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Tax-free super is due to a social contract

We have now established that a franking credit is part of a taxpayer's taxable income, and that any taxable income held by the ATO that is excess to the tax liability should be refunded in cash as it is currently. This whole franking credit debate has highlighted the refunds that flow to super funds because of the tax concessions they enjoy.

Many readers have blamed Peter Costello's changes in 2007 for making super tax-free. This is incorrect.

With super, it is fund that is the taxpayer, not the member

Super was designed to help accumulate a nest egg for retirement to supplement or replace the age pension. It works with the cumulative effect of contributions added to investment earnings over 40 years less fees and taxes while no withdrawals can be made before retirement. The fund, not the member, pays 15% tax on (concessional) contributions, 15% tax on investment income and 10% tax on capital gains. The fund is a single taxpayer, paying tax on behalf of all its members. Therefore, with shares, the fund is the shareholder and taxpayer, not the member.

In retirement, most people transfer their super balance to a pension account because of its preferential tax treatment. A super fund paying a pension pays zero tax on income and capital gains. That has been the case since Paul Keating introduced universal and compulsory super in 1992. Keating could have left contributions and investment income tax-free if he taxed the benefit stage (pension and lump sums) normally, but he was not prepared to wait 30 to 40 years before collecting any tax.

Tax-free status of pensions is a reward for compulsory saving

Keating recognised long ago that Baby Boomers would be a great strain on the public purse in retirement (from 2011 onwards) unless they saved for their own retirement. The tax-free status of the pension fund has always been seen as compensation for compulsorily forcing people to lock their money away for 40 years. It is an encouragement for people to save for their own retirement and thus becoming less reliant on the age pension. The deal Baby Boomers were sold was that, after paying tax on contributions and investment income for 40 years, they would have tax-free pension funds.

Younger people and politicians who were not party to that social contract are often surprised and somewhat offended that super funds should be tax-free in retirement, and they blame the then Treasurer, Peter Costello, for making super tax-free after 60 in 2007. They are mistaken. The tax on earnings (income and capital gains) inside a pension fund has been zero and unchanged since 1992. This includes the time when Costello made withdrawals from a super fund, tax-free (after age 60) in 2007, when Mr Shorten was Minister for Superannuation in 2010, and when Treasurer Morrison limited the size of a tax-free pension fund to $1.6 million, in 2017.

Under Keating’s original plan, members would still pay tax on benefits taken from a fund in retirement but only on the concessional portion of that benefit and then only after a 15% tax rebate to compensate for taxes already paid. Consequently, very little tax was collected from this source. This is the tax on member withdrawals that Costello eliminated in 2007 and no government since has tried to reverse that decision, simply because the potential tax collected is not worth the political pain.

Costello’s changes did not affect the tax on super funds.

Part of the deal with a super pension is mandatory withdrawals

Members in a super pension fund have an obligation to take a mandatory minimum pension withdrawal every year in cash and that mandated minimum increases with age. It means that assets must be progressively sold to satisfy that pension requirement. The effect is to progressively deplete the fund to reduce or eliminate concessional super being passed to beneficiaries on death. In fact, many people exhaust their super balance well before that time.

Impact of franking credits in super

Australian shares are the only class of assets where the income arrives in the hands of the owner with tax already paid (that is why it is called franking), and will generate franking credits for the fund just like it will for other shareholders. The fund is a single taxpayer, paying tax on behalf of all its members. Under Labor’s proposal, if a fund has members predominantly in accumulation phase it will have a tax liability and it will be able to use its franking credits to pay some or all of the fund’s tax liability but there will be no cash refund for any excess franking credits. The fund’s final tax position depends on income from assets other than shares and the number of members still in accumulation phase with tax obligations on contributions and investment income compared to the number of members in the tax-free pension phase.

Retirees in pension phase in an industry fund may find that the fund has sufficient members in accumulation phase to allow their super pension to continue to receive a refund of their franking credits at least until the fund is overwhelmed by the number of members in pension phase. Such a policy is easily overturned.

SMSFs typically only have a couple of members, both in pension phase and the fund has no other tax liabilities to absorb franking credits. Under Labor’s proposal, the fund will lose all its franking credits refunds, or up to 30% of its income depending on the fund’s allocation to shares.

It is sometimes suggested that pension funds should be taxed the same as accumulation funds. Such a tax would certainly collect a lot of money because it would apply to income from all assets in the fund, not just shares, and it would apply to all super pension funds, SMSFs and industry funds alike. It would avoid the perceived discrimination of Labor’s proposal against SMSFs, but no one would then use a pension fund with its mandated requirement to remove assets from this concessional area, and that has estate planning implications.

If retirees remain in a pension fund, Labor’s proposal will seriously impact the fund’s capacity to continue to pay the mandated withdrawals because it will have lower after-tax earnings. When the super fund is exhausted, most people become reliant on the age pension, at least in part. Labor appears not to have considered that their proposal has severe long-term implications for the cost of the age pension to the taxpayer.

 

Jon Kalkman is a Director of the Australian Investors Association. This article is for general information purposes only and does not consider the circumstances of any investor.

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23 Comments

Tony

March 17, 2019

We have to agree to disagree on the intended design of franking credits. In my world, they are designed to avoid double taxation and so taxpayers who pay more than the company tax rate are taxed only at the rate in excess of 30%. In my world, companies are distinct tax entities, not a collection of individual taxpayers and so are taxes distinctly and explicitly.
It seems in your world, companies are a collection of individuals. In your world, there is no company tax at all. What a strange world that is!! A world that would result in an increase in tax on individuals. In fact, that is the world you and I do live in, and I look forward to having it corrected so that companies are actually taxed on profits. In that world, that the individual PAYE taxpayer receives some tax relief.

Dudley

March 18, 2019

"In my world, companies are distinct tax entities, not a collection of individual taxpayers and so are taxes distinctly and explicitly.":

In an alternate world, employers would also be "distinct tax entities" - separate from employees - and the payroll tax rate would be be the same as the company tax rate - and employees would not receive refunds of over paid wage tax.

Jon Kalkman

March 18, 2019

“We have to disagree on the nature of franking credits” That disagreement arises from a fundamentally different understanding of how companies operate.

A company is no more than a collection of shareholders who provide capital to the company to operate a business in return for a share of the profits that flow from that activity. They can also sell their share of the company to another shareholder in the share market.

A company is a separate legal entity. It can enter into contracts, it can be sued and has all the characteristics of a natural person but the assets and the profits are owned by the shareholders. A company is also taxed as a legal entity but the tax is only applied to profits, not income as some commentators believe. The tax is 30% on all profits, from the first dollar with no marginal tax rates, unless the company has a turnover of less than $50 million, in which case the tax on profits is 27.5%. For our purposes we will assume we are only dealing with only large companies.

The shareholders elect a Board of Directors who direct the activities of the company. In many companies the Directors decide to retain some of the after-tax profits to reinvest in the business, rather than go to the shareholders for more capital or borrow from the bank. That explains why company directors generally favour a lower company tax rate. The remaining after-tax profit is typically distributed to shareholders as dividends and all shares are treated identically so a larger shareholding translates into a larger dividend payment.

Some of the shareholders live overseas and do not pay tax in Australia and those dividend payments are lost to Australia but the ATO has already collected 30% tax before those dividends were distributed.

For Australian shareholders the 30% company tax sent to the ATO is a down-payment on their own tax obligations. If I own 3,500 CBA shares and the dividend is $2.00 per share, my dividend from this shareholding is $7,000. But in my personal tax return I must also account for the company tax already paid to the ATO by “grossing up” the dividend. Therefore, my taxable income is now $10,000, comprised of $7,000 dividend which is 70% of my share of the pre-tax company’s profit but also another $3,000 which is 30% company tax of my share of the pre-paid company’s profit. That $3,000 is then additional taxable income for me that the ATO is holding but which I never see. As it is held by the ATO it becomes a tax credit as a down-payment on my own tax obligation. It is called “franking” because it is “tax-paid”. Note that my taxable income is 43% higher with this tax credit than the dividend alone.

Because the 30% tax credit is constant proportion of the total but the personal tax scales are progressive, the tax I pay on that taxable income depends on my marginal tax rate. People on high incomes not only pay more tax than those on low incomes, they also pay proportionally more tax. Some people on high incomes pay more than 30% tax on their taxable income others pay less.

Under the system that has operated since 1987, the franking credit can be used to pay some or all of your personal tax obligation. Since 2001, if the franking credit is greater than the tax liability the taxpayer receives a cash refund of the excess tax already paid, in the same way that a PAYG taxpayer receives a refund for excess tax paid on their behalf by their employer.
The purpose and effect of the franking system is to ensure that Australian shareholders pay tax on their share of ALL the company’s profits (not just the dividend) at their marginal tax rate. The cash refund ensures it.

What Labor is proposing is very simple. The franking credit will still be able to be used to pay part of all of my personal tax liability but if my tax rate is lower than 30% I will no longer receive a cash refund for the excess pre-paid tax. Note that the franking credit remains part of my taxable income and that can determine my eligibility for a number of government benefits. Because shareholders in this position will still have a higher taxable income due to the franking credit, without the cash refund they will be effectively paying 30% tax on their dividend income regardless of their marginal tax rate.

As a taxpayer, a super pension fund has a zero rate and no tax liability for historical reasons outlined above so it will lose all its cash refund for the franking credits on the dividends it receives. If that zero-tax rate is the issue, it is easily remedied. A tax on the income in a super pension fund would be much fairer than removing the refund of cash refunds because it would apply to the income from all assets, not just shares and it would apply to all super pension funds, not just SMSFs. And that is why it probably will never happen because it would apply equally to industry funds thereby reducing their after-tax returns and the fees that those returns generate for the fund and by extension, the donations to Labor itself.

James

March 18, 2019

Great explanation! Thank you. Shame you can’t convince the immovable Bill and Bowen and the generally uninformed voting public, that are want to take Labor’s lies about this at face value.

If this change comes to pass it will a very unfair, discriminatory tragedy for many investors that have strived to provide a better retirement for themselves and not be a burden to society. The fact that this change will not be grandfathered is even worse.

Warren Bird

March 18, 2019

Tony, if companies are the completely distinct entities that you think should be the case, then there can be no such thing as 'double taxation'. Company tax would not be integrated with personal income tax because your world wouldn’t align shareholders and the companies in which they own shares. In your world, company tax is not in any way shape or form the pre-payment of tax on an individual's income, as they're separate entities.

Putting that aside, however, and supposing that your world did still allow those on high incomes to be treated in a way that sees company tax as a pre-payment of some of their own tax obligation, the unfairness to those on low incomes or retirement incomes becomes apparent. While high income earners are treated as having already paid some tax and getting credit for it, low income earners are treated differently with no credit for tax taken out of their share income. Why do you want to favour those on the 45% marginal tax rate over those with a zero tax rate? (I think I know the answer - read on.)

The world you envisage treats those who happen to own their own business differently to those who happen to have pooled with others to own one collectively. Private business owners get to treat all their business income as personal income whether it’s a high or low amount of money, but shareholders don’t. At least, shareholders with high incomes get to, but those who only earn a modest income don’t.

The world you envisage is the world we intentionally rejected when we accepted the principle of dividend imputation. And although it took two goes to get it fully implemented, it’s a fantastic system that recognises companies for what they actually are - a collective ownership vehicle for individuals to pool their money to invest in the Australian economy.

A lot more people do that now than in the pre-1980's before imputation, with a lower cost of capital as a result.

The world you envisage is also one in which share ownership goes back to being the privilege of the well off, and in which the cost of capital increases making it harder for Australian companies to find equity finance.

Not sure I think much of that world, actually. I spent my early career working for change in the direction that it's been implemented - changes for the better. It would certainly be a retrograde step to go back to it from where we are now.

The world we now live in is one in which company earnings are taxed at the average rate of all the shareholders. High earners top up the 30% according to their marginal rate, which funds refunds to those on a lower marginal rate than 30%. That's a great outcome! It's a fair world.

Which brings me back to the real issue behind this whole debate – some people think that there’s a cohort of income earners who are on the zero tax rate who shouldn’t be. If that’s the case, then be explicit, address that issue and increase their tax rate. But leave the imputation system alone. It ain’t broke, so doesn’t need fixing.

George R

March 17, 2019

Thank you for your coverage of the franking credit debate.



In this and all the other reading that I do, I haven’t been able to find any explanation of how it is that retirees drawing pensions from SMSFs will be any better off in industry funds when franking credit refunds are abolished.



In fact, I wonder whether a retiree in 100% pension mode (i.e. with no accumulation account balance) in an industry super fund is really getting the benefit of franking credits under the current law allowing refunds.



My understanding is that:

If an industry fund has a high percentage of members in accumulation phase resulting in its tax payable being higher than its franking credits, those franking credits will all be used to reduce the tax payable. The net tax payable will be allocated over all the accumulation accounts in the superfund thus reducing them. There are no franking credits left to allocate to the pensions accounts. So a retiree in 100% retirement mode (with no accumulation account balance) is currently not getting the benefit of any of the franking credits that the dividend income allocated to him would have attracted. All the members with accumulation accounts are getting what should have been his.
If the franking credits receivable by the industry fund are higher than the tax payable, the fund’s tax will be reduced to nil and the balance of the franking credits will be refunded under the current system and allocated over all the accumulation and pension accounts. The retiree in 100% pension mode will be getting only a portion of the franking credits he should have received; the members with accumulation balances are getting the rest.


If my understanding is correct, the industry fund member 100% in pension mode would be better off, under the current law (i.e. before a Labor government stops refunds of franking credits), in an SMSF. In the SMSF, where there will be no accumulation account balances because he is 100% in pension mode, the full franking credits would be paid by the ATO to the SMSF and allocated to his the pension account, thus increasing it.



So, why do so many people writing about this issue suggest that retirees receiving pensions from SMSFs that receive franking credit refund cheques from the ATO should consider moving to an industry fund when Labor stops the refunds? If my understanding is correct, they won’t get the benefit of the franking credit there either.



I must be missing something! Can anyone explain to me why moving to an industry fund is a possible strategy when franking credit refunds are abolished?

Ian Shaw

March 19, 2019

George R,

A number of big funds (Industry Funds) offer a "member direct" option, whereby you choose the shares you want to invest in.

As you point out, the tax is levied on the total tax payable by the fund as a whole. Because the tax payable exceeds the franking credits, all the franking credits are available to allocate back to the members.

For the member direct accounts, all the franking credits that your shares have generated, are credited back to your account. If you are in accumulation mode the gross dividend will be taxed at 15%. If you are in pension mode, you will receive both the dividend and the full franking credit.

Stating the obvious, a corresponding pension account in an SMSF will lose the franking credits.

Coming back to your comment - it all depends on the policy of the super fund as to how the franking credits are allocated. Graham Hand wrote an excellent article on exactly this topic that is well worth reading
https://cuffelinks.com.au/not-all-public-funds-same/

Ian Shaw

March 16, 2019

Like so many others, I will be affected by the Labor franking credit policy, and I'm not happy about it.

Would people vote for a Franking Party in the Senate with a policy to block Labor's plan?

Dudley

March 16, 2019

"Would people vote for a Franking Party in the Senate with a policy to block Labor’s plan?":

They might be more or less inclined to vote for candidates who have endorsed a 'Refundable Franking Credit Manifesto' - should one be offered to them and published together with their pledge / signature.

Perhaps candidates would need to pass a test to earn a 'Franking Credit Campaign Button', to ensure voters had some confidence that the candidate they had some idea what 'Refundable Franking Credits' are, or are not.

Tim

March 17, 2019

Yes Ian, I would.

Rob

March 18, 2019

There is one already, the newly formed SMSF and Self Funded Retiree Party

Alan

March 14, 2019

The rules relating to superannuation are truly bizarre and ridiculous – in my opinion there are no consistent rules! I find it extraordinary that the politicians, who can access their superannuation at 55 years and have no obligation to pay any tax on their pension, are now wanting to TAX retirees with less pension income AT A 30% RATE FROM dollar 1.
I was a teacher who just missed out on accessing the initial superannuation fund. Teachers in this fund, like politicians and probably other public servants PAY NO TAX on their pension. In addition, their payments are indexed to inflation.
In the 2nd superannuation fund, I had to take a lump sum, join a managed superannuation fund with an adviser and pay $7000 to $9000 in fees – who gave little good advice, twice in 6 months. I am subject to both increasing and decreasing equity pricing, whereas those above have no such vagaries. They receive the same amount of money each month.
I have no problem with this EXCEPT if the politicians want to take my franking credits, which are an income stream and a tax payment - but the politicians can only say, ‘excess franking credits' not ‘tax obligation’, which it is. THIS is a very hypocritical stance from Shorten, Bowen et all, especially considering I had to wait until I was 63 years to access my pension phase superannuation. Then we should consider that the age to access 'normal pensions' is now 67.5 years and increasing. My pension is not paid from TAX PAYER money unlike the politician’s superannuation.
Is it fair to make the rules and skew them to your benefit? Your call.
Is it fair to reduce the pensions of people with lower incomes, which are not indexed to inflation, knowing that politicians pay no tax?
WHEN the POLITICIANS PAY NO TAX, I assume they will also gladly return 30% of their superannuation income ‘to help balance the budget'??
I have been looking at ‘Cuffelinks’, and saw a brilliant opportunity from another contributor ‘TO TARGET THE RICH’ (alone), if a new LAW is to be enact? Then let it be – nobody in pension phase, can have an account in accumulation phase within superannuation. Normal tax obligations would then apply and only to THE VERY RICH, deductions, tax-free threshold and other options can be determined by the ‘rule makers’.
Those with $1.6M in their superannuation pension phase need no more (4% gives $64,000 income and 5% withdrawal provides $80.000 income) and they can pay normal tax rates outside superannuation to supplement any income deficiency.
If necessary there could be a concession that $100,000 or $200,000 a year could be returned to superannuation, if their superannuation account balance fell below $1.6M, provided their new balance stayed below $1.6M.

Tony Reardon

March 14, 2019

The article says that the 2007 changes were not the change that made super pensions tax-free and this is true.
The 2007 set of changes were extensive and no doubt did have a budgetary impact but the explanatory memorandum does not indicate which of the changes had what cost. For example, the increase of the superannuation guarantee to 9% is in there costing the budget foregone tax revenue and the asset test taper for qualification for the age pension was reduced, again costing money. Also the ATO required additional resourcing.
The main thrust of the article concerns the proposal to change the treatment of franking credits and, as far as I can tell, the one relevant mention in the explanatory memorandum says
“8.16 The investment income of superannuation funds is taxed at 15 per cent, but can be reduced through the use of imputation credits.”
There is nothing in the memorandum implying a change to the treatment of imputation credits or any indication that there was any budget cost.

Jack Upton

March 14, 2019

But then there is the huge Future Fund ($140+ billion) that pays no taxes and is for the sole benefit of pollies and public servants in spite of its seed money being from the sale of a publicly owned asset. It is supposedly returning 7% or currently $10b a year. Tax this at 30% and you have $3b already.

Loz

March 14, 2019

John

If you tax the earnings of pension mode super then nobody would want to convert to pension mode from accumulation. This is correct, but this could easily be overcome.

Everyone would be required to take out 5% of their total super each year after they reach the age of seventy. This could be increased in line with current requirements or just increased to 10% when you reach ninety. Easy.

More complex is that if the franking changes come into effect then any SMSF with half of the income in franked dividends will be in the same position whether they are in accumulation or pension mode. Some SMSF's will just switch back to accumulation mode and avoid paying out the minimum each year.

Many retirees have assets and income outside of super and would not need to access their super at all, others could just take out what they need as a lump sum payment from their accumulation super without needing to reach a minimum drawdown.

This will make super more attractive as an estate planning strategy. Not really what the ALP intended.

Stephen

March 16, 2019

Hi Loz,

Super in accumulation accounts is not as attractive for estate planning as in pension accounts. One of the benefits of pension accounts (from an estate planning perspective) is that the relative portions of the tax-free and taxable components of the asset base are fixed at the commence of the pension and do not change over the life of the pension. Investment earnings are then allocated to each component in line with these portions. However, in accumulation mode, investment earnings are considered 100% taxable component. Therefore, if you were to shift to an accumulation account in retirement phase and remain there for some time, the investment earnings over time will erode the tax-free component of the asset base for estate planning purposes.

Rob G

March 14, 2019

"If retirees remain in a pension fund, Labor’s proposal will seriously impact the fund’s capacity to continue to pay the mandated withdrawals because it will have lower after-tax earnings"

Not true. The mandated withdrawals are a % of the balance - whether that balance is $50k or $1m - makes no difference - 5% is 5%. The point that you should be making is that "balances post franking credit theft" will be lower and the mandated withdrawal in more cases will not meet the individuals cost of living. The implications are either lower livings standards or finding alternative sources of income from other savings, reverse mortgages etc

That also inevitably means Estates will be lower and wealth transfer between generations will be lower, all good socialist policy

Jon Kalkman

March 16, 2019

Rob. If I am between the ages of 75 and 80, I am required by law to withdraw 6% of my pension fund (as at 30 June each year) in cash every year. The size of the fund is irrelevant as is the fund's performance.

If the fund earns 6% income because that income includes franking credits, the fund has enough cash to pay that mandatory pension. If the fund only earns 4% (because it loses the income from franking credits, for example), it has insufficient cash and 2% of its assets need to be sold to pay the pension. If I am over the age of 90, I am required to withdraw 11% of the fund, (and it is 14% after age 95) so the fund needs to sell assets every year to pay the pension. This process is cumulative and explains why super pension funds are designed to expire.

And I may need to take more pension than the minimum payment. If I have $500,000 in the fund, but I need $50,000 to live on, I am drawing 10% every regardless of the minimum requirement, but it is still the case that the lower the income earned by the fund, the more assets that need to be sold to meet these mandatory requirements.

In retirement, you either live on income or you sell assets to generate cash. A higher income preserves your assets for longer. The loss of franking credits in a pension fund will hasten their demise unless that income is replaced from a source other than Australian shares.

Dudley

March 14, 2019

"members would still pay tax on benefits taken from a fund in retirement but only on the concessional portion of that benefit and then only after a 15% tax rebate to compensate for taxes already paid.":

I could not find data on SMSF tax return 'Section F: Member information', 'Income stream payment R2' in
https://data.gov.au/dataset/ds-dga-d170213c-4391-4d10-ac24-b0c11768da3f/details?q=

Nor data on concessional portion of members balances - because it is not reported.

It is not possible for ATO to calculate how much tax would result from taxing the concessional portion of a super / pension withdrawal.

Cam

March 14, 2019

Hi Dudley, re 'members would still pay tax ...', this was referring to legislation pre 2007, so won't be in a SMSF's current tax return.

The data is still kept though, so if the 2007 changes were reversed the old tax rules for pensions and lump sums could seamlessly be applied. The data is kept as the different components receive different tax treatment after death where benefits are paid to independent adult children.

Dudley

March 14, 2019

"The data is kept as the different components receive different tax treatment after death where benefits are paid to independent adult children.":

The tax component data required to be kept by funds but is not reported to government. Government would have to perform 'heroic' calculations to know if funds were 'economical with the truth'.

“Future Fund”:

Pension payments from PSS are taxed – whereas from SMSF are not taxed.

Christopher O'Neill

March 14, 2019

You are incorrect. Costello's changes came with a huge cost that was acknowledged at the time: https://www.legislation.gov.au/Details/C2006B00226/Explanatory%20Memorandum/Text

The cost has probably risen to $5 billion a year by now.

Dudley

March 14, 2019

https://www.legislation.gov.au/Details/C2006B00226/Explanatory%20Memorandum/Text

'Compliance cost impact: Initial implementation costs for individuals, employers and superannuation funds are expected to be offset by ongoing compliance savings from the new simplified and streamlined arrangements.'


 

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