As a result of the superannuation reforms commencing 1 July 2017, trustees and members of superannuation funds should be working together to ensure that a member does not exceed their transfer balance cap. This article explains what SMSF members and trustees can do to commute pensions, and the consequences of not doing so.Melissa Ramov, Maddocks Lawyers
The transfer balance cap, is a concept introduced as at 1 July 2017 with respect to superannuation interests in pension phase. It imposes a limit on the asset value of all superannuation accounts held in pension phase (across all a person's superannuation funds). Currently, this limit is $1.6 million.
As the transfer balance cap takes effect on 1 July 2017, the balance of pension accounts will in many cases not be known to the required level of certainty before 30 June 2017. As such, members and trustees with sizeable pension accounts:
The ATO has recognised this issue in its publication 'Practical Compliance Guideline 2017/5 Superannuation Reform: commutation requests made before 1 July 2017 to avoid exceeding the $1.6 million transfer balance cap' (PCG). Pensions which, if left as is, would possibly result in a breach of the cap will need to be commuted in accordance with the relief in the PCG. The commutation will need to be for such amount as ensures the member's transfer balance is in line with the transfer balance cap — that is, a partial commutation.
Members will need to formally instruct the trustee of the fund to make the required partial commutation. This can be done by the member completing the necessary documents in order to record and effect the commutation in compliance with superannuation law together with the trustee giving the member the necessary Notification of Significant Event.
Cleardocs' Pension Commutation Kit has been prepared in order to comply with the PCG, enabling members to comply with the transfer balance cap requirements as at 1 July 2017.
Importantly, only one pension in respect of a person can be commuted using the relief under the PCG: this is because the amount to be commuted — which when the commutation occurs is unknown - must be able to be calculated under the terms of the commutation documents. The commutation documents must therefore have a formula for calculating that amount — which produces a number without the trustee being required to exercise a discretion.
By commuting pension phase assets back into your accumulation account, a CGT event occurs, these assets will become concessionally taxed in the accumulation account, and will later be subject to CGT when eventually sold (as opposed to being tax free if they were sold from the pension account). As such, certain CGT relief is available.
The trustee can elect to apply for CGT relief — to the effect that the cost base of the assets which support the pension are reset — if the following conditions are met:
Trustees will need to work with their advisors in order to apply for any CGT relief. Provided the asset meets the above requirements, in order to gain access to CGT relief, the trustee must take certain actions.
The trustee can choose to apply the relief to some or all of its assets. Where the asset is commuted on 30 June 2017, if the conditions for relief are satisfied, then:
If the fund is applying the proportionate method, a proportion of any net capital gain that arises from this CGT event (the deemed sale and acquisition) is generally taxable in the current year — however the fund may make an additional choice to defer the capital gain.
If the member fails to commute before 1 July and as such the member will exceed the transfer balance cap — the amount of earnings attributable to assets exceeding the transfer balance cap will be charged with an excess transfer balance tax.
For breaches occurring between 1 July 2017 and 30 June 2018 — the excess transfer balance tax is 15%. For breaches occurring after 1 July 2018 — there will be a 15% tax for first breaches occurring on and after FY18/19 and a 30% tax for subsequent breaches.
After 1 July, it is expected that commutations will be effected when:
If on or before 30 June 2017, the value of a member's transfer balance account is between $1,600,000 and $1,700,000, then the trustee will have until 31 December 2017 to transfer the excess capital out of the relevant pension accounts. No penalty will apply within this period.
If on or before 30 June 2017, the value of a member's transfer balance account is above $1,700,000, then by 30 June 2017 the trustee will be required to remove the excess assets from pension phase.
After 1 July, members and trustees should ensure they are aware of their transfer balance and the various activities which can result in a credit to a member's transfer balance account. Some of these activities include the following:
For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of the Revenue Practice Group.
You can read earlier ClearLaw articles on a range of superannuation topics.
 Section 1017B of the Corporations Act 2001 (Cth).
Section 5 of the Superannuation (Excess Transfer Balance Tax) Imposition Act 2016.
Paul is a Special Counsel in the Maddocks Commercial team with particular expertise in commercial agreements for the supply of goods and/or services, the Personal Property Securities Act 2009, the National Consumer Credit Protection Act 2009 and the National Credit Code and the Australian Consumer Law.
Paul's key areas of practice include:
Before joining Maddocks, Paul was employed for 13 years with the Victorian Department of Justice, principally as a Deputy Registrar in the Victorian Magistrate's Court, but also as a legislation, policy and project officer for the Department.
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For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of their team.