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Managing TBC & minimising excess transfer balance tax

Managing TBC & minimising excess transfer balance taxOverview

This article focuses on managing a member’s transfer balance cap (‘TBC’) with a view to minimising excess transfer balance tax (‘ETB Tax’). We provide a brief background to assist members and SMSF trustees to better monitor transfer balance caps (‘TBC’) so they can avoid or minimise ETB Tax.

We primarily cover account style pensions such as account-based pensions and transition to retirement income streams (‘TRIS’) that are in retirement phase in this article. A TRIS where the member has not satisfied a relevant condition of release and satisfied the relevant additional criteria in s 307-80 of the Income Tax Assessment Act 1997 (Cth).

Despite Treasury suggesting that the TBC rules would only impact less than 1% of superannuation fund members, these rules are very complex and can result in extra tax being raised even from inadvertent oversights. Thus, expert advice should be obtained where there is any doubt.

TBC

Broadly, the TBC is a lifetime cap of $1.6 million that a member can transfer into retirement phase (ie, tax-free) pension phase.

The transfer balance account (‘TBA’) is a ledger that tracks credits transferred into retirement phase and debits that are commuted from retirement phase. The net account balance of the TBA called the ‘transfer balance’ (ie, total credits minus total debits) reflects a person’s remaining TBC cap space. Importantly, credit and debit amounts are fixed at the time they are recorded in the TBA.

Importantly, investment gains and losses and pension payments do not impact the TBA.

A member who exceeds their TBC will have excess transfer balance earnings accrue on the excess transfer balance which are credited to their TBA, compounding that member’s excess until it is rectified.

A common issue identified by the ATO where people exceed their TBC is when an SMSF member commutes their pension in their SMSF (eg, a $1 million pension) and then rolls their benefit to an industry or retail superannuation fund to commence a new pension. Large funds report TBA events on a monthly basis. Thus, the member has a credit for the pension they started in their SMSF (eg, $1 million) and they also obtain a credit from starting their new pension in the large fund (eg, $1 million, giving rise to a $2m credit with a $400,000 excess). Since SMSFs typically report on an annual or quarterly basis, the member’s TBA may not reflect the debit from the commutation in the SMSF and the member therefore still has two credits (eg, 2 x $1 million) giving rise to excess transfer balance earnings. However, SMSFs can report TBA events prior to their prescribed annual or quarterly deadlines and are encouraged to do so to minimise these types of issues.

Where an excess results from a reporting error by the superannuation fund, the trustee of that fund needs to lodge TBA reports (TBAR) cancelling the incorrect information and provide the correct information to the ATO as soon as possible.

A member can rectify an excess transfer balance by commuting an appropriate amount of their pension(s) to eliminate any excess (together with any excess transfer earnings thereon).

A superannuation provider, including an SMSF trustee, should make reasonable efforts to consult with the member on whether they would like the excess amount to remain within superannuation fund in their accumulation account or whether it should be paid as a lump sum benefit.

Excess transfer balance earnings

A member with an excess transfer balance is deemed to derive notional earnings on the relevant excess amount that is subject to EBT Tax which is payable by the member.

Notional earnings accrue on a member’s excess transfer balance based on the general interest charge (‘GIC’; currently 7.10% for the quarter of 1 July 2020 to 30 September 2020). These notional earnings compound daily, eg, each day the member has an excess notional accrue. Notional earnings cease being credited to the member’s TBA when the ATO issues an excess transfer balance determination or the member ceases to have an excess transfer balance, whichever occurs first. This allows the ATO’s determination to confirm a fixed amount to be commuted from the member’s retirement phase (ie, the amount of the excess plus the amount of notional earnings confirmed in the determination).

While excess transfer balance earnings accrued after a determination issues are not reflected in a member’s TBA, the member remains liable for ETB Tax on notional earnings until they remove any excess amount.

If a member rectifies an excess transfer balance before the ATO issues a determination, they should also calculate the notional earnings on the excess amount that needs to be removed from their retirement phase pension. Timely action by the member in removing any excess (including any notional earnings thereon) minimises any ETB Tax that needs to be paid. By taking timely rectification action before a determination issues overcomes the need for the ATO to issue a determination and allows the ATO to issue an excess transfer balance tax assessment instead.

Where a member does not remove the amount of the excess amount in time, the ATO will issue a determination. Broadly, this determination specifies the amount to be removed (ie, ‘crystallised reduction amount’) and a default commutation notice is also issued that specifies the relevant fund(s) and pension(s) from which the excess must be removed within 60 days.

Where a member has more than one pension, they may elect the fund(s) and pension(s) that are commuted or partially commuted rather than merely accepting those specified in the ATO’s default commutation notice provided the total amount of commutations at least equals the crystallised reduction amount. This election must be lodged within 60 days of the determination.

A member should therefore notify the ATO of any commuted amount in the approved form as soon as practicable after a determination issues and in any event within 60 days of a determination.

Failure to comply with a determination within 60 days can result in the pension ceasing to be in the retirement phase. This will result in the pension ceasing to qualify for a pension exemption from the start of the relevant financial year (eg, if the member ceases to comply by say a 31 December 2020 deadline, the pension exemption is denied from the prior 1 July 2020). Since that pension is deemed to have ceased, a debit will then arise in that member’s TBA for the capital supporting that pension.

Naturally, SMSF trustees should act in a timely manner to minimise any risk of a member’s pension ceasing to be in the retirement phase and the adverse follow on consequences flowing from a compulsory commutation notice. These adverse consequences require further adjustment to the member’s TBA, loss of the pension exemption and the requirement to commence a new pension to restart a fresh pension in the retirement phase that is within the member’s remaining TBC.

Summary
of Excess Transfer Balance Earnings
Member gives rise to an excess in their TBC
Member should seek to rectify any excess ASAP
If excess is not rectified prior to a determination being issued, the member will need to:

  • respond to default commutation notice nominating specified pension(s) and/or pensions in other fund(s); or
  • elect to nominate other pension(s) and/or pensions in other fund(s)
If the excess is rectified prior to the determination issuing, the member will be provided an excess transfer balance earnings assessment
Failure to comply with a commutation notice within the requisite 60 day period can result in the relevant pension(s) ceasing with loss of the pension exemption and the other consequences outlined above

ETB Tax

Once the excess amount and excess transfer balance earnings have been removed from retirement phase, the ATO will calculate the amount of ETB Tax that is payable. Broadly this tax is based on (as adjusted for days the member is in excess and the relevant interest rate, etc):

excess transfer balance earnings from the day a person first exceeded the cap until the date of rectificationxthe excess transfer balance tax rate

Note that notional earning on the excess transfer balance accrue until the excess position is fully rectified. In contrast, the amount of notional earnings credited to the member’s TBA is the amount stated in the ATO’s determination.

The ETB Tax (ie, the tax rate on notional earnings) is 15% for excess transfer balances for first time offenders. However, a 30% tax rate applies for subsequent breaches (see s 5 of the Superannuation (Excess Transfer Balance Tax) Imposition Act 2016 (Cth)). This tax is a personal liability of the relevant member.

Given a member generally has satisfied a condition of release on commencing a pension in retirement phase, they can access the commuted amount if they wish to pay any ETB Tax from those funds.

ETB Tax is due and payable 21 days after the assessment is issued and GIC accrue on any late payment. A member who is dissatisfied with a determination can object under the standard objection regime for taxation matters under Part IVC of the Tax Administration Act 1953 (Cth).

MLPs and other pensions

ETB Tax is not imposed for a breach of the TBC that is attributable to capped defined benefit income streams as these pensions are subject to special income tax rules.

Further, there have been recent changes to the TBC rules in respect of market linked pensions  (‘MLP’) that commenced before 1 July 2017. For more information please click here.

The TBC provisions relating to these pensions are too complex to summarise here and expert  advice should be obtained.

How DBA Lawyers can help

We can assist by providing expert advice and planning for strategic debits and credits in the TBA  to assist in management of a member’s personal TBC. Further, we can assist by providing advice to those who need assistance to rectify a breach.

We offer a variety of documents that may assist such as payments above the pension minimum documents and reversionary pension documents.

Conclusions

Care should be given when managing a member’s personal TBC to ensure that they do not exceed  it. Further, credits and debits going in and out of the TBA should be monitored in order to ensure that a member has sufficient personal balance cap before they commence or commute funds into  or out of a pension phase account.

Related articles

This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional.

Note: DBA Lawyers hold regular SMSF CPD online training. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.

By Daniel Butler, Director ([email protected]) and Zacharia Galloway, Lawyer ([email protected]), DBA Lawyers

DBA LAWYERS

1 September 2020

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