A , where: (A+B) 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 You received both a lump sum payment and a pension on retirement. You paid personal contributions into the fund to obtain your 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 pension. It is necessary to determine what proportion of the total personal contributions, have been made to obtain your pension. As there is no alternative basis for allocating the personal contributions made to obtain both the pension and lump sum benefit, the above formula will be used. This percentage is applied to your total contributions paid to determine the purchase price of your pension benefit. 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 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, the relevant number is the figure that the Commissioner considers appropriate having regard to the number of years in the total period during which the annuity will be, or may reasonably expect to be, payable. In your case your pension contains elements of a life time pension and a fixed term reversionary pension. The Commissioner has therefore determined it would be appropriate to utilise the life expectation factor as it applies to the original pension only. 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: (1) the date when the pension first became payable; and (2) your age when the pension commenced. Your annual deductible amount of the UPP will apply for the 2011-12 income year and all subsequent years where the facts, as stated in the ruling, do not change. 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, pensions 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. Alternatively, regulation 960-50 of the Income Tax Assessment Regulations 1997 (ITR 1997) and Schedule 2 to the ITR 1997 allow pensions 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 1997 are satisfied. Where the pension 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 pension is paid on a monthly basis, 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 information line on 13 10 20 or visit our website at www.ato.gov.au/super.

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