The Treasury Laws Amendment (Enhancing Superannuation Outcomes for Australians and Helping Australian Businesses Invest) Bill 2021 (Bill) recently passed both houses of Parliament and only awaits Royal Assent. The key superannuation measures in this Bill are:
- Removal of the $450 monthly income threshold for superannuation guarantee (SG) obligations.
- Increasing the amount eligible for release under the First Home Super Save Scheme from $30,000 to $50,000.
- Reducing the downsizer contribution eligibility age from 65 to 60.
- Changing the work test requirement and extending the non-concessional contribution bring forward rules for members aged between 67 and 75.
- Allowing trustees of funds with no disregarded small fund assets to choose their preferred method of calculating exempt current pension income (ECPI) when they have had all assets of the fund supporting pensions for part, but not all, of the income year.
To achieve this, the Bill makes amendments to the following legislation:
- Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA)
- Taxation Administration Act 1953 (Cth) (TAA)
- Income Tax Assessment Act 1997 (Cth) (ITAA 1997)
- Income Tax (Transitional Provisions) Act 1997 (Cth) (ITTPA)
This article explains some of the important changes from the Bill.
The Bill repeals s 27(2) of the SGAA. This section provided that superannuation contributions did not need to be made for employees receiving salary or wages of less than $450 in a month. Accordingly, employers will be required to make contributions for any employee regardless of the wages earned in a month. The Bill does not however remove other exemptions for employer SG requirements, such as part-time employees under 18.
This change applies in relation to a calendar month that is in a quarter beginning on or after:
- 1 July 2022; or
- if the Bill receives the Royal Assent after 1 July 2022—the day on which the Bill receives the Royal Assent.
Downsizer contribution eligibility
The Bill amends s 292-102(1)(a) of the ITAA 1997 to reduce the age of those who can access the downsizer contributions from 65 to 60. These changes are to apply to downsizer contributions made on or after 1 July 2022.
The Explanatory Memorandum for the Bill states that changes are also needed to the acceptance rules in the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SISR) and the Retirement Savings Account Regulations 1997 (Cth) (RSAR). Accordingly, advisers should ensure any relevant amendments to regulations are made before relying on these changes.
Moreover, the super fund deed may also require amending before a downsizer contribution can be made for someone under 65.
Work test and age restrictions changes
The Bill inserts a new s 290-165(1A) into the ITAA 1997 which applies the same amended ‘work test’ rule for people aged 67 to 75 as found in reg 7.04(1A) of the SISR to the deductibility requirements for personal/member contributions. Note that the deductibility requirements rules for employer contributions will be found in s 290-80 of the ITAA 1997 and will be less restrictive for mandated employer contributions.
That is, a member aged between 67 and 75 can make a deductible contribution, if they meet the work test, or, if they do not satisfy the work test in the relevant income year, they satisfy the work test exempt criteria.
The work test exempt criteria can apply if the following criteria is satisfied:
- The member was gainfully employed for at least 40 hours in any period of 30 consecutive days during the previous income year.
- The member’s total superannuation balance was less than $300,000 at the end of the previous income year.
- The member has not deducted a contribution in the previous income year or any earlier income years on the basis of satisfying these same criteria.
- No contribution was previously made under a prescribed provision of regulations made for the purposes of the SISR.
The ‘prescribed provisions’ of the SISR and the RSAR specify the equivalent ‘one off’ exceptions that apply to the existing work tests in the SISR and RSAR.
The relevant obligations on superannuation funds receiving contributions under the SISR and the RSAR will be removed. Thus, before relying on this change the following must occur:
- the Bill receives Royal Assent; and
- the SISR and RSAR are amended.
Naturally, the super fund deed also needs to be checked as it may require amendment before relying on this change.
The Bill also amends the bring forward provisions for non-concessional contributions in s 292-85 of the ITAA 1997 to provide that those under 75 can utilise the bring forward mechanism. Members will only be able to access the bring forward arrangements for years in which they have cap space. At an earlier stage, some commentators speculated that regulations might issue to phase down the bring forward limits before reaching 75. However, no further limitations were introduced. This means that if a member who was 74 with a total superannuation balance (TSB) of less than $1.48 million could contribute $330,000 prior to attaining 75 years under this change.
The bring-forward rule cap amounts in FY2022 are summarised below:
|Total superannuation balance on prior 30 June
|NCC for first FY
|Bring forward period in years
|$1.48m to < $1.59m
|$1.59m to < $1.7m
|1 (no bring forward period)
|$1.7m or more
Interestingly, s 290-165(1A) allows a member who is slightly over 75 years to make a contribution without having to satisfy the work test provided the contribution is made to the fund within 28 days after the end of the month in which they attain 75.These changes are to apply to contributions made on or after 1 July 2022.
These changes have been welcomed and advisers should take care to ensure they include these new options in their advice and planning for clients and that their documents and templates reflect the latest rules. As usual, advisers should ensure any relevant law is actually in place before relying on it as timing issues can arise.
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This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional. The above does not constitute financial product advice. Financial product advice can only be obtained from a licenced financial adviser under the Corporations Act 2001 (Cth).
Note: DBA Lawyers presents monthly online SMSF training. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.
For more information regarding how DBA Lawyers can assist in your SMSF practice, visit www.dbalawyers.com.au.
14 February 2022