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Meg on SMSFs: $3 million super tax coming whether we’re ready or not

In a monthly column to assist trustees, specialist Meg Heffron explores major issues on managing your SMSF.

When legislation for the proposed new tax on people with more than $3 million in super (known as “Division 296 tax”) was first introduced to Parliament, it was referred off to a Senate Committee. That Committee reported back last Friday (May 10) with a majority recommendation to pass it unaltered.

The Government made no mention of it in this week’s Federal Budget other than to set aside some money to help implement it for members of the Commonwealth defined benefit schemes – perhaps they felt there was nothing more to say.

The Greens are mounting a final effort to get the Government to take even more drastic action (their dissenting report from the Senate Committee) but it remains to be seen whether they would risk derailing the measure altogether to secure their extra changes.

To be honest, this all sounds to me like Division 296 tax is coming whether we like it or not.

So, what should those impacted be doing right now?

Don’t necessarily withdraw large amounts immediately

First, don’t overreact. There will be plenty of people impacted by this change who shouldn’t immediately pull large amounts out of super. (And remember, not everyone has that choice anyway. Anyone who’s not yet old enough to take money out of super doesn’t get a free pass to do so just because of this new tax. The current legislation only allows people to take money out prematurely to actually pay the tax, not to avoid it.)

Here are just some examples of people who should think on it before taking large amounts out now.

One group is members of funds where the assets have already built up very large capital gains. Remember Division 296 tax looks forward – it will tax future gains (after 1 July 2025), not capital gains that have built up already. In fact, the only thing that will trigger tax on capital gains built up already is actually selling the asset to transfer the money out of super!

Another is group is members whose funds generate most of their return as income rather than growth. Division 296 tax will certainly mean that income is taxed more. But not necessarily as much as if the same amount was invested outside super.

Even those who do decide to move wealth out of super should remember they have some time up their sleeve. If it’s legislated as planned, the measure won’t start until 1 July 2025. And in fact, someone planning to remove a lot of money from super to take their balance down to less than $3m actually has until 30 June 2026 to do so.

That’s because the tax is only paid on a proportion of the member’s super fund “earnings” each year (eg during 2025/26 for the first year). The proportion for 2025/26 is nil% for anyone with less than $3 million at 30 June 2026. It doesn’t matter how high their earnings were during the year or how much they had in super on 29 June 2026 – if they have less than $3 million in super on 30 June 2026 no Division 296 tax will be paid.

And finally remember that there are ways to manage capital gains tax within a super fund for people who have pension accounts. Sometimes, this will mean it’s more attractive to sell assets and withdraw large amounts in July rather than the previous June. This is all about focusing on a completely different tax – the normal capital gains tax paid by the fund itself when assets are sold to make large pay outs. I explained why in a previous article here.

Re-think long term withdrawal strategies

To date, the objective of many people with large balances and significant taxable income outside super has been to leave as much as possible in their SMSF for as long as possible. The ever-present risk for them has always been dying with a large balance remaining and triggering tax for the next generation (ie death benefits tax). It’s why a common decision for the survivor when one member of a couple dies is to move money out of super, particularly if they are already quite elderly.

Division 296 tax just changes the trade-off.

It means many people in this position will find investing inside vs outside super is far closer to being neutral than ever before. In that case, why take the risk with death taxes?

It’s likely that the best option for many people will be a progressive wind down of their super balance over $3 million rather than a “big bang” right now. As their SMSF sells assets, they will choose to transfer extra money out and buy anything new outside of super (in their own name, in a trust or some other structure). They’ll do that even while both members of a couple are alive and so their family unit is insulated from death benefit taxes (because spouses can inherit each other’s super tax free)

Reconsider the right structure for speculative investments

Sadly, Division 296 tax probably means super is no longer the place to hold “blue sky” investments.

It has been up until now.

The fact that these investments often produced no income for an extended period didn’t matter because super is by its very nature a long-term thing. Then, if the investment’s success meant a significant capital gain, there were opportunities to minimise the tax impact for those in pension phase. At worst, the tax rate was effectively only 10% in most cases anyway.

And volatility didn’t matter. Again, super is long term, and the actual size of a member’s super balance only became critical for those hovering around important thresholds (such as the ones that impact their ability to make contributions) or starting a pension (where the balance size impacted the amount of pension payments required during the year). That was something people going into these investments were prepared to live with.

But Division 296 tax will change all that. It will mean members might be taxed simply because these investments increase in value. They expose themselves to significant tax bills that they may not have the cash to pay based on movements in an asset that is by definition unpredictable.

I wonder how this will impact access to private equity funding? Or IPOs?

The same applies to assets we might not have thought of as being highly speculative, but which have three important features: they are long term, most of the return comes from capital growth and they can be volatile. This is why so many have focused on farms – it will be far less attractive to hold these in an SMSF than it has been in the past.

A move to defensive assets for SMSFs?

In fact, bringing all these points together, I wonder if we’re likely to see large SMSFs shift to a more defensive position over time.

The members themselves may still have growth assets but they’re more likely to hold these outside their SMSF because of the Division 296 complications with these assets (ie paying tax on the growth as it happens rather than only once the asset is sold).  The liquid, income-rich, non-volatile investments will be more attractive for SMSFs. I don’t know what this means for investment markets generally, but this doesn’t feel like a great outcome.

Review legacy pensions urgently

It’s no surprise that many people with large balances have been building up their super over many years.  This is also the group most likely to have what are called ‘legacy pensions’ (old style pensions that are much less flexible than modern ones). There are a lot of rules for these pensions that stop their recipients taking money out at will.

Some also come with ‘reserves’. Reserves are a tricky thing – you’ll know if you have them that you’re even more restricted. And Division 296 tax presents even more challenges. If you unwind a legacy pension with reserves in (say) 2025/26 and use that as a trigger to allocate an amount to a member’s super account, the reserves themselves will count as “earnings”. That means they’re potentially subject to Division 296 tax, despite the fact that this isn’t new growth - it’s just an allocation of money that’s already in the SMSF.

Division 296 will definitely present another strong driver to look at legacy pensions now particularly if there are reserves involved.

In fact, the two (legacy pensions and preparing for Division 296) should be considered together. Some people with legacy pensions can find they limit their options if they take large amounts out of super in anticipation of Division 296 tax. That’s because the few chances they do have to wind up their legacy pensions are usually optimised if they have a large amount in super overall. The worst outcome would be to take large amounts out of super and only discover afterwards that doing so limits your choices when it comes to your legacy pension.

It's a shame the Government has taken this particular approach to extracting more tax revenue from wealthier members of the community. I wonder if many would have parted with their hard-earned cash more willingly if they were only paying tax on income their super fund had actually locked in (ie realised capital gains). And I wonder if over the long term, the tax take might have been even higher if the Government had chosen a different path.

 

Meg Heffron is the Managing Director of Heffron SMSF Solutions, a sponsor of Firstlinks. This is general information only and it does not constitute any recommendation or advice. It does not consider any personal circumstances and is based on an understanding of relevant rules and legislation at the time of writing.

For more articles and papers from Heffron, please click here.

 

83 Comments
Alastair
June 03, 2024

Hi, I read your excellent newsletter often. There are some great articles on the impending increased tax on super for balances over $3m. Meg Heffron's articles on what it really means with worked examples are great.

Could I request another that goes further and clarifies

1. Is there DOUBLE tax? - Say there is 15% tax on unrealised gains on assets (say shares and property) above the $3m. (I know it bis the proportion above $3m, but just making it easier to think about). The person manages to pay the tax from the earnings that year, so isn't forced to sell assets to fund the tax. In a subsequent year they sell the assets, is the realised gain taxed again? Or is there a credit as tax has already been paid on the gain in its unrealised form. If not, it's double tax on the gain.

2. If so, one sensible strategy would be to sell all assets in June and buy back in July, such that there is only realised gains and no unrealised gains. Not practical for property, but it would be for shares. That would badly distort the market apart from being ridiculous.

3. Another implication is to distort investment towards income generation rather than capital gains.

I'm sure this topic would gain good readership, especially if it included worked examples. Thank you for considering.

Meg Heffron
June 09, 2024

Great topic for a follow up article - watch this space.

Former Treasury policy maker
June 09, 2024

I suspect the ATO would treat that like they do the practice of "coupon washing" in the bond market. It'd be tax avoidance pure and simple.

Paul
May 28, 2024

I have a question as to what the definition of earnings in the proposed Regulations is. It is clear to me that for TSB > 3m it is the change in TSB over the financial year. Will the change in TSB as earnings also apply to accounts with less than TSB of 3m? In other words, will unrealized capital gains be taxed at 15% in accumulation accounts with a TSB of less than 3m.
This subtle point is not clear in the material I have read.
Any thoughts on this?

George B
May 28, 2024

My understanding is that division 296 tax is triggered when a TSB exceeds $3m, otherwise a fund is only taxed 15% on regular income in the accumulation account. In other words, unrealized capital gains will not be taxed because division 296 will not apply to accounts with a TSB of less than 3m.

Meg Heffron
June 09, 2024

That's correct George - and there are extra checks built in when someone moves from below $3m to above $3m in a given year. That's to ensure that only the earnings above $3m are picked up.

Andrew
May 23, 2024

Thanks for the excellent article Meg. As noted by many this appears to be a clear "$3m is enough in super" tax rather than a genuine attempt to raise revenue by government. Am I right in understanding that this threshold is not indexed. If not 30-something workers should know the $3m is more like $1m when they retire in purchasing power. Seems contra to every drive to save since super was brought in. Also is the Div296 tax a fund or individual tax? In other words, assuming a SMSF with 3 members, one with 50% the others with 25% of the assets, owns land that is set for rezoning. The land is worth $6m at 1 July 2025 then revalued as rezone process continues to $8m 30 June 2026. The 50% holder has a Div296 revaluation of $1m whereas the others remain under $3m. With no other assets will the fund be required to sell the land to pay for the tax or can the fund compel the 50% holder to make a contribution to cover the tax? If the former those with under $3m hold equal obligation to fund the tax and are also losing future potential capital gains assuming the land continues to be revalued upwards as rezoning process is finalised?

Meg Heffron
May 24, 2024

Hi Andrew

1. You're correct - the $3m is NOT indexed under the legislation currently before Parliament. Having said that, the way the legislation has been drafted it would be very easy to change that (perhaps this is the optimist in me)
2. Div 296 is a personal tax - so the liability initially rests with the member. However they have the right to elect to have it paid from their super fund. If they do, the fund has to find the money (the fund will get a "release authority" which is basically an instruction to pay money to the ATO that must be complied with). So in your example, I guess technically the SMSF will need to sell the asset (they can't force the member to make a contribution). Hopefully in that situation the member wouldn't elect to pay it from the fund. As a trustee themselves, they will be equally responsible for not complying with the release authority.

DC
May 21, 2024

Good article Meg. Yes the integrity of the super and tax system is being compromised and WILL NOT result in the revenue grab from this tiny subset of typically more sophisticated (and advised) SMFS. In terms of your final comment (per below) YES. Tax the post-retirement given the demographic shift as most with Age Pension entitlements will NOT be impacted by $1. "I wonder if many would have parted with their hard-earned cash more willingly if they were only paying tax on income their super fund had actually locked in (ie realised capital gains). And I wonder if over the long term, the tax take might have been even higher if the Government had chosen a different path." Just wonder if Coalition will reverse the "non realised" aspect if re-elected or prove to be gutless and just politically "vote" driven ?

Disgruntled
May 22, 2024

The integrity of the Superannuation System was destroyed with the removal of the RBL's and the allowing of million dollar deposits to Superannuation Accounts, turning Superannuation into a wealth creation tool instead of a retirement tool to help fund or part fund ones retirement.

Dudley
May 22, 2024

The integrity of the 'Retirement Funding System' was ruined by the introduction of the 'Compulsory Superannuation Scheme' combined with failure to abolish 'Imaginary [Inflationary] Gains Taxes'.

Jon Kalkman
May 23, 2024

The removal of the RBLs actually coincided with the cap on million dollar deposits into super. Costello removed RBLS and also stopped unlimited non-concessional contributions (million-dollar deposits) that existed prior to 2007. He allowed a cap of $1 million for one more year (in response to the outcry) but since then, these contributions have been extremely limited. That cap increases to $120,000 from 1July. It is now very difficult to accumulate a multi-million super fund.
Once inside super, those millions then became tax-free pensions from 2007. The Morrison Transfer Balance Cap of 2017 limited that pension tax concession but those million dollar funds remain inside super and remain concessionally taxed.
It is those millions that is the subject of this tax.

Eugénie
May 21, 2024

How would the tax work if you have $5m, split half in pension payment mode, and half in accumulation?
Great Article, Meg, many thanks

George B
May 21, 2024

My understanding is that the % split between pension/accumulation mode does not matter, so even if the $5m was 100% in pension mode (due to high capital growth for example) the over $3m super tax will still apply to the amount over $3m.

Meg Heffron
May 22, 2024

Correct George - while that split is important for the tax paid by the fund itself, it's not relevant for Div 296.

Tom
May 21, 2024

Hi Meg
Excellent article thanks. I share your concern "I wonder how this will impact access to private equity funding? Or IPOs?"; if a SMSF has invested to buy shares in a start-up that has a private ruling as a complying Early Stage Investment Company (ESIC), will any capital gains remain exempt (subject to ESIC rules) as a carve out to the application of Div 296?

Meg Heffron
May 22, 2024

Hi Tom, I have no idea what the ESIC rules actually are, my apologies.

But I do know that regardless of any exemptions a fund might have on the tax it pays on an investment, it still needs to value a member's account. I would assume that would include the full value of the investment which will naturally pick up growth. Hence unless there is something introduced to specifically stop this happening, I think you'd pay Div 296 on the relevant % of that growth under Div 296. Once again, all this happens because Div 296 completely ignores actual taxable income and taxes a proportion of "growth".

tom
May 21, 2024

Hi Meg the best way to describe this tax is soverign theft. What next? Unrealised capital gains tax on commercial and residential property How about the share market,that too. What is this all about? The labor party hates SMSF's and are out to ensure no one can retire independent of the labor & Liberal government clowns. Remember it was Morrison as treasurer under turn coat Turnball that put the 1.6 Million cap on a tax free retirement. What we have now is a super dooper scam to ensure no one will eventually avoid not having to rely on government handouts.

Puzzled
May 21, 2024

Hi Meg, thank you for a great article. There seems to be some confusion around how quickly one must take action if they are motivated to not pay Division 296 tax whether it is before 30 June 2025 or 30 June 2026.

Reading the proposed Bill, 296-35 (1), one has taxable super earnings if the person's TSB is more than $ 3 million AND their super earnings are greater than nil. So if we have a situation where a person's TSB is less than $3 million on 30 June 2026 but their superannuation earnings are >$0, wouldn't they have taxable super earnings?

For most people who are looking to reduce TSB on 30 June 2026, they are going to do it through pension payments and lump sum withdrawals. So for simplicity, if we say that an individual has $4 million TSB on 30 June 2025 and makes a benefit payment of $1.2 million sometime in 25-26 with a TSB of 2.99 million on 30 June 2026, are they subject to Division 296?

A read of 296-35 (2) would suggest no as the formula would be a negative amount but in the above case, they actually had $199,000 in earnings and it's that the withdrawal of $1.2 million got them underneath the $3 million threshold. If we were to use adjusted TSB, then their earnings are $199,000. That said, the starting position seems to be wanting to capture the proportion of TSB over $3 million so if that proportion is nil, then seemingly, there should be no Division 296 tax irrespective of how we got there, be it through benefit payments or negative investment earnings.

Example 1.6 in the EM (the Jamal example) starts to throw phrases of adjusted TSB but the example in the EM was where the TSB had gone down below $3 million on 30 June 2026 purely because of negative investment earnings (there was no adjustments to TSB) so I am unsure whether Division 296 tax applies in the above situation?

Thank you

Meg Heffron
May 22, 2024

Hi Puzzled - the key here is that yes, the person in your first example (earnings > nil despite ending the year below $3m) WOULD have taxable earnings. However, the tax they would actually pay on those taxable earnings would depend on their balance at 30 June 2026. If this is < $3m it will be nil. That's because the tax bill is:

15% x 0% (the proportion of their super over $3m) x taxable earnings.

Taxable earnings in this example could be millions but there would still be no tax to pay if their balance was less than $3m at 30 June 2026.

Bruce
May 20, 2024

Dear Meg
Thank you for all your wise counsel on what for many retirees is a difficult subject.
While 30 June 2026 is two years away many of us will have to consider whether it is best to reduce our TSB to less than $3 million each year or pay the new tax on gains + withdrawals.
To help me with this could you please explain what is included in ‘withdrawals’?
My super has three components. A defined benefit pension with a nominal balance of $1 million that pays a pension of about $80,000 taxed at my marginal rate (37%).
A pension account with an industry super fund with a balance of $1.5 million that pays a tax free pension of $75,000/year.
A SMSF accumulation account with a balance of $1.5 million that earns about $120,000/year.
My wife who migrated to Australia has very little superannuation. Unfortunately the new Bill makes no provision to transfer half my balances to her unless we divorce.
My question is: Are the payments I receive from my Defined Benefit Fund and my Industry pension account included in the withdrawal amount? Or is the withdrawal amount only the sum I withdraw from my accumulation account?

Ralph
May 20, 2024

Depending upon your age and your wife's age it may be advantageous to withdraw a sum from your accumulation account and contribute it to your wife's super.
You amy be able to contribute $110K befor 30 June 2024 and $330K next year to your wife which wont eliminate your problem but might make it less painful.

James
May 20, 2024

Divorce your wife very amicably, equitably split the super, then remarry her!

Bruce
May 20, 2024

Hi Ralph
My main question is to know what constitutes a ‘withdrawal’. Does it include pension payments or just funds taken from an accumulation account?

Regarding divorcing my wife the point I am making is that the Bill is unfair to those couples where most of the super is held by one partner.

Has anyone discussed the option of moving overseas to avoid this change?

Bruce
May 20, 2024

I think I have finally worked it out.
Please tell me if I am wrong.

If on 30 June 2026 my total TSB (both pension and accumulation accounts) was $4 million and I had received pension payments and made withdrawals of $400k I would have to pay an extra 15% tax on the amount above $3 million. i.e. $210,000.
If during the following financial year I withdrew all the income and capital gains from my funds so that my balance at 30 June 2027 was still $4 million I would only have to pay extra tax if my withdrawals/pension payments exceeded $400k. In which case I would only pay extra tax on the amount over $400k and my base amount for following years would increase to the new value.
Is my understanding correct?

Meg Heffron
May 21, 2024

Hi Bruce, I might put some numbers around that to make it easier.

First off - you've correctly picked up that we look at all of your super interests for this purpose. And "withdrawals" = any payments you take out of super (both pensions and lump sums from your pension accounts and lump sums from your accumulation account).

So let's say your total super balance was (say) $4m at 30 June 2025 and also $4m at 30 June 2026. During the year you withdrew $400,000 (pension payments + lump sums as above). Your "earnings" for Div 296 tax would be $400k. That's because.. your $4m super balance must actually have grown during the year for it to end up back at $4m despite your $400k in withdrawals.

In terms of how much of this would be taxed, it's only 25% (because only 25% of your super is over $3m)
So the tax bill would be : 15% x 25% x $400k = $15k.

The only way for you to avoid Div 296 tax would be to either:
- reduce your super below $3m and keep it there, or
- have super that never gets any earnings. Just making withdrawals each year to keep it at the same level ($4m in your case) won't be enough - as you can see from the calculations above, that still resulted in a tax bill.

The one thing I would highlight is that if you move $1m out of super to get down to $3m to avoid Div 296 tax, you will inevitably invest that $1m 'somewhere'. That will generate income - perhaps in your own name or another structure. Tax on that, at 37% could well exceed the 15% tax in your super fund + Div 296 tax. It will depend on how the money is invested, where the return comes from (income v growth), and other factors.

Jerry
May 19, 2024

Once again - a great article Meg - I like to read all your articles. On another point what of those of us who have assets over $3m that are under preservation age and thus are still in accumulation phase ? I understand our options are far more limited but we must still have some. Broadly speaking what are our best options going forward.

Specifically Should we be selling assets to take advantage of CGT discount available on those assets before 1 July 2025 as we will lose the rights to that CGT discount after that date ?

Disgruntled
May 19, 2024

I'm 56 1/2 and still rent but have a high balance super account. The tax will come in before I'm 60, November 2027. I am intending to withdraw a large portion to buy a property when I can access the funds when I retire at 60.

Would be nice if I could access the amounts of $3M before tax comes in.

Meg Heffron
May 19, 2024

Hi Jerry - thanks for your comments on my articles.

Selling assets before 1 July 2025 won't necessarily help with this tax. The CGT discount is something your FUND gets when it sells assets and that will continue beyond 1 July 2025 no matter how large the fund is or how much the members' balances are. Div 296 is an entirely separate tax on top of the normal tax your fund pays.

Unfortunately the only way to avoid it is to either :
- make sure your super balance is less than $3m (which you can't do), or
- have a super balance that doesn't grow much (because Div 296 is levied on some of the subsequent growth in your balance after 1 July 2025).

Personally, if this was me, I'd rather my super balance continued to grow even if it meant paying Div 296 tax. It's also worth noting that even if you COULD take the money out of super and invest it elsewhere (say in your own name or in a family trust), you'd have to pay tax there too. You might in fact pay even more tax on it over time than you would if you left it in super and just copped the Division 296 tax. I've done a lot of modelling on this. My broad conclusions are that while Division 296 definitely makes super less attractive than it is now, it doesn't always make super less attractive than the ALTERNATIVES. These would include things like investing in your own name. That's why not everyone impacted by this tax will rush to take the money out of super anyway - they will first compare super (with Div 296 tax) to the tax treatment that would apply if they invested the money somewhere else.

Disgruntled
May 20, 2024

Meg, I'd buy a PPoR. Which I had intended to do with some of my Super anyway. As others have mentioned, Super is a long term thing and we invested based on a set of rules. Those rules keep changing. I'd be retired now but for rule changes that have occurred to Superannuation.

Michael M
May 19, 2024

A very useful article - thank you. Can you give some information on the treatment of defined benefit pensions under the proposed new system please. If you have a defined benefit pension as well as an accumulation super account, how is the $3m amount determined? I assume it is the accumulation account value plus a multiple of the defined pension? If so, where do I find what the multiple is?

This whole thing is just overly confusing and complex….

Meg Heffron
May 19, 2024

Hi Michael, conceptually you're right - I'm assuming the defined benefit you're thinking of is a pension? In that case, the defined benefit pension will normally be valued in the same way as it would be if you were getting divorced and coming up with a value for your property settlement. This is a formula which is - broadly speaking - a multiple of your pension amount (sometimes with variations). The multiple depends on things like : your age and the features of the pension such as : would it normally continue to a spouse, does it get increased each year etc. So there's no single multiple, there are various tables setting out different mutiples for different scenarios. And for some funds, there are specific variations. Your fund should be able to refer you to the right table of multiples for you but bear in mind they probably don't have the systems in place to do that yet. If it's an SMSF, I'd refer you to your accountant but again, remember this is all pretty new and so lots of accountants wouldn't be across this yet.

Paul
May 19, 2024

I am trying to work out the effect of the new 15% tax on super balances over 3 million.
From information
It does not start till 1 July 2025
The amount over 3 million will be deemed to earn an income
That income will be taxed at an extra 15%

would this mean
700,000 over would be deemed at 2.5% to earn 17500
taxed at 15% =2635 extra tax
=0.375% extra tax on capital

Meg Heffron
May 19, 2024

Hi Paul, the amount of income won't be a deemed rate. Rather, it will be the amount by which a member's super balance increases during the year. If your super balance grew from $3.7m to $4m and you made no contributions and didn't take out any payments, all of that growth would be "earnings" for Division 296 tax. Only a % of those earnings would be taxed (in this example, 25% since the 25% of the $4m balance at the end of the year is over $3m). The Div 296 tax would therefore be:

15% x 25% x $300,000 = $11,250

Paul
May 24, 2024

Thanks Meg
Much clearer now. I reach pension age in October.
Will gift some to my son to help buy his first house and keep totals at 3m or below
Super balance stays at 3m (1.9 pension 1.1 accumulation) or below
earning and withdrawals estimated at @ 8% (10 yr average return) $240k p.a.
0% of the earnings would be taxed since 0% of the balance at year end is over $3m
Bit of change from the disability pension i am now on

Jim
May 18, 2024

Hi Meg. Re Lyn's question about a person with $1.8m in pension phase who receives a death benefit pension of S1.5m from their late partner. Is there a rule under the transfer balance cap laws that prevents a person from holding more than their personal TCB in pension phase? EG: if the surviving beneficiary has a personal TCB of $1.9m, and their transfer balance account is $1.7m, then I believe they can only add another $200k as a pension, and the balance of the $1.5m must be cashed out of super. No issues with division 296. Is this correct?

Meg Heffron
May 19, 2024

Hi Jim, it is correct but what a lot of people do in this position (when they inherit super from a spouse) is switch off their own pension. That will give them some of their transfer balance cap back. For example, imagine the surviving spouse started a pension way back in 2021 with $1.7m (and so used all their cap at the time). They've only ever taken the minimum pension required and their pension account is now $1.8m.

Assuming their pension allows it (ie, it's a modern day account-based pension rather than an older inflexible pension), they can "switch off" as much or as little of their own pension at any time and put this amount back into their accumulation account. If they do so, they get some of their transfer balance cap "back". Let's say they chose to "switch off" $1.5m (leaving only $300k in their pension account). The ATO's records will be updated to show that now they've only used $200k of their transfer balance cap (the $1.7m they used back in 2021 less the $1.5m they're switching off now).

This gives them scope to inherit a $1.5m from a spouse without going over their transfer balance cap (they'll be back up to $1.7m). (Notice I didn't update this to $1.9m even though the cap is higher these days? It's because once you use all of your cap, you don't get any further increases even when the general cap goes up).

The reason people go through this process is because switching off some of their own pension allows them to leave the money in super - you're allowed to leave your own super sitting in an accumulation account for as long as you like but you can't do that with super you inherit. As you pointed out, it has to be turned into a pension or cashed out of super entirely.

Barry
May 18, 2024

Superannuation is a long-term investment. Because you are locked into the super system for over 40 years during your working life and you can't pull your money out for 40+ years, people have been making decisions based on this 40-year lock-in period. Now this new tax changes the rules mid-journey. These changes haven't been grandfathered for people already in the system. It affects younger people already in the system who have been playing by the rules for 20 years and are only halfway through their 40-year superannuation journey. It basically traps younger people into this new tax if they have over $3 million and they don't have any way to escape the tax, unlike the boomers who can withdraw all their super on a whim after the age of 60.
So it's a very unfair intergenerational tax that discriminates based on their age. How is that equitable?

James
May 19, 2024

"So it's a very unfair intergenerational tax that discriminates based on their age. How is that equitable? Ah, an idealist! Hope for the best, but prepare, defend and bunker down because it's almost guaranteed; any "change" will not benefit you!!

George B
May 19, 2024

"unlike the boomers who can withdraw all their super on a whim after the age of 60"
One problem with this proposal is that you may be jumping out of the frying pan into the fire-not many investment options outside super that will be taxed less particularly if you already have taxable income outside of super.

Jill
May 18, 2024

Meg, I thought the industry funds would not be affected by the Division 296 tax due to the difficulty in calculating each person's current assets...? This, of course, is not a problem for SMSF funds which have to report all pertinent information to the ATO at the end of every financial year. Is this tax not simply an attack on SMSFs?
Thank you for your very detailed articles - always a great read.

Meg Heffron
May 19, 2024

Jill all funds will face the same rules for Div 296. In all cases, the tax is based on movements in the member's "total super balance". In an industry fund, this is basically the amount that appears on their member statement. The tax is then based entirely on movements in that super balance. It doesn't really matter what is happening to the assets underneath, all that matters is what the fund calculates the member's super balance to be.

In fact, I'd say the mess we're in with Div 296 is because the Govt wanted to make life easy for industry funds. Those funds are already perfectly capable of reporting a member's total super balance and so this tax is easy to comply with - the ATO will just take the difference between total super balance at the start and end of the year (and adjust for contributions and withdrawals). What many people have argued is that it would be more appropriate to get funds to report the share of the fund's actual taxable income for each member so that the tax could be levied on that (which would include realised gains but not unrealised gains). Unfortunately, this is something SMSFs could do easily but not industry funds.

Simon
May 18, 2024

Yep, the government, aided by the Greens, will significantly change SMSF investor behavior to focus on high income (and franking credit) stocks, rather than growth stocks with a risk of significant unrealized gains. Companies will be encouraged to pay out more in dividends rather than invest in expansion. Just bad for the nation. Pity those small innovative companies in tech or biotech, trying to raise capital. Even small miners. Oh, but I forgot. In the budget, the cardigan wearers in Canberra will be picking the best venture capital ideas to invest our taxes in. Phew.

Ben D
May 17, 2024

Hello,
Seeking understanding of how the TSB calculation is made over multiple years for defined benefit pensions please

I.e. Year 1: Defined benefit pension of $170k p.a X (example) family law factor of 18. Value $3.06m. $170k paid out in benefit is added to value, for TSB Year 1 of $3.23m. So pay Div296 on proportion above $3m.

In year 2, assume the defined benefit value is similar (noting the valuation factor reduces slightly due age & pension increases IAW indexation). Valuation of $175 X 18.9factor = $3132.5m. Plus $175k = TSB $3.3075m.

Is year 2 calc broadly correct, or does the TSB start at a higher value, due to the 'benefit' paid in year1?

Thanks!

Meg Heffron
May 18, 2024

Hi Ben that methodology is broadly right (I'm assuming you meant a 17.9 factor rather than 18.9 in year 2)? The TSB in year 2 would actually be $3.1325m (ie, only a v small proportion over $3m). The Adjusted TSB amount you've calculated there ($3.307m) would only be used to calculate the earnings ($3.307m - $3.06m). Both the factor and the annual pension amount would be "whatever it is" at the time of the calculation (30 June each year). So if it's indexed from $170 to $175 in December 2025, the lower amount will be used for the calc at 30 June 2025.

Ben D
May 19, 2024

Thankyou Meg. Appreciate the response. Great to finally achieve and confirm a broad understanding of the tax impact. Agree factor meant to be 17.9 yr2. Regards

Meg Heffron
May 17, 2024

I've had a number of questions about the mechanics of how Division 296 is supposed to work (if legislated as planned). I will keep answering as many as I can but did want to flag that we wrote a guide on this recently. Anyone is welcome to request a copy of this via the contact us form on our website (https://www.heffron.com.au/)

Abel
May 17, 2024

Hi Meg
Thanks for your reply to the question about balances in pension accounts (couldn't reply to that post). Read your news article in https://www.heffron.com.au/news/division-296-and-defined-benefits about how the balances of defined benefit pensions will be calculated for Div 296 purposes. Would a similar calculation apply to annuities or will it be based on the "purchase" capital?

Meg Heffron
May 17, 2024

Good question Abel - I honestly don't know off the top of my head.

Peter Goerman
May 19, 2024

I could not find the report on your website. Please help.

Malcolm
May 17, 2024

Meg A couple of questions for clarification. 1. Am I right in my assumption that the 33% super discount does not apply to the unrealised capital gains on assets held for more than 12 months? 2. When those assets are subsequently sold for a realise capital gain, is the CGT already paid on the unrealised capital gains on an asset taken into account in determining the CGT liability?

Meg Heffron
May 17, 2024

Hi Malcolm, they key to understanding this tax is to completely divorce it from the tax you know is already being paid in the super fund. That's because they are managed entirely separately. So, within the super fund, as you know you only pay tax on realised capital gains and you get a 33% discount for assets held for more than 12 months. And you even get a % of this exempt from tax entirely if you have a pension in the fund. But when it comes to Division 296, the rules simply look at how much your account has gone up by (adjusting for contributions, withdrawals). There's no special treatment for capital gains such as discounting there - it's just the growth in the account. Your account might grow for many reasons - income (rent, dividends, interest) or simply growth in your assets. And of course there are some amounts that will hold back that growth (for example, expenses, taxes paid by the fund). Division 296 tax just taxes a proportion of the whole increase no matter where it comes from.

Lyn
May 17, 2024

Meg, always interesting. If non-lapsing BDN of 1 partner in fund left BDN for their pension to be paid as pension to surviving partner & surviving partner has $1.8 mill in pension phase & $1.5mill of deceased partner's paying a BDN pension from same fund, will the $1.5mill be added in for new tax above $3mill in that fund?
Begs the question if a couple has superannuation in different funds and a BDN as above and same figures, would the BDN capital be attributed to the surviving partner for taxing over the 3mill as the surviving partner doesn't ever 'own' the capital and can make no choices about the capital, just gets pension ascribed to it from the deceased's fund. Perhaps that's how will be, SMSF or not.

Meg Heffron
May 17, 2024

Hi Lyn it will be the same whether the fund is an SMSF or not. In both cases, the important thing is whether a person's "total super balance" is more than $3m. If you inherit a spouse's super as a pension, that balance gets added to your own super. So in your example, the surviving spouse would have $3.3m. A couple of points to note though. When "earnings" for the year gets calculated (remember, this is amount on which tax is actually calculated), the inheritance itself is not counted as earnings (it's treated like a contribution). There are also special rules that apply in the first year someone crosses over $3m (they effectively make sure you don't pay tax on the amounts that took you up to $3m, only the earnings that took you over that threshold). But if you look at what will happen in future years, yes, that person is now considered to have a $3.3m super balance no matter what fund it's in (and even if it's split across two different funds). So when their super goes up the following year, a proportion of all that growth will be taxed.

Lyn
May 18, 2024

Meg, Thank you for explanation. L

Malcolm
May 17, 2024

Meg can you explain how unrealised capital losses are treated in the tax calculations. In a particular FY are they offset against the unrealised capital gains? If the final outcome in a FY is an overall unrealised capital loss for the FY, does the loss get carried forward to the next FY?

Meg Heffron
May 17, 2024

Division 296 tax is charged on movements in a member's super balance (adjusting for movements caused by the member themselves such as withdrawals and contributions). So basically the tax will be paid on a proportion of "anything else" that makes their balance go up (interest, rent, dividends, and growth etc). Unrealised gains are therefore caught simply because growth in the fund's assets will flow through to an increase in the member's balance. Sometimes this amount is negative. For example, the fund might earn a bit in interest, rent, dividends etc but the assets drop in value so the end position is that "investment earnings" have gone backwards. In this case, the member will have a loss to carry forward for Div 296 purposes. That loss doesn't give them a refund, it just allows them to use it to reduce future Div 296 taxes. Notice how in all of this, I'm just talking about "investment earnings" in aggregate rather than capital gains / losses in particular? That's because this tax doesn't distinguish between capital gains / losses and other types of income. So you could find, for example, that a fund has a loss in one year (caused by its investments going backwards) and the asset never recovers in value. But in the subsequent years, the member's balance does go back up a bit because of all the income the fund is receiving (interest, rent, dividends etc). For Div 296 purposes, the member will be able to use the loss carried forward from the first year to reduce (or even negate entirely) the Div 296 that would ordinarily be paid on these subsequent earnings.

Narinder Elhence
May 19, 2024

Hi Meg
It will be good to do a write up on how industry super funds will be impacted for those not running a SMSF?

Kelly
May 16, 2024

I'm confused about the timing of all this. As I understand it, your super is valued at 1 July 2025 and if it is over $3m at that date, the change in value between July 2025 and June 2026 is used to calculate the 'earnings' that are taxed. From what I've read in the past, those 'earnings' also include any withdrawals you make during the year. (and it's all done proportionately for the bit above $3m and the bit below $3m). So you can't make a withdrawal after 30 June 2025 as a strategy to keep the balance below $3m as that withdrawal is proportionately included as part of your 'earnings'. Yet the above article says " If it’s legislated as planned, the measure won’t start until 1 July 2025. And in fact, someone planning to remove a lot of money from super to take their balance down to less than $3m actually has until 30 June 2026 to do so." So, if we want to avoid this horrible tax on unrealized gains... do we need to reduce the super balance before 30 June 2025? Or before 30 June 2026?

Meg Heffron
May 17, 2024

Kelly this is a REALLY common misunderstanding because your point about how earnings is calculated is exactly right. Withdrawals during 2025/26 will be added back in the earnings calculation so you can't "beat the formula" by taking a large withdrawal right at the end of the year. But the thing people often forget is that there are two parts to this:
- calculating the earnings. As above, you can't make this smaller by taking a large withdrawal at the end of the year
- working out the % of the earnings that will be taxed. But a large withdrawal DOES impact this.
My point above is that if your large withdrawal takes your super balance down to < $3m at 30 June 2026, it actually doesn't matter what your earnings calculation looks like. The earnings amount might be huge. But the % to be taxed will be calculated exclusively using your 30 June 2026 balance. If your balance is < $3m at 30 June 2026, the proportion is nil%. So a huge earnings amount but no tax to pay on it.

Kelly
May 17, 2024

Thank you ever so much for taking the time to reply. But I'm still struggling to grasp this timing issue. Would you consider writing an article on the topic in the near future? That could certainly help clear up what you say is a REALLY common misunderstanding.

George
May 19, 2024

I agree with you Kelly. I am still struggling with Meg’s explanation to your query. My understanding is the same as yours in that the withdrawals will be added back and therefore we will be paying the excess tax for the 25/26 year. Maybe we are missing something.
Would be interested if anyone else out there can assist. Thanks

Ramani
May 16, 2024

Excellent analysis, resonating with the familair feeling of our flood and fire prone mates: the 'unprecedented' disasters are back.
Tax is an alternative universe. The thought bubble in Labor is now ballooning into a work tsunami for the ATO. Keynesian economists economical with the truth would marvel at their ability to create unproductive work (dig a hole and refill it, repeating ad infinitum for full employment - ad nauseum. Parkinson's laws at work.

Because any excess over the $3 million can (under current rules) be retained as accumulation taxed around 30% relative to higher marginal rates on non-super income, it doesn't make sense to withdraw excess into non-super.

Apart from the useful tips Meg has given, I would caution those yet to retire not to be put off in building up their nest eggs. Rules will change; as will the economy and personal circumstances. Creating options to be exercised in future remains prudent.

Kerrie Sheehan
May 16, 2024

Good no one should have more than $3 million in super unless they are using it to save tax rather than provide for their retirement.

George B
May 19, 2024

Many that have more than $3m inside super got there by making large non-concessional,ie.after tax contributions, meaning that at the highest marginal rate, they paid $1 tax on every $1 contributed-you would hardy call that saving on tax!

OJ
May 16, 2024

Good article - thanks.
1. Anyone care to comment on possible outcomes if Coalition wins next federal election? If coalition wins, presumably they could stop the whole change, or just stop tax being applied to unrealized capital gains ( the most unfair aspect of these proposals) . My recollection is that Coalition is opposed.
2. I'll also be approaching a funds manager to see what the options are for a group of private citizens to fund a campaign against these proposals and possibly against Labour/Greens in general. eg 5,000 x $2,000 = $10m fighting fund!

Meg Heffron
May 17, 2024

The Coalition is opposed and the relevant Bill has been debated in the House of Reps in the last few days with the Coalition moving to just remove these sections of the Bill (it covers things other than Div 296). Whether they would repeal it if they came to office after it was legislated is another thing - it would be harder to do I assume as I expect they'd need to explain where they'd replace the tax revenue.

Disgruntled
May 17, 2024

They should push for those under preservation age to be allowed to take amounts over $3M if they choose to.

By imposing these new taxes, the government are effectively saying $3M is enough Super.

Lawson
May 16, 2024

Hi Meg,
I am considering taking my "Over $3m" balance out of super as a lump sum..Q.Can this be done as a transfer rather than a sale and at what cost base is used ?

Meg Heffron
May 17, 2024

If you're old enough to take money out whenever you like, then you can transfer assets "in specie" (in kind) as a lump sum benefit payment (not a pension). If you have > $3m, I assume you have a large accumulation account so it would come from this. The transfer would have to take place at market value. The tax treatment in the super fund is exactly as if you'd sold the asset - capital gains tax applies in the usual way and the cost base would be whatever it would be if the asset was sold. Once you've transferred the asset to its new home (say your own name, a family trust etc), the new cost base in THAT entity would be the value you transferred it at (ie current market value) rather than the original purchase price. One thing to bear in mind is that if your fund has pensions, part of this capital gain will be exempt from tax. Even though it feels like you're transferring "the bit over $3m which is all in my accumulation account", tax law kind of ignores this and just calculates tax on the capital gain as if a proportion of that asset belonged to your pension account. This is where timing can be important - as per the older article I linked to in this one above.

Lawson
May 17, 2024

Thanks Meg......Very helpful as always

Abel
May 16, 2024

I haven't found any details on how annuities will be taxed. Also, most seem to imply that this affects only funds in accumulation accounts as the TBC is below 3M. But looking forward 5+ years and if inflation remains high (with growth assets rising as well) and there is no adjustment to the 3M threshold, I would expect that some pension accounts may also be over the limit.

Simon
May 16, 2024

Yes, what happens if a pension account grows with time to over $3M. Is the proportion above now taxed and at what rate? A 15% excess rate or a 30% rate?

Meg Heffron
May 17, 2024

If the current legislation is passed, the way it will work is as follows:
- within the super fund itself, same treatment as we have now. That means - if the pension has grown to (say) $4m and the member has $1m in accumulation phase (assume no other members in the fund), the actuary will calculate the % of the fund's investment income that is exempt from tax each year. In this fund, it would be around 80% (since $4m out of $5m or 80% of the fund is in pension phase). The fund will pay tax at 15% on the remaining 20% of its investment income (including discounted capital gains).
- quite separately, the ATO will work out the member's tax under Division 296. For this purpose, they'd work out earnings as the $ growth in the member's super during the year (let's say that was $200k). The ATO would then work out how much of that is subject to Div 296 - in this case, 40% (because $2m of the member's $5m balance is over $3m). So there would be a - quite separate - tax of 15% on 40% x $200k (ie, $12k). This tax bill would go to the member. They could choose whether or not they paid it out of the fund or paid it personally.

In this particular case, the fund is still getting the benefit of having $4m in a pension (ie earnings on a lot of its income are exempt from tax).

Jon Kalkman
May 16, 2024

From Meg’s analysis it is clear that the purpose and effect of this new tax is to encourage, or strongly encourage, people to remove excess assets from super. It is not a huge tax take from super. And money withdrawn from super and invested in a range of assets elsewhere will increase the tax take, but will be much more difficult to quantify. It’s now clear why this initiative came from the industry super funds. Firstly they have few members affected. Secondly, they hate SMSFs for the fees they are denied. Thirdly, and most important, as these SMSFs with large balances decline over time, the tax concessions that flow to super overall also decline and that will almost eliminate the bleating of ignorant “experts” calling for increases in taxes on super pensions. Any increases in taxes on more modest super balances will most definitely impact industry superfunds and therefore the stellar returns they claim. This new tax effectively sets a new Reasonable Benefits Limit (RBL) on the concessionally taxed assets required for a comfortable retirement, and is much easier to defend than some of the multi-million dollar SMSFs.

Rob
May 16, 2024

Impacted. Critically you need to model various outcomes. The way this new "wealth tax" works is NOT an extra 15% for the vast majority of those accounts over $3m - it is the "proportion" over that is the critical number so understand the formula!

My other observation is that anything volatile probably needs to move out of Super to avoid the possibility of a stock that "soars", is "taxed" and then "tanks"

James Maxwell
May 16, 2024

Whole thing is absolutely disgraceful! Tax on unrealised earnings is absurd!

Are there any chances of this being repealed if Labour are (hopefully) kicked out at the next or future election(s)?

Michael
May 16, 2024

I agree James. On a smaller scale Local Government Rates are a tax on unimproved land value (NSW) that is subject to regular land valuations. An increase in land value also results in increased taxes on unrealised gains.

MK
May 16, 2024

Zero chance given the Greens and Teals in the Senate

adam
May 19, 2024

Yes, James .totally ridiculous, and don't forget you still pay full CGT when you actual sell the investment. It's a double tax!!
It's going to discourage young people from investing in a previous great tax advantaged structure due to uncertainty and changing rules.
This means more will have to rely on government pensions which will cost even more money.

Stephen Cox
May 21, 2024

I am at a loss to understand how "young people" have managed to accumulate more than $3M in their super in the first place. I am certain that having the problem of more than $3M in their super is a problem many would be delighted to have, irregardless of their age.

Dudley
May 21, 2024

"how "young people" have managed to accumulate more than $3M in their super":

Return rate 10%, contribution tax rate 15%, concessional cap 30000, non-concessional cap 120000, future value -3000000 (- = invested):
= NPER(10%, (1 - 15%) * 30000 + 120000, 0, -3000000)
= 11.74 y.

Just need $30,000 before tax and $120,000 after tax each year.

James
May 22, 2024

@Stephen Cox: "I am at a loss to understand how "young people" have managed to accumulate more than $3M in their super in the first place"

Property in your SMSF, especially in Sydney will do that! Excess capital growth becomes a liability! I know of several people who thought multiple properties the way to go, and once in pension mode, the capital gains were to be tax free!

 

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