Transferring foreign superannuation fund amounts to an Australian resident

This article provides a brief overview of the main rules on transferring lump sum amounts from foreign superannuation funds (‘FSFs’) to an Australian resident or to an Australian superannuation fund in respect of an Australian resident.

BACKGROUND

Broadly, an Australian resident taxpayer is assessable on the applicable fund earnings (‘AFE’) in respect of payments and transfers from FSFs where that person has been a resident of Australia for more than 6 months: see s 305-70 of the Income Tax Assessment Act 1997 (Cth) (‘ITAA 1997’).

However, to the extent that that person transfers the lump sum from a FSF to a complying Australian superannuation fund, the AFE is generally excluded from that person’s assessable income: see ss 295-200 and 305-80 of the ITAA 1997.

Example of a FSF transfer to an Australian SMSF

• Liam has a self managed superannuation fund (‘SMSF’) that is a regulated Australian superannuation fund that is also a resident and complying superannuation fund.
• Liam is considering transferring $540,000 from his overseas superannuation fund (‘O’S Fund’) to his Australian SMSF.
• After Liam became a resident of Australia:
  • no contributions were made by Liam to his O’S Fund;
  • there have been no amounts transferred to Liam’s O’S Fund from any other FSF; and
  • no payments or transfers were made in respect of Liam to or from any other FSFs.
• Assume that Liam’s membership period for his O’S Fund was 6 years before he became an Australian resident and 4 years post.
• Also assume that Liam had $440,000 in the O’S Fund when he became an Australian resident.

Liam’s analysis

Liam must include the amount of any superannuation lump sum that relates to his ‘applicable fund earnings’ (‘AFE’) under s 305-70(3) in his assessable income for the year of receipt, if he:

• received his superannuation lump sum from a FSF more than six months after becoming an Australian resident for tax purposes; and
• reduced by the AFE amount that he chooses to be assessed in an Australian superannuation fund as permitted under s 305-80. As noted in the note under s 305-70(2):
  
  Note: Under section 305-80, if your lump sum is paid into a complying superannuation plan, you can choose to have some or all of the applicable fund earnings excluded from your assessable income. The amount you choose is included in the assessable income of the plan: see section 295-200.

Thus, Liam must include AFE in either his personal Australian assessable income or in the income of his chosen complying Australian superannuation fund if he exercises a choice under s 305-80.

Australian resident criteria

Under s 305-70(1) of the ITAA 1997 we note that Liam must be an Australian resident when he receives the lump sum. An ‘Australian resident’ is defined in s 995-1 of the ITAA 1997 to mean a person who is a ‘resident’ of Australia for the purposes of the Income Tax Assessment Act 1936 (Cth) (‘ITAA 1936’). Section 6 of the ITAA 1936 defines a ‘resident or resident of Australia’ to mean:

1. a person, other than a company, who resides in Australia and includes a person:
   1. whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia;
   2. who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and that the person does not intend to take up residence in Australia; or …

Applicable fund earnings

Broadly, AFE is the earnings on Liam’s O’S Fund interest which has accrued (having regard to the method in s 305-75 below) since he became a resident of Australia. There are numerous private binding rulings (‘PBR’) dealing with the application of div 305 and they broadly describe its intention as:

The result of this calculation is that a person will be assessed only on the income earned in the fund whilst that person is a resident of Australia. That is, they will only be assessed on the accretion to the fund since they became a resident of Australia.

However, s 305-75 sets out the method for calculating AFE and has numerous rules that must be carefully followed to determine the assessable amount. We extract s 305-75 below:

If you were an Australian resident at all times

If you were not an Australian resident at all times

We will now analyse the application of s 305-75 as follows:

• An amount received by Liam from the O’S Fund or rolled over to an Australian SMSF would be covered by s 305-75(1).
• The method under s 305-75(3) is applicable to the $540,000 transfer as Liam has been an Australian resident for four of the ten year period to which the lump sum from that O’S Fund relates. Applying the method in s 305-75(3) to Liam’s facts, the following AFE arises (with references to the relevant part of s 305-75(3)):
  • (3)(a)(i) $440,000 was vested in Liam just before he became an Australian resident;
  • (3)(a)(ii) no contributions have been made to the O’S Fund since Liam became an Australian resident;
  • (3)(a)(iii) no FSF transfers have been made to the O’S Fund since Liam became an Australian resident;
  • (3)(b) subtract $440,000 from the $540,000 when the lump sum is paid, resulting in a net $100,000;
  • (3)(c) multiply the resulting amount of $100,000 by the proportion of the total days during the period when you were an Australian resident (assume 100%, ie, 10 years divided 10 years – the legislation requires this calculation to be expressed in days), ie, $100,000 x 100%. This is generally only less than 100% where a person has ceased to be a resident for a period and then resumed residency during the period they retained a foreign superannuation fund. The ‘start day’ under (3) is linked to when you first became an Australian resident;
  • (3)(d) add previously exempt fund earnings – nil.

Thus, Liam’s AFE is $100,000 ignoring foreign exchange (‘FX’) translations (discussed below).

Note that Liam has the option of applying for a PBR where the ATO calculate the amount of AFE. There are numerous PBRs where certain assumptions were required to be made and a PBR was requested to provide greater certainty on the outcome. This might be an option for Liam to reduce risk and uncertainty.

Election to include AFE in an SMSF’s assessable income

Liam will need to plan ahead to be in a position to elect to have some or all of the $100,000 amount of AFE included in his SMSF’s assessable income. Liam would be able to make an election to include some of his AFE in his SMSF’s assessable income under s 305-80 if the following conditions are satisfied. An extract of s 305-80 follows:

Applying Liam’s facts to the criteria in s 305-80, we note that:

• Paragraph (1)(c) requires there is no interest left in the FSF after the lump sum is transferred from the O’S Fund into Liam’s SMSF.
• The amount of AFE in respect of any such transfer from the O’S Fund to Liam’s SMSF would be assessable income to his SMSF and would therefore be subject to the usual 15% tax payable by an SMSF trustee.

Should Liam elect to include AFE in his SMSF under s 305-80?

There are a number of factors that relate to this decision. These include:

• As discussed above, the relevant O’S Fund must be cleared out and have a nil balance after the transfer to Liam’s SMSF. The AFE in relation to the transfer from the O’S Fund would be assessable income of the SMSF.
• Liam would be taxed at his marginal tax rate plus applicable levies (ie, a maximum total of 49%) on any AFE that is assessable to him personally in the absence of making a choice under s 305-80. Thus, Liam may prefer to have the tax rate capped at the usual 15% fund tax rate.
• The amount that can be transferred from Liam’s O’S Fund to his Australian SMSF is limited by the available capacity of Liam’s contribution caps as discussed below.

Transfers from an O’S fund to an Australian fund are subject to the contribution caps

A CC is defined in s 291-25. The relevant extract from s 291-25 follows:

Section 295-200 relevantly provides:

1. The assessable income of a fund that is an *Australian superannuation fund for the income year includes an amount transferred to the fund from a fund that was a *foreign superannuation fund for the income year in relation to a member of the foreign fund to the extent that the amount transferred exceeds amounts vested in the member at the time of the transfer.
2. The assessable income of a fund that is a *complying superannuation fund for the income year includes so much of an amount transferred to the fund from a fund that was a *foreign superannuation fund for the income year as is specified in a choice made by a former member of the foreign fund under section 305-80.
3. The amount is included in the income year in which the transfer happens.
   [Emphasis added]

Thus, to the extent that an amount transferred from the O’S Fund represents AFE, ie, $100,000, that amount would not be counted as a CC against Liam’s CC cap due to the amount being excluded from the CC cap under s 291-25(2(c)(i).

Non-concessional contribution cap

As discussed above, s 305-70 broadly includes so much of a taxpayer’s AFE in their assessable income to the extent that they do not make a choice under s 305-80. Section 305-70(3) provides:

(3) The remainder of the lump sum is not assessable income and is not *exempt income.

Broadly, a lump sum amount transferred is assessable to the extent of the AFE (ie, $100,000) and the balance is not assessable. If an election under s 305-80 is exercised, the $440,000 balance is treated as a non-concessional contribution (‘NCC’).

We now analyse what constitutes an NCC under s 292-90.

Therefore, we conclude that to the extent that a transfer from the O’S Fund does not reflect AFE (which is included in a fund’s assessable income), the amount will generally constitute an NCC. This is because, under s 305-70(3) the amount is not assessable income and therefore paragraphs (a) and (b) of s 292-90(2) are satisfied and no relevant exception applies under paragraph (c). Thus, we conclude the non-assessable amount is an NCC.

This means that Liam would need to be careful on the amount he transfers to his Australian SMSF as the usual contribution caps apply apart from the amount of AFE that is covered by a choice under s 305-80. Since Liam is under 65 years, he may be in a position to transfer the entire $540,000 to his SMSF from his O’S Fund under regulation 7.04 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) and s 292-85(3) of the ITAA 1997, if he has not previously invoked the bring-forward provision in relation to his NCC cap. However, Liam should still be careful to manage any FX fluctuations that may impact his caps.

It appears that Liam will only use up $440,000 of his NCC limit in respect of the above transfer.

What FX rate is used for converting AFE?

The AFE itself is not converted from FX into Australia dollars due to the method of calculating it, which requires reference to the ‘elements in the calculation of other amounts’ (s 960-50(4)). (Recall, the above example resulting in $100,000 AFE was simplified by ignoring FX). These prior elements must be calculated first. That is, each of:

• the value of the O’S Fund when it was transferred into Australia; and
• the value of the O’S Fund when Liam became an Australian resident.

These two elements are then both converted into Australian dollars at the time a payment from the FSF is received according to the Commissioner in ATO ID 2015/7. The Commissioner’s view in ATO 2015/7 was a change to his practice reflected in numerous prior PBRs and is not accepted as being correct by some superannuation industry advisers.

Amount of foreign income tax offset — Liam?

A foreign income tax offset (‘FITO’) may be available to Liam in respect of any AFE that is assessable to him personally. Liam may be entitled to claim a tax offset for any foreign tax he has paid on any part of the lump sum that he receives that is included in his Australian assessable income. To be entitled to a foreign income tax offset under s 770-10:

• Liam must have actually paid, or be deemed to have paid, an amount of foreign income tax.
• The income or gain on which Liam paid foreign income tax must be included in Liam’s assessable income for Australian income tax purposes.

However, the amount of the offset is also proportionate to the extent of his Australian income on which tax is paid. Section 770-10 provides [emphasis added]:

(1) You are entitled to a tax offset for an income year for foreign income tax. An amount of foreign income tax counts towards the tax offset for the year if you paid it in respect of an amount that is all or part of an amount included in your assessable income for the year.

…

Note 2: If the foreign income tax has been paid on an amount that is part non-assessable non-exempt income and part assessable income for you for the income year, only a proportionate share of the foreign income tax (the share that corresponds to the part that is assessable income) will count towards the tax offset (excluding the operation of subsection (2)).

Accordingly, only a proportion of the full foreign tax paid may count as an offset if only part of the lump sum from the O’S Fund is assessable income. Given that Liam has elected for his AFE to be assessable to his SMSF, he is not entitled to any FITO.

However, assuming he did not elect for the AFE to be assessable to his SMSF, then a proportionate FITO may have been available to Liam. Liam’s FITO claim would then broadly reflect the extent that the AFE is assessable income as a proportion of the total amount transferred. As discussed above, only part of a transfer may be assessable as AFE and the balance is generally exempt.

As a non-refundable tax offset, any amount of FITO would only reduce Liam’s income tax payable (including Medicare levy). Under the tax offset ordering rules, the FITO is applied after all other non-refundable tax and non-transferable offsets. Once Liam’s tax payable has been reduced to nil, any unused FITO is not refunded to Liam, nor can it be carried forward to later income years.

Conclusions

Our world is becoming increasingly globalised and advisers need to be aware of the complexities that may arise in dealing with the above types of queries. The above example was relatively straight forward and typically the issues that arise in real life require expert assistance. Unfortunately, the legislation and ATO guidance in this area is far from clear!

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