The proposed $1.6 million balance cap will, if introduced, will result in substantial changes from 1 July 2017 and is likely to generate significantly more tax on the payment of death benefits.
Summary of the new cap
The Liberal Government’s balance cap announcement on 3 May 2016 involves:
- A maximum $1.6 million (plus earnings thereon) balance cap on the total amount of superannuation an individual can claim tax free as exempt current pension income (‘ECPI’).
- Earnings on the amount of balance cap will not be restricted by the $1.6 million cap. Thus, if this amount increases in value by growth and net earnings during the retirement account phase, the total amount of the original balance cap plus the earnings remain tax free.
- Members already in the retirement phase with a balance above $1.6 million will be required to reduce their retirement phase account balance to $1.6 million by 1 July 2017.
- Excess balances will generally be converted to accumulation phase.
- A tax on amounts that are transferred in excess of the $1.6 million cap (including earnings on these excess transferred amounts) will be applied, similar to the tax treatment that applies to excess non-concessional contributions (‘NCC’).
- The amount of cap space remaining for a member seeking to make more than one transfer into a retirement phase account will be determined by apportionment.
Naturally, the balance cap proposal depends on a few hurdles to be successfully overcome before it is finalised as law for its mid-2017 introduction. Moreover, I have made numerous assumptions below on what I believe to be my best guess on how the new system will operate given the lack of information that has so far been published on this proposal. Thus, the speculation below should not be relied on but is my best guess on what may occur given my more than 30 years’ experience in the tax and superannuation industry.
How will the balance cap work?
Example of a couple who are over their balance cap
We will start with an example of a Max and Jan who have the following facts:
- They have both have accumulated $2 million each in their SMSF.
- They both have attained 65 years and are currently both receiving account-based pensions.
- They have no accumulation account.
- The SMSF investments yield a 4% p.a. net return.
As of 1 July 2017 both Max and Jan will have their balance caps set at $1.6 million. They will both then have $400,000 in accumulation phase. The balance cap for each of Max and Jan has been fully utilised as to 100% of the $1.6 million cap.
The SMSF trustee will now pay tax in respect of Max and Jan’s accumulation accounts. The $1.6 million plus earnings is exempt as this falls below each of their balance caps. However, earnings on the $400,000 for each of Max and Jan will be subject to tax, ie, $800,000 x 4% = $32,000 x 15% = $4,800 tax (assuming there are no capital gains that qualify for the 1/3rd CGT discount) or franking offsets.
Since Max and Jan have used up their balance caps, they can no longer transfer any more to their retirement phase accounts.
Can a pension be paid from accumulation?
The question that arises here is: can a pension be paid from accumulation mode? More particularly in Max and Jan’s case, assuming they each have a $2 million account-based pension as at mid- 2017, can $1.6 million remain in the retirement phase account being the maximum of their balance cap and the remaining $400,000 continue to fund their existing account-based pensions from their respective accumulation accounts?
Traditionally, our mindset is that a pension is funded from a member’s pension account (not an accumulation account). From 1 July 2017, however, will the balance cap merely restrict the amount that can qualify for the ECPI or will it merely be the upper limit of any pension that can be funded?
There is no reason theoretically to preclude a pension from being paid from two different accounts such as the retirement phase account and an accumulation account within the one superannuation fund. However, traditionally these accounts have been labelled as a pension account. The question therefore arises as to what approach the balance cap legislation will take.
Let us now assume that the legislation specifies that the only account that can pay a pension is the retirement phase account which is restricted by each member’s balance cap. This would certainly ease the regulatory administration of the balance cap and the amount of ECPI that each member could obtain. This method would also give rise to significant flow on implications.
Naturally, there are other methods that could be permitted such as allowing a pension to be paid from two accounts such as the retirement phase account and an accumulation account. However, the only account that benefits from the ECPI is the retirement phase account up to the balance cap limit.
Thus, under either method, the assets that exceed the member’s balance cap are either paying a supplemental pension on top of the member’s retirement phase account (subject to their balance cap) or the member can simply withdraw further lump sum payments from their accumulation account as and when needed.
My guess is that the legislation may restrict pensions from being paid from a retirement phase account that is limited by the balance cap. Any excess can be dealt with as lump sum withdrawals from accumulation phase.
What happens on death?
The balance cap will restrict the amount that will obtain the ECPI. Assets not covered by the balance cap will not obtain the benefit of the ECPI.
Back to our Max and Jan example where each has a $1.6 million pension and a $400,000 accumulation interest. Typically, many couples prefer to revert their pension to their surviving spouse and this is exactly what Max and Jan intended to do. We will now assume Max dies first. However, Jan has already fully used her balance cap and therefore cannot obtain any further transfer to her balance cap.
Thus, on Max’s death, it is unlikely under the new proposal that a surviving spouse will be entitled to obtain a reversionary pension where it exceeds the surviving spouse’s balance cap. This appears to be the outcome if the only pension that a member can obtain is via their retirement phase account subject to their balance cap.
In this example, Jan has fully utilised her balance cap. Thus, Max’s balance cap of $1.6 million and his $400,000 accumulation benefit would have to be paid out to Jan as a lump sum death benefit. This will naturally result in significantly more tax being payable in respect of the assets that need to be realised to pay out Max’s benefit as a lump sum benefit as a result of his death.
I expect that only the amount of $1.6 million (plus net earnings thereon) balance cap would benefit from ECPI under regulation 995-1.01(3) and (4) of the Income Tax Assessment Regulations 1997 (Cth) (‘ITAR’) if Max did not have an automatically reversionary pension. Broadly, this regulation applies to extend the pension exemption (ie, ECPI) until the assets supporting a pension are realised to pay out a death benefit where the pension is not an automatically reversionary pension. This regulation can minimise the tax and capital gains tax (‘CGT’) arising to an SMSF trustee in respect of realising assets to pay out a deceased’s benefit on death. However, as discussed above the ECPI is subject to the balance cap and the amount in the accumulation account would not obtain this exemption.
If an automatically reversionary pension could be payable, the pension exemption would usually continue. However, as discussed above, the new balance cap approach appears to preclude a surviving spouse receiving a reversionary pension where he or she already exceeds their remaining balance cap.
Thus, there is likely to be considerably more tax payable by a fund trustee in respect of the payment of death benefits where the amount exceeds the deceased or surviving spouse’s balance cap.
Succession planning will be more important under the new regime. Many have not yet envisaged that the substantially impact the balance cap proposal will have and should obtain expert advice in respect of what planning opportunities there are to minimise any resulting tax.
Adding additional moneys to retirement phase account
If Max and Jan had, say in 10 years down the track, further contributions to build up their superannuation balances they could make a further transfer to their retirement phase account. They should be in a position to add $200,000 as indexed to their then balance cap (ie, in mid-2017 their balance cap was $1.6 million and they had transferred only $1.4 million towards their cap). Assuming the initial balance cap has been indexed to say $1.8 million divided by $1.6 million (ie, $1.8/$1.6 = 1.125). Therefore, Max and Jan can each transfer a further $225,000 (ie, $200,000 x 1.125) without exceeding their balance cap. Note, the balance cap is to be indexed by $100,000 increments in line with the consumer price index.
What if a pension needs to be rolled back or rolled over to another fund?
Taking the example above of Max and Jan who have pensions of $1.4 million each and they divorce, then assuming Max has to roll his pension to another superannuation fund, there would need to be a mechanism to adjust his balance cap for the purposes of recognising the roll back to accumulation so Max’s interest could be rolled over to another superannuation fund.
We would assume there would need to be a rule that allows the full amount to be rolled back into accumulation. Broadly, since the amount in the balance cap is capped, then on roll back the full amount should be within the balance cap even if there has been considerable earnings. However, where someone has already used up their balance cap, eg, Max has used $1.4 million of his $1.6 million balance cap, then he has used 87.5% up of his balance cap. Thus, assuming Max’s balance cap amount had grown to $1.8 million, then on roll back to accumulation the full amount of $1.8 million should still be within his cap. Max would also have the ability to contribute 12.5% of his remaining balance cap of $200,000 (ie, 12.5% of $1.6 million). Thus, Max could contribute $2 million on the basis the $1.8 million was within his cap on roll back and his $200,000 remaining cap.
What if you fully use up your balance cap
The balance cap is a lifetime cap and in this regard it allows no flexibility should a member who has already fully utilised their cap suffers a global financial crisis (‘GFC’) event and loses around 50% of their retirement phase account. Similarly, if a member suffers a similar loss as a result of being embezzled by one of the many investment schemes or similar frauds they will have no further opportunity to obtain any ECPI in the future.
Transfers that exceed the balance cap
If Max and Jan transferred more than their remaining balance cap, the excess could be released after the ATO notified the members of the excess and provided a release authority. The amount of any associated earnings on the excess amount (calculated by reference to the general interest charge rate of around 10% p.a.) would be taxed at their respective marginal tax rates plus any applicable levies (Medicare and the Temporary Budget Repair Levy) if they elect to release the excess amounts. A 15% tax offset is then applied to Max and Jan’s tax to broadly reflect the tax payable by the fund. On the other hand, if Max and Jan decide not to release the excess amount, a 49% tax rate (equivalent to the excess non-concessional contribution tax) would apply to the amount of any excess transfer.
Example of a couple who are under their balance cap
If Max and Jan merely had $1.4 million each in their pension accounts in their SMSF, then they would each be within their balance caps. They would have each used up 87.5% of their balance cap. There would be no need to change their plans and, subject to what else would need documenting, a trustee resolution confirming their balance caps are under the threshold as of 1 July 2017 would be prudent.
How and by when will we have to establish the balance cap?
We will need to await the detail especially what might be required to appropriately document each member’s balance cap. A period of 12 months was, for example, provided from mid-2007 for each superannuation provider to calculate the crystallised pre-July 83 amount in relation to each superannuation interest before a 30 June 2008 deadline to avoid a penalty of 5 penalty units for each member under s 288-105 of the Taxation Administration Act 1953 (Cth).
We will also have to await by what time the balance cap needs to be established and completed as the accounting information and market values of assets are unlikely to be available as of 30 June 2017. In many cases, the accounts will not be finalised until close to 30 June 2018 and obtaining an appropriate market value can take considerable time.
Assuming the current Liberal-National Government is elected to office in July 2016, what the final rules that regulate the retirement phase account and balance cap will not be known for some time. Many will however start planning what they need to do leading up to 30 June 2017 as soon as detail about the new legislation starts being released. Many will need to focus on their estate and succession planning once the rules are clarified to ensure the impact of the new death tax is minimised.