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Meg on SMSFs: Timing and the new super tax

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

Many people spooked by the proposed new tax on super balances over $3 million are contemplating withdrawing large amounts in the next few years before the tax takes effect (2025/26).

My modelling suggests this is actually not a great idea for most people. But the fact remains that some will do it if they are able to (ie they’re over 65 or they’re still between 60 and 65 but have freed up their super by retiring).

Sometimes their SMSFs will sell assets and pay out cash. Other times it will just transfer the actual assets to the members. Either way, capital gains tax comes into play and the tax paid by the fund on these capital gains can be profoundly impacted by how and when the withdrawal happens.

An example

Consider Tarik who is the only member of an SMSF. Throughout 2024/25 his super fund balance is around $7 million ($2 million in pension phase, $5 million in accumulation phase). In June 2025, enough assets are sold to pay out a $4 million benefit to Tarik. In the process, the Fund realises a very large capital gain – to keep the numbers simple, imagine that capital gain is $1 million.

Because Tarik’s SMSF is paying a pension, some of its investment income during 2024/25, including this capital gain, is exempt from tax. His accountant will get a certificate from an actuary to specify the percentage of all the fund’s income in 2024/25 that is exempt from tax. (This percentage is often called the actuarial percentage).

In the normal course of events the actuarial percentage for Tarik’s fund would be around 29% for 2024/25. This is worked out using averages – on average, what proportion of the fund relates to his pension account? In this case, it’s $2 million out of a total balance of $7 million. That’s around 29%. That means only 71% of the capital gain gets taxed.

So when the fund’s accountant works out how much tax should be paid on the $1 million capital gain, the sums look like this:

$1 million capital gain x 2/3 (super funds only pay tax on 2/3rds of the capital gain as long as they’ve held the asset for more than 12 months) x 71% x 15% (the tax rate for a super fund) = $71,000

(As an aside, this is actually one of the reasons it’s often a bad idea to respond to the new tax by taking money out of super. It forces the Fund to realise, and pay tax on, capital gains 'now' rather than in the future. It’s often far better to just leave the assets in super and cop the new tax. But I digress.)

An alternative method

Let’s assume Tarik is committed to taking this money out of super. Would there be a better way of doing it?

Actually there is.

Tarik could wait until July 2025, then sell / transfer the asset(s) very early in the new financial year (2025/26). That would mean the capital gain is taxed in 2025/26 rather than 2024/25.

The reason this is a good thing is that as long as the $4 million Tarik wants to take out of super is withdrawn very early in the year (say July 2025), the actuarial percentage for Tarik’s fund will be much higher in the new financial year.

Again, it’s because actuarial certificates work on averages. The actuary for Tarik’s fund will see that for most of the year, his fund only had $3 million (of which $2 million, or around 67%, was a pension account). That means 67% of all the investment income during 2025/26 will be exempt from tax.

It doesn’t matter that the fund earned a lot of its income right at the start of the year when the proportion of the fund that related to Tarik’s pension was much lower. When it comes to the fund’s tax return, all that matters is the average percentage over the whole year. This will be close to 67% (meaning only 33% of the capital gain gets taxed).

Tarik’s SMSF would therefore pay much less tax on the capital gain:

$1 million x 2/3 x 33% x 15% = $33,000
(a $38,000 saving)

The key is that the money needs to be taken out of the fund quickly once the new year starts – the longer Tarik’s $4 million stays in the fund, the longer the fund will have a very high “accumulation” balance. That will drag down the actuarial percentage and increase the tax bill.

In fact, this isn’t even an 'all or nothing' thing. Let’s imagine Tarik’s fund has some cash available already. While the SMSF needs to sell some assets to pay out the full $4 million, some of it could be paid out earlier. There’s nothing to stop Tarik withdrawing “as much as possible” in late 2024/25 and only delaying the final payment (which requires asset sales) until the new year.

But won’t waiting until July 2025 expose Tarik to the new tax he’s so desperate to avoid?

Not if it’s introduced as currently announced by Treasury. The formula used to work out how much tax Tarik pays depends on what proportion of his balance is over $3 million at 30 June 2026 (not 30 June 2025). If his balance is only $3 million or less at that critical date, there’s no tax to pay. Even if it’s over $3 million but not by much, the amount of tax would be small.

Certainly it’s well worth doing these sums before taking money out of the fund.

 

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.

 

16 Comments
Kelly Buchanan
September 17, 2023

I might be a bit confused here. As I understand from reading several Firstlinks articles a few months ago, your balance is calculated at 30 June 2025 as a starting point. Then any withdrawals made during FY2026 are added back to your balance at 30 June 2026 for purposes of determining whether the fund is worth >$3m at 30 June 2026. Then the new tax is applied to that 'balance' in excess of $3m. So making a big withdrawal early in FY26 defeats the purpose. To prevent the application of the new tax on balances over $3m you should not have a balance over $3m at the start of FY26. I'd love to be wrong on this.

B2
September 18, 2023

You are correct about how the NEW tax of an extra 15% on Super applies from 1 Jul 2025.

However, Meg's article is not about this instead it is about minimising the current earnings tax of 15% on income and capital gains. This current tax is on earnings and realised capital gain only. Whereas the NEW tax is additional to this and includes unrealised CG.

In any case the way to minimise both sets of taxes is as she suggests:
1. withdraw down (before 1 Jul 2025) as close as possible to the $3 m level. Use cash and sell assets with the least capital gain. This final TSB( 30 Jun 2025) is used to calculate the NEW tax applying at 30 Jun 2026.

2. If there is still more than $3m after step 1, then sell the assets holding the larger Capital gains in July 2025 or as close to. Then withdraw the amount so that the TSB is $3m of less. The existing tax calculated on this is as she says the average percentage over the whole year.

3. On 1 Jul 2026 you will pay the NEW tax of 15% on any notional gain as you currently understand it. This is over and above the current system of taxes.

Kelly Buchanan
September 18, 2023

Thank you for going through that with me. Here's where I'm still a bit 'iffy' on the proposed new rules.
I'm under impression that if your balance at 30 June 2025 is just over $3m, and you take out say $1m in FY26, and your balance at 30 June 2026 is say $3.2m (it was a good year!).... then the calculation of the growth in the value of your fund INCLUDES the $1m you took out. So the growth is $3.2m minus $3m plus $1m. So the growth in your fund includes what you've taken out. Ugh, I wish I'd saved those older Firstlinks articles so I could read them again. If anyone can help me grasp this a bit better I'd be most grateful.

Meg Heffron
September 19, 2023

Hi Kelly, actually the proposed new tax (as we currently understand it - remembering there is no legislation yet) is that a "proportion" of "earnings" will be taxed. The "proportion" is actually based on your balance at the end of the year only. So if your balance at 30 June 2026 (not 2025) is under $3m, nil% of your "earnings" will be taxed.
Where the add back process is relevant is in the calculation of the earnings amount itself.
For example, if you start the year with $4m, withdraw $1m and end the year with $3.5m (assuming no contributions are made), your earnings will be :
$3.5m (end of year balance) + $1m (add back withdrawals) - $4m (start of year balance) = $0.5m.
Not all of this amount will be taxed. The "proportion" is :
($3.5m (end of year balance) - $3m (fixed threshold)) / $3.5m = 14.3% (this is basically trying to ascertain what proportion of your balance is over $3m)
In this example the tax paid would be 15% (the tax rate) x 14.3% (the proportion) x $0.5m (the earnings)

Withdrawing a large amount at the end of the year can't trick the "earnings" calculation but it can mean that the "proportion" of this earnings subject to tax is less / nil.

Extending the example above, if the withdrawal above had been a bit bigger (say $1.5m), the earnings would still be $0.5m:
$3m (end of year balance) + $1.5m (add back withdrawals) - $4m (start of year balance)= $0.5m
This time, however, the proportion of those earnings to be taxed would be nil% (because the end of year balance is exactly $3m)

SGN
September 15, 2023

The unprecedented tax on unrealised gains for Super SMSF if passed can creep to other Investments so the issue must be a Consern for all Investors.

Manoj Abichandani
September 14, 2023

Meg

What you are talking about the timing difference - which definately matters in an actuarial conversation. But if you look at this issue objectively you have to look at what happes to the $4M when it is withdrawn early and invested on the other side of SMSF - If the money is pulled out earlier - you earn higher income and in turn pay higher tax outside of SMSF. So I am not sure this strategy has any substantial value unless the modelling is done on a tax rate outside of super.

Secondly and more importantly, I have sold many times and thought that the buyer pays my capital gain tax. In your example - I get $929K profit for my asset from the buyer and he pays $71K to government for my tax on sale. I sleep better with this thought. This CGT tax is similar to stamp duty tax etc which the buyer pays...

Meg Heffron
September 15, 2023

All good points Manoj, the only observations I'd make are:
- don't forget in terms of timing, I'm highlighting the benefits of waiting until (say) July 2025 rather than selling in May / June 2025. That timing can actually make a very substantial difference to the tax paid with very little downside
- I don't necessarily think it's a great idea to pull assets out of super to avoid the new tax. I mentioned this up front because the modelling I've done suggests that it's actually often still going to be beneficial to leave wealth in super despite the new tax. Sounds like you have a similar view? This article is more about "assuming you want to.. and you're thinking of doing it in late 2024/25.. think about timing"

Manoj Abichandani
September 17, 2023

Meg

We both know there are still many unresolved issues in the legislation. Unequal spouse balance is one - where one has $2.0M and the other say $4M and you cannot re-contribute to make it even - only a divorce can solve it or change in rules on contributions after reaching TBC

I want to see how they will deal with a pension which commences with say $1.8 M and balloons to say $3.5M - how can a tax free pension be taxable?
This will impact many other prices of legislation

Also many do not understand that this new tax is proportional and not 15%

I am totally for leaving money in - but change the owners name. If the plan is: $330K X # of kids has to be recontributed back in the fund twice before 2026 then there is no need to sell any asset as $10 K can be recycled 33 times to achieve the same outcome

I am sure your team and other professionals are thinking of other strategies to leave money inside. This means we will get a new law but no new tax will be generated from it.

Perhaps that is the secret intention.

Till a disciple of Paul Keating comes and suggests that we will need more than $3M to be self funded retiree with current CPI growth.

I can only feel sorry for those lining up for Dole as the age will keep moving forward - so the message is clear “Look after yourself- but only till $3M”

B2
September 18, 2023

Money outside super can be in individual or corporate beneficiaries obviously allocated depending on the relative tax scales. Note of course that corporate beneficiaries have the capacity for franking reserves for a future allocation to a descendent. However there is no CGT concession for corporations.

Your second assertion that the buyer pays the CGT requires somewhat greater imagination. Of course a $1m capital gain incurs a CGT however to assert that the buyer pays this is interesting in the least. Some observers may note that the $1m is paid to and in the hands of the seller. Furthermore the tax status of the seller determines the rate of CGT not the buyer. To say that the buyer actually pays the CGT implies that the selling price of the item rises to take into account the sellers tax rate. This is arguable.

Manoj Abichandani
September 18, 2023

B2
Meg used an SMSF situation which has a flat rate of tax - hence it is easy to work out the CGT amount.
The more I think on who pays the CGT - if you peel it to the last layer you will agree that it is the purchaser.

Assume an SMSF with one asset with cost base of $3M more than one year old and Zero cash. If this asset is sold with $1 M profit - the resultant tax will be 10% or $100 K if single retired member is over 60 years and in accumulation to keep matters simple.

The member has simply sold an asset and used the $100K “of the buyer” to pay the tax - vendor had no cash before the sale. After paying the tax the member can withdraw $3.9 M cash - so he gets $900 K of the gain from the buyer

Infact the seller can even direct the buyer in settlement to pay the CGT to ATO and close the fund on the day of sale of the asset.

In my mind, paying CGT has never worried me - I have always used buyers cash to pay to ATO - I concentrate on net gain and not gross gain.

Your other comment on tax rate outside of super also does not make sense to me. I understand individual and corporate tax rates - no problem there.

But you are assuming there will be “income”. What about the situation when there is no income.

There are many investors who invest for only capital growth only (where buyers pay capital gain tax) - in a Zero gearing situation there is no loss and no gain and hence no tax. This can be achieved by 50% borrowing where interest rate is 6% and ROI is 3%.

And I am surprised that anyone should even consider CGT discount at individual level when an SMSF offers 10% tax rate - and you can tweak the Zero gearing based on your lending to the SMSF

Rob
September 14, 2023

I am "caught" and have already moved some money out

Absolutely correct - do the numbers, model the outcomes and watch the timing but a couple of additional things are getting my attention:

1. The unprecedented tax on unrealised gains could get very nasty if you owned a speccy stock for example that soared and then crashed at the wrong time. You could end up paying tax against which you had no offsets, potentially for years. My personal conclusion is that speccy stocks have to move somewhere else
2. The family home becomes the last tax free bastion and money will move, if not your own home, perhaps your kids homes? [Just what we need is a further misallocation to Residential housing!]
3. With no indexation of the $3m and inflation running at >3%, it will not be long before the tax free pension Transfer Bal Cap of $1.9m, bumps into the $3m, which is clearly the intent. My guess, is that every high earner of 55 or less, will NOT have a tax free retirement - again their intent.
4. For youngsters, it just destroys faith in the system - forced savings with moving goalposts. Why would you add "extra" contributions?

Lastly I do not trust either party on Super, the honeypot is just too big, so my personal decision is to hedge my bets - move some now and have a very clear strategy in place well before July 2025

Michael L
September 14, 2023

Thanks for your excellent pieces Meg. I have followed your writing closely over many years - before this publication was born. Would you be willing to make a comment for retirees who have large balances - over $3 million - in large, non-SMSF superannuation funds? There would be many like me, of course, who have changed from an SMSF to an industry fund because of their circumstances.

Meg Heffron
September 15, 2023

Lovely of you to say Michael, thank you. Hmmm I'm not sure I know how this will all work in an industry fund BUT I assume effectively you'll have pension accounts and accumulation accounts and they're managed quite separately by the fund. Hence it won't work like I've described because any capital gains you make in your accumulation account will be taxed in full and any in your pension account will be entirely tax free. SMSFs are different because the two are usually managed in a single portfolio and the tax situation is worked out proportionately like I've just described. I imagine if you're in an industry fund, your balance is valued using an earning rate or unit price that already takes all the tax into account and you can't play around with it the way I've described. If you have an adviser, though, who knows your circumstances and the way your fund works, might be worthwhile talking to them about this particular issue.

B2
September 18, 2023

Yes. Thank you Meg.

MKAdelaide
September 14, 2023

In making the decision, one cannot assume that the Government has finished tinkering with the system. The arbitrary $3 million and tax on unrealised gains were sharp reminders of the sovereign risk in superannuation.
The new Labor appointee to the Productivity Commission is on record calling for tax on superannuation pension payments.
There is nothing to stop a government increasing tax within super - especially as the mantra of “tax the rich” or “it affects only 100,000 rich Australians” seems to smooth over much outrage at changing the rules part way through.
As with most things, do not trust the government with your money and do not keep all your eggs in one basket (superannuation). Diversify.

Stephen Langford
September 14, 2023

"It's often far better to leave assets in super and cop the new tax." A good suggestion. If the unconscionable proposed tax on unrealized gains is rescinded, as it should be, then this certainly could be the best option. There is no rush ... and there will certainly be lots of suggestions and ideas as the deadline looms after the next election.

 

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