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Eight investment pools in the new tax hierarchy

There are only two reasons why people save for their retirement in the superannuation system. One, they are forced to by the compulsion of the Superannuation Guarantee, and two, to take advantage of the favourable tax treatment. The latest tightening of concessions is coming with the new 15% tax on balances over $3 million, and it adds another layer of decision-making for those affected. It is no longer straightforward that the more in super, the better.

Tax planning can become extremely complex and nuanced for individuals. This article looks at the major investment pool choices and taxes but does not attempt to address every individual circumstance.

Access to superannuation

The tax advantages of superannuation come at the cost of lack of access until one of the Conditions of Release is met. However, despite successive governments and reviews confirming super is intended to finance retirement, there are no limits to taking money out of super when the member:

  • has reached their preservation age and retires
  • ceases an employment arrangement on or after the age of 60
  • is 65-years-old, even if they haven't retired.

Therefore, when a government introduces a new super tax, most members in retirement can adjust their investment structures and if advantageous, take money out of super without paying an exit tax. The new 15% super tax brings other choices into focus.

The tax hierarchy of investment pools

The new tax may bring a level of complexity to investment pool allocation which is more trouble than it is worth. It's a personal decision but many people do not want to spend their retirement years, after decades of working hard, balancing investments between different pools to minimise tax.

On the other hand, retirees are affronted by the constantly-changing rules, when all they have done is used the superannuation system to save as they were encouraged to. They feel the rules of the game are tightening because they have played it well, and they will respond accordingly.

The simpler world of the past was to own a home by the time of retirement, leave some money outside super to spend, and hold as much in super for the tax advantages. For those who can be bothered, it’s not so simple anymore.

Let’s consider the investment pools according to tax treatment.

Pool 1. Investments outside super using tax-free thresholds

Personal income tax is calculated using tax-free thresholds with concessions for older people, such as the Senior Australians and Pensioner Tax Offset (SAPTO). For Australians generally, the tax-free threshold is $18,200, but for those subject to SAPTO, personal incomes less than about $32,000 for individuals and couples combined above $58,000 are tax-free. Some people will avoid the complexity and costs of other structures by investing in their own names but check eligibility using a SAPTO calculator.

Pool 2. Superannuation in pension mode

A pension fund is tax-free for both income and capital gains, and the member pays no tax on a pension received. The Transfer Balance Cap (TBC) which places a limit on the amount that can move from accumulation to pension was initially set at $1.6 million, is currently $1.7 million and will move to $1.9 million on 1 July 2023. These limits are per person meaning a retired couple will soon have access to $3.8 million when opening new pension accounts (existing caps do not change).

In a few years with indexing and inflation staying stubbornly high, these limits will reach the $3 million level, as the TBC is indexed but the $3 million cap is not. Over time, hundreds of thousands of people will start balancing the opportunities of tax-free super against the $3 million tax.

It is sometimes claimed that Pool 2 is superior to Pool 1 because Section 116(2)(d) of the Bankruptcy Act provides that superannuation is excluded from property divisible amongst the creditors of a bankrupt person.

Pool 3. Investment in a Principal Place of Residence

Although many people argue a home is not an investment, the favourable tax treatment for social security eligibility and lack of capital gains tax means many Australians consider their home as a place to store wealth. The tax system encourages expensive homes and renovations as a way to both enjoy wealth tax-free and qualify for government benefits. There is no cap on this expenditure and a person can live in a $10 million home and receive a full age pension.

The above three pools allow investment without paying any tax.

Now we move into the pools which minimise but not eliminate tax.

Pool 4. Superannuation in accumulation mode

In accumulation mode, earnings are generally taxed at 15%, although there are further concessions for capital gains on assets held for longer than 12 months. Franked dividends can also offset tax liabilities.

Pool 5. Superannuation balances over $3 million

The new tax will commence on 1 July 2025 and apply from the 2025-26 financial year onwards for individuals with more than $3 million in super on 30 June 2026. Firstlinks has covered the choices and consequences extensively and we will not repeat all the alternatives in this summary.

It is incorrect, however, to describe this as a 30% tax regime, by adding the 15% tax in accumulation mode and the new 15% tax on balances over $3 million. The definitions of ‘earnings’ in each are radically different, with the most notable being the taxation of unrealised capital gains in the high balance calculation.

An asset that rises in value by say $1 million in a financial year will face the new $3 million tax calculation, but if unrealised, it is not in the first 15% tax on accumulation funds. It may also not be taxed at 15% because it is the proportion over $3 million that is taxed. Plus it is possible to hold $3 million in a pension account which is taxed at zero, then pay 15% on the rest, without paying 30% in total.

The additional 15% tax brings into play comparisons with other tax structures which pay tax at 30% but are not subject to the tax on unrealised capital gains.

This is where the new tax changes the game for those planning their tax affairs according to the tax consequences.

Pool 6. Family trusts

A trust is a structure that holds assets on behalf of beneficiaries. Family trusts are used to distribute income, and therefore tax obligations, amongst multiple family members, especially to lower-income earners.

For example, a family trust might include two high-income parents on the highest marginal tax rate and two children who are adult full-time students with no other income. The investment income could be redistributed to the students, subject to special rules on taxing income of minors under 18-years-old.

A trust must distribute income in the same year the income is earned but it cannot distribute losses which can be used to offset capital gains either in the same year or carried forward. Trusts are eligible for the 50% capital gains tax discount after holding an asset for over 12 months.

Anyone setting up a trust should seek professional advice and expect ongoing costs, and there are other factors to check. For example, some Australian states charge higher land taxes on trusts.

Pool 7. Private investment companies

Investors can place money into a personally-controlled company which is a separate legal entity. Unlike a trust, there is no requirement for a company to distribute income each year, allowing the company to accumulate assets like other savings pools such as superannuation.

The tax rate is 25% or 30% depending on circumstances, which may be less than marginal tax rates. When dividends are paid by the company, the franking credits held by the company pass to the recipient.

A company is not eligible for the capital gains tax discount afforded to individuals and trusts. Companies have initial set up costs, ongoing advice and administration costs.

Investors may utilise a structure where one of the beneficiaries of a trust is a 'bucket' company. The company receives income from the trust which is then invested by the company and taxed at company tax rates rather than higher marginal personal tax rates. Assets can be held in the company and income distributed later. One advantage of this structure is the earnings in the company are not subject to tax on unrealised capital gains, as the new $3 million super tax imposes.

Financial advisers and accountants are already promoting this structure to clients.

Pool 8. Others such as investment bonds, family loans and philanthropy

All investment portfolios are unique based on individual preferences and circumstances, and an infinite array of ways to accumulate wealth or spend money. Many alternatives can fit into this final pool but three are increasingly popular.

One, investment (or insurance) bonds will become more competitive due to higher tax rates on super and are worth considering by anyone who has a marginal tax rate greater than 30%. As long ago as 2015, Firstlinks published an article called, “Will insurance bonds become the new superannuation?”.

Two, with the rise in residential property prices and interest rates, adult children increasingly rely on the Bank of Mum and Dad (and maybe the Bank of Grandfather and Grandmother) to buy a home. Instead of leaving money to children in an estate, parents gift or loan money earlier. It has also become common for bequests to skip a generation and go straight from grandparent to grandchild.

Three, with wealth accumulated, more people turn to philanthropy, including giving to charities or opening Public or Private Ancillary Funds, which not only help those less fortunate, but give the donor a tax deduction.

Interplay between pools

Faced with many choices, investors do not need to set and forget. They can rebalance between the pools regularly as values rise and fall and tax implications change.

For example, while the limits on the amounts that can be invested in superannuation continue to tighten, there are no limits to the amounts invested in companies, trusts or insurance bonds.

When personal taxable income is less than the tax-free threshold, the company can pay dividends into the pool allocated for personal income, until the pool is full. Where more income is needed, a company can pay back some of the money invested.

Money must be drawn out of a superannuation pension fund each year according to mandated minimums.

And critically, at some stage, a major decision is required when to transfer money out of super to avoid the 17% ‘death tax’ when super is inherited by a non-dependant who is not a spouse.

How does this relate to the common ‘bucket’ strategies?

The use of these pools based on expected tax treatment should not be confused with the common financial planning technique of using ‘buckets’ to manage income needs.

This strategy involves dividing a portfolio into different buckets according to expected cash flow needs. There is a cash bucket of highly-liquid assets for living expenses, maybe based on cash needs for a few years to avoid selling down a share portfolio if the market falls. A second bucket might include bonds or term deposits that provide income but mature in three or four years. Riskier assets such as shares are placed in a third bucket for longer-term growth.

This bucket strategy can operate alongside the pools. For example, a retiree could include cash in each of a superannuation, personal or company pool and draw out as needed. However, a product like an investment bond would need to fit into a longer-term bucket.

 

Graham Hand is Editor-At-Large for Firstlinks. This article is general information and does not consider the circumstances of any person, and personal financial and tax advice should be obtained by anyone considering the complexities of using different pools for their investments.

 

27 Comments
Dudley
June 18, 2023

Pool 1. Investments outside super using tax-free thresholds
Pool 7. Private investment companies

For a couple with health insurance and SAPTO offset, the tax free threshold is $29,783 each and the marginal tax rate is 31.5%.
https://paycalculator.com.au/
(Set "Business income" = gross dividends = dividends + franking credit; "Tax credits" = franking credit)

The marginal tax rate for a private investment company is 25%.

Private investment company paying 2 * $29,783 = $59,566 / y gross dividends includes $14,891.50 franking credits for overall tax rate of 0%.

Couple with expenses less than $59,566 income will accumulate savings which, if invested, will reduce the tax efficient amount of gross dividends that can be paid from the private investment company.

When the income from personal investment is likely to exceed the tax free threshold, capital can be lent to the private investment company to reduce the personal income and the private investment company can pay gross dividends just sufficient to make the personal income equal to the personal tax free threshold.

The private investment company then serves as an income buffer to ensure that the personal income does not exceed the tax free threshold, that the personal marginal tax rate is 0% and the marginal tax rate for income in the private investment company (25%) is less than the personal marginal tax rate (31.5%).

Brian
May 29, 2023

To David James, to make it clear, you are not correct when you say: "In a LIC P&L you will see movement on financial assets (a BS item). That is the taxing of unrealised CGs. I've heard the point made that "no where else are you taxed on unrealised CGs" - there is an example that statement is not accurate." Although LICs provide for the tax on unrealised gains along the way, they only pay tax on the gain that is eventually realised.

Manoj Abichandani
May 28, 2023

Graham, good article but your pool 4 Acumulation Superannuation is wrong - it should be Pool 9 as it pays the highest amount of tax.

Pool 4 should be Negative gearing - looks like you have forgotten about it

Let me first explain why accumulation account in superannuation due to preservation rules pays the highest amount of tax

Imagine if $10 K concessional contribution is invested for 6% return at the start of the year on 1st July

You pay 15% tax on $10K as tax on contribution plus $90 tax on income of $600

For a moment imagine tax is paid on 30th June and not on 15th May the following year

You have $8,500 from the contribution and $510 or $9,010 ready to be invested again in year 2 and on 6 % will generate an income of $540 which will be taxed again - since this income cannot be withdrawn due to preservation rules - for a 30 year old, my calculations have shown over 100% tax! On the $10K contribution.

Further by 14th year, you would rather be taxed as an individual at the highest marginal tax rate than do any salary sacrifice!!

Paying off the home loan of $10 M or buying a Negatively Geared property gives a better result - then later at any age, home or NGP can be upsized or down sized depending on how much cash you need to live on

Sometimes I feel that compulsory super was introduced to grab 100% tax on concessional contributions (and tax on income and tax income on income)

Hence, I am helping my children NG to buy property for my grandchildren who are 2 and 4 year old - tenants will be kicked out when the grandkids are ready to move in and suggesting their employers engage them as contractor rather than employees to avoid compulsory super - at least to age 50 when they are 15 years away from retirement to quickly reach $1.9M with non- concessional contributions ($110K X 15) to avoid death tax

For me and spouse, we were bluffed by Castello to put maximum in - for nivana after 60. since I am 5 years older than my spouse, I took all her concessional contributions and with that came all the income - making the fund almost as a single member fund with my balance over $3 M.

So now two strategies have been recommended
1) Divorce to level super balances
2) Sell assets in SMSF and buy NG properties in Family Disc.Trust

Dudley
May 28, 2023

"by 14th year, you would rather be taxed as an individual at the highest marginal tax rate than do any salary sacrifice!!":

15% tax on 6% return, 14 years, 15% tax on $10,000 concessional contribution, initial capital of $0 results in:
= FV((1 - 15%) * 6%, 14, (1 - 15%) * -10000, 0, 0)
= $167,749
and returns:
= 6% * $167,749
= $10,064
and is taxed at a maximum marginal rate of 15%.

To be taxed less requires income less than the tax free threshold where marginal tax rate is 19%.

Allan
May 29, 2023

You've only succeeded in telling the burglar/s where most, if not all, the silver's kept now and will be at your abode. 

Peter
May 28, 2023

Re pool 5, you say that we can have $3M in a pension account and be taxed at zero. Isn't ther the pension account capped at $1.7M rising to $1.9M?

Graham Hand
May 28, 2023

Hi Peter, that amount is the Transfer Balance Cap, the maximum that can be moved from accumulation to pension. But once it is in there, the balance in pension can grow to anything. In theory, put all your pension in Afterpay (certainly not recommending this) at $5 a share and watch it grow to $100 and your pension account would be 20 times bigger. And well above the new $3 million tax.

David
May 29, 2023

My super fund seems to have found an exception to this. I set up a combination of defined benefit (using the 16 x multiple) and direct investment super accounts into retirement mode, just shy of the limit, then when said super fund's owners decided to exit the wealth business and eventually transferred the DB fund to a new owner some 15 months after I initiated it, it was re-reported to the ATO at its now inflated value which occurred off the back of just one annual CPI adjustment, as happens with DB pensions - triggering an Excess Balance Transfer Cap notification from the ATO. 6 weeks later, with only 15 days until that notice is due, still no-one at the super fund(s) seems to be able to straighten it out - or indeed, communicate effectively with their clients such as me, who are being pursued by the ATO. Unbelievable.

XXX
May 28, 2023

It is for a new pension account being created that the cap now is 1.7M. But if a pension account was created say 10 years ago with the then cap of 1.6M, it may have grown to $3M or more by now. That is completely tax free.

Retiree
May 26, 2023

Following Labor attacks on Super accumulated by people totally obeying the rules and encouraged by previous governments why would anyone think that the 7 pools discussed are any safer from attacks by a government desperate to take your money.. How about showing some more outrage about what this government is proposing on large super balances acquired legally?

Lyn
May 27, 2023

Hi Retiree, organise a march on Canberra in Sitting time, will be there in blink to support those wronged. Probably see a few pollies at hotel in Canberra. Also excellent, cheap camp site at Canberra Showground to save costs for some.

Ramani
May 26, 2023

Great coverage for such a complex subject (made more so not only by revenue-seeking governments but also by self-interested groups such as retirees, divorcees, about-to-retire and myriad rent-seekers super has spawned). Adding to the fun: even without super, we need vehicles to store excess of income over expenses; the propensity to leave inheritances; game the system whining about others who do likewise. The tension between current and deferred expense for those in working age (managing personal and family obligations and peer pressure for more material possessions beyond basics) makes voluntary contributions to super daunting. Death and taxes (singled out as certainties) are also great levellers. RBLs, TBSs, ECPis, and now the above $ 3 million tax alert us to the reality that otherwise dour, unimaginative Treasurers and mandarins can scale the summit of creativity at budget time, and leave the ATO to pick up the pieces. Historians have their work cut out...

Terry
May 26, 2023

To Rennie and others, My comments after observing both sides of politics continually messing with superannuation for the last 50 years or so, are don't put all your eggs in the one super basket. Plan now for some funds outside of super. Terry

Chris
July 03, 2023

Super was introduced in 1992. That's 31 years, not 50. Before that, it was the State Pension and/or company pension schemes; the old DB schemes cannot be touched and never will be, you can never lose with them - which is why they are not available anymore to anyone except politicians and top brass / judges.

David James
May 25, 2023

Re the company approach - Pool 7. If a company's primary purpose is to accumulate financial assets, wouldn't that company's purpose be deemed as share trading and therefore the changes in the investment portfolio will run through the P&L? I.e. you will be tax on the unrealised gains and losses year to year. Tax rate will likely be lower than the individual rate and losses are taken into account, but the min 25% is above the proposed 15% super rate.

Dudley
May 26, 2023

My pty ltd company's primary purpose is to run a small business resulting in a tax rate of 25%. My understanding is if primary purpose is investment then tax rate is 30%. I have only accounted capital gains when realised. I'll be much surprised if someone can prove that my company must account unrealised gains as income. Franking tax credits are imputed to the shareholders. When all after tax profit distributed as dividends then all company tax is credited to the shareholders; effective tax on gross dividends 0%.

Steve
May 26, 2023

If the private company is not earning at least 20% of its income from carrying on a "small business", then the company would be paying tax at 30% and not the lower rate. For those who use a private company purely as a trust beneficiary (i.e. bucket company), you would have to convince the ATO that the bucket company is in the business of trading. Not easy unless you have a track record. In addition, with the stage 3 tax cuts kicking in from 1 July 2024, the effect will be to align this 30% company tax rate with the marginal rate for those individual investors with taxable incomes between 45k - 200k. Another reason for questioning the merits of using a bucket company in future.

David James
May 26, 2023

The tax rate is one point, but not the one I was trying to make. (For what it's worth, the different tax rates are a bit redundant due to our franking credit system.)

People are thinking of using a Pty Ltd structure to avoid the taxing of unrealised capital gains (CGs). The point I am making is you will be taxed on unrealised GC in a Pty Ltd structure if that company is deemed as a trading company. If the only purpose of the company is to hold financial assets, I suspect that is the outcome. I.e. the new structure won't achieve the goal.

The obvious example is LICs (note there are some differences). In a LIC P&L you will see movement on financial assets (a BS item). That is the taxing of unrealised CGs. I've heard the point made that "no where else are you taxed on unrealised CGs" - there is an example that statement is not accurate.

Dudley
May 26, 2023

"you will be taxed on unrealised GC in a Pty Ltd structure if that company is deemed as a trading company.":

First such assertion I've heard.

Substantiation anyone?

Dudley
May 26, 2023

For individuals:

"Determining if you are a share trader is the same as determining whether your activities are considered to be carrying on a business for tax purposes."
[ business like buy / sell shares for gain = trader; hold shares for income = investor ]

"If you are a share trader: your shares are treated like trading stock in a business"

https://www.ato.gov.au/individuals/capital-gains-tax/shares-and-similar-investments/share-investing-versus-share-trading/

Dudley
May 27, 2023

"you will be taxed on unrealised GC in a Pty Ltd structure if that company is deemed as a trading company. If the only purpose of the company is to hold financial assets, I suspect that is the outcome. I.e. the new structure won't achieve the goal.":

If the company is 'day' trading shares in a business like manner then:
https://www.ato.gov.au/business/income-and-deductions-for-business/accounting-for-trading-stock/

If the share turnover is 'small' then the company will be taxed on realised profits; not unrealised valuations; and the Pty Ltd Pot is not cracked.

CM
May 26, 2023

The difference between pre and post tax NTA for an LIC is the deferred tax liability on unrealised gains. It's not actually tax paid (it's just a balance sheet item). If the gain is not realised, no tax is actually paid. I think that's different to the super proposals where my understanding is the ATO will actually make investors pay tax on unrealised gains.

Jack
May 25, 2023

So let me see. An accountant for my personal tax return. An administrator for my SMSF. Plus a company holding some of my investments and family trust to give income to my kids. Throw in an investment bond to cover future education costs. Allocate between them all and rebalance frequently. I could become a one man business doing all this.

Brian B
May 25, 2023

With super funds announcing more moves into financial advice, how many of them will recognise these new choices, that it's not all about putting as much as possible into their super?

Rob
May 25, 2023

Well written Graham. The other consideration particularly for SMSF's that hit the $3m threshold, are what assets are held within. Given the "tax" on unrealized gains, highly volatile speccy assets are a potential problem - you could trip the $3m in Year 1, pay tax on unrealized gains, only to see the winners last year, collapse in value in Year 2, potentially to never recover. My suggestion is that anybody threatened, should "back test" against previous years as it gives you a real feel for your exposure. For youngsters, Primary Residence, just jumped into poll position [again] as a wealth builder! The ones I feel really sorry for are those in Accumulation mode, close to or over $3m but not able to withdraw any excess and adjust - is just wrong. Lastly, for families, balancing Super accounts across family Members remains a good plan - two chances at $3m.

Rennie
May 25, 2023

No one is really talking about people who are not of retirement age yet, but fast approaching this age. I'm in my early 50's and have a SMSF that is less than 3 million dollars at the moment but will most likely be over 3 million within the next year and a half. An awkward stage with the new super tax laws fast approaching. I don't turn 60 for another 6 & 1/2 years. So I wont have the same same opportunities as some to draw down my super and place it else where by June 2025. Oh what to do? you think you have a well thought out plan then bang! Things can change fast.

Harry
May 26, 2023

Since the changes only come into force after the next election and the opposition plans to repeal them, at least one of your choices is rather simplified.

 

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