And the ALP’s linked attack on self-managed funds to the benefit of industry funds could also backfire.

The ALP’s franking credits proposal now is generating a widespread revision of retirement funding strategies across the nation and an examination of how both industry and retail funds currently distribute franking credits to their members whose money is in pension mode.

As part of this process, quietly and without fanfare, the government has opened the way for a new era of self-managed fund growth that will embrace families.

In particular it is offering self-managed funds in pension mode an option to protect their franking credits should the ALP win the next election (albeit, in the government’s view, an unlikely event).

There is little doubt that the royal commission into banking and finance will be gold for industry funds because they will be major beneficiaries at the expense of the retail funds that are run by banks, plus the AMP.

But the self-managed fund movement will also benefit.

It is ironic that the trigger for the royal commission was the Four Corners/Fairfax revelations about banking and insurance.

If we go back to the 1990s a similar ABC Four Corners program revealed incredible commission rackets in the life industry.

The National Mutual was revealed to be hiring used car salesmen and offering them two thirds of the first two years premium as commission. There was no disclosure and the unsuspecting clients did not know the level of the commissions.

The ALP’s John Dawkins legislated to force disclosure of commissions and that disclosure was the beginnings of the growth of self-managed funds.

While the National Mutual was highlighted, the high commission rackets were industry wide and when CBA bought Colonial and NAB bought MLC a decade after the sales commission scandals were revealed, the culture was still there and the banks inherited it. For the most part the big four banks had chief executives who had come up as bankers, not investment managers, and did not fully understand the impact of the deep-seated culture.

And the politicians (including the ALP when it was in power) believed the bank chiefs when they claimed the initial scandals were isolated incidents, not a cultural problem.

Unfortunately the politicians have not learned from their errors and so exactly the same thing is happening with the Australian Taxation Office small business scandals — it’s not a series of isolated incidents but rather a deep ATO cultural problem because too many people inside the ATO think all taxpayers are “liars and cheats”.

Given that private individuals and those with more than $1.6 million in pension mode superannuation funds can alter their investment strategies to protect their franking credits and those on government pensions are protected, the only people who are in danger are those with tax-free pension mode superannuation savings below the $1.6 million cap and above the government pension trigger point. Widows and widowers are particularly vulnerable.

I should emphasise that shadow treasurer Chris Bowen still genuinely believes he is right because he checked his sums with the budget office set up to undertake such tasks.

I do not know how the mistake was made but the government and treasury have done the detailed sums and there are only token amounts to be raised from people who will be hit hard.

Privately the government is asking itself whether to execute Shorten and Bowen now or wait until closer to the election when they have “spent” the non-existent money.

And the penny is dropping in some areas of government that not only can Bowen and Shorten be hit but there is money to be raised from banks plus retail and industry funds over franking credits which is much more desirable than taking money from widows.

Right now there is a racket taking place that no-one wants to touch. Under the franking credit rules shareholders who reside overseas are not entitled to franking credits. To get around this the overseas resident holders lend their shares to retail and industry funds at least 45 days before dividend time and/or borrow on the shares and register them in the name of the lender (usually a bank) so the bank gets the franking credit.

The deal is usually that the overseas shareholders’ “lost” franking credit is shared 50/50 between the overseas owners and the bank/ superannuation fund.

A very simple and highly remunerative move is to legislate so that only the Australian resident beneficial owners of the shares can benefit. The banks and big superannuation funds that are cleaning up will lose, as will the overseas shareholders.

There will be lots of screams and lots of money raised — a lot more than the ALP plan.

This situation underlines what is taking place among both industry and retail funds. For the most part the big superannuation funds see themselves as the one taxable unit but within that unit are members whose income is taxed at 15 per cent and those in pension mode and who have assets under $1.6 million who are tax-free.

In the industry fund movement there is an overall uniform benefit covering all members and then eligible pension mode members receive a credit that reflects both their tax-free status and their full tax-free franking credit entitlement. If these franking credit refunds were separated out from tax-free benefits they could easily be lost under the Shorten Bowen plan, but given they are not separated it enables the ALP to say that pension mode members of industry funds will not be affected.

The industry funds are adamant that the full tax benefit of franking credits to those in pension mode is distributed, albeit there is no disclosure. But do retail funds do the same thing?

It’s possible that in some big funds the full benefits of a tax free franking credit does not go to the pension mode beneficiaries who are entitled to it but rather the benefits are shared with to ordinary non-pension mode members to boost returns, or the benefit might even end up in the manager’s pocket.

In the meantime, self-managed funds are starting to look at playing the same game. All around Australia plans are now being prepared to bring children, particularly those with worthwhile superannuation balances, into the family self-managed funds. The children are not in pension mode so the income from their funds is taxed and that tax can enable the fund (and not an ALP government) to receive the benefit of the pension mode franking credits.

Now, of course, if the government acts to contain franking benefits to the beneficial owner then that scheme may not work, but industry fund members would be in the same boat. But there are other family benefits from bringing children into self-managed funds.

A self-managed fund is limited to four members, which means if there are three or four children it creates a problem. Enter the Minister for Revenue and Financial Services Kelly O’Dwyer. This week she announced that the number of permissible members in a self-managed fund would be raised from four to six, which will create greater flexibility for the new revolution.

Ageing parents (usually the male) have been reluctant to pass even partial control of the self-managed fund to their children but Shorten and Bowen have provided the trigger and this new era of self-managed funds will spread through the land.

There is a danger that a family split will make life complicated, but with intelligent planning that risk can be reduced.

It’s ironic that a plan that was aimed to raise money and attack self-managed funds will not raise big sums and will spark a new self-managed fund revolution.

The Australian

1 May 2018

Meg Heffron

As the bank inquiry dominated news headlines in recent days the government announced a change that will certainly be very ­welcome for some families with self-managed super funds.

Until now the most people ­allowed in an SMSF fund was four, but Financial Services Minister Kelly O’Dwyer has announced the government ­intends to allow six people. The timing is especially useful since some families are reviewing their SMSF arrangements in the light of the ALP plan to scrap cash ­refunds for franked dividends.

One way to mitigate the ­impact of the ALP proposal is to include adult children in the SMSF so the franking credits generated by the parents’ share portfolio can at least be used to pay the tax generated by the children’s super, rather than being wasted

To put some real figures around this issue, let’s assume an SMSF has two members and $1.5 million in assets (combined). Both members have retired, stopped making contributions and are ­receiving pensions from their fund. The fund earns about 4 per cent in investment income a year (a combination of dividends, rent, and interest) in addition to any growth in the value of their assets. About 50 per cent of the ­investment income is franked ­dividends. This means that in ­addition to receiving the cash dividends of $30,000 (4 per cent x 50 per cent x $1.5m), the fund will receive franking credits — these will be about $12,857. Under ­current law, the fund would pay no tax and would receive a tax ­refund of $12,857.

Under the ALP proposal the fund would still pay no tax but would not receive the $12,857 ­refund. In other words, if the ALP measure is introduced as planned, the fund (and therefore the members) will be $12,857 poorer every year.

What if the couple included their adult children in the fund?

If the children are working, their employer could contribute to the fund, creating more taxable income (which in turn will use up the franking credits rather than wasting them). Or the children could make personal contributions for which they claim a tax deduction.

Let’s say the employer contributions made for the children were as high as possible ($25,000 each). At the moment, only two children can be included in the SMSF before the four-member limit is reached, so this would help but not entirely solve the problem. Adding the children’s contributions would now mean the fund would use $7500 of the franking credits (the amount of tax that would normally be due on the contributions). But the family would still waste the rest of the franking credits ($5357).

Note that it would also be possible — and reasonable — to make sure the benefit of being able to use some of the franking credits passed to the parents rather than being a windfall for the children, given that it would be the parents’ investments that created the ­opportunity in the first place. This would be worked out by the fund’s accountant.

Make the most of rules

Is there any way of making sure the fund uses up all of the franking credits? In fact, it is difficult. Even if the children transferred their own superannuation balances into the fund (and so the fund paid income tax on some of its investment income), this would also mean the fund would have more investments and probably more franking credits.

Really, what the fund needs is more taxable contributions. This is why large funds (such as industry funds and retail funds) are not affected quite so much by the ALP proposal. Even though these funds might have many more pensioners than an SMSF, they also have many more members receiving employer contributions.

It is also why the latest announcement about increasing the limit on SMSF members to six will be particularly interesting to those with larger families. Parents in this position with four children (or two children and their spouses) with the maximum rate of taxable contributions could use all the fund’s franking credits.

Of course, this relies on couples conveniently having family or others who can direct large contributions to the fund and want to do so. Nonetheless, where feasible, it is likely that including children and possibly even ­extended family in an SMSF will be a common response if Labor’s proposal is introduced. As the ­figures, left, show, it will certainly help make better use of the franking credits that might otherwise be wasted, particularly in a ­pension fund.

But be careful here — there are issues you need to consider.

First, new members are generally also required to be trustees of the fund. This means the children become decision-makers when it comes to the running of the fund. There are some protections that can be put in place but, at the very least, the fund’s trustees must make decisions with the interests of all members, including the children, in mind. Even now, when funds are limited to four members, if one parent dies there is a risk that the children (combined) have more control over the fund than the surviving parent. In a six-member fund, with for example four children, this problem exists from day one.

If a couple has more children than can fit in the fund — more than two now or more than four in future — some must miss out. This may not be a problem — who really wants to belong to their parents’ superannuation fund anyway? But it does create the potential for the children who are not in the fund to feel excluded.

Finally, adding the children to the parents’ fund may disrupt the children’s own superannuation planning — at the very least it may delay their ability to set up their own SMSF with their spouse. It is also an arrangement that will need to be unwound at some point — for example, once the parents die, will the children want to continue combining their superannuation arrangements? Even this has some solutions — the children could routinely roll out most of their superannuation contributions to their own fund, the contributions just need to be made to (and taxable in) their parents’ fund. But then life starts to become more complicated.

So while adding children to an SMSF may provide a better tax ­result by making sure more of the franking credits are used, the solution won’t necessarily be right for every ­family.

Meg Heffron is head of SMSF education services at www.heffron.com.au

The Australian

27 April 2018

Michael Roddan

Proposed government reforms in the superannuation sector look set to entrench the growth in self-managed super funds in the nation’s nest egg system.

SMSFs will be allowed to expand from four to six members under new laws expected to be announced by Kelly O’Dwyer today.

Along with the changes, SMSF owners will also be allowed to more easily roll over funds electronically using the SuperStream technology — the standard through which money and information is transmitted across the $2.5 trillion super system.

Currently, rollovers through SuperStream can only be done between two funds that are regulated by the Australian Prudential Regulation Authority.

The SMSF sector, which houses around $700 billion in assets, has been pushing for the changes. The proposals will allow SMSF members to roll over funds electronically between a standard APRA-regulated fund and their SMSF.

Ms O’Dwyer is expected to announce the changes at the SMSF expo in Melbourne today.

Following the tax reforms launched in the 2016 federal budget, the Turnbull government has been seen as hostile by many SMSF owners.

Those changes would reduce the overly generous tax concessions given to wealthy retirees with more than $1.6 million in savings, or $3.2m for a couple.

“We appreciate the role SMSFs play in providing competition throughout the superannuation sector by providing an alternative to directing your mandatory super contributions to the larger funds,” Ms O’Dwyer will say.

“We also appreciate the opportunity that SMSFs afford Australians who wish to take a more hands-on approach and exert more control over their own retirement.”

The changes are expected to be included in the upcoming budget in May.

The SuperStream changes are expected to allow members to roll over their funds into an SMSF faster and with lower compliance costs.

The ATO has been tasked with implementing the reform, which is expected to commence late 2019.

Self-managed super funds now make up almost 30 per cent of the $2.5 trillion super sector with funds being set up at the rate of 2800 a month.

Total assets in SMSFs grew by 65 per cent to $697bn in the five years to 2017. More than 1.1 million Australians now have SMSFs.

There is a growing focus on the performance of SMSFs in Australia, with many owners with balances of less than $1m reporting underwhelming investment performance while being charged onerous fees.

The royal commission has also uncovered many instances where customers of financial advisers were told to set up SMSFs in circumstances that may have been against their best interests, due to the conflicted remuneration to be garnered by the financial adviser.

Australian Financial Review

26 April 2018

John Maroney – CEO of the SMSF Association

The Labor Party’s proposal to cancel cash refunds for excess dividend imputation credits is not just bad policy, it’s iniquitous. The SMSF Association does not say this lightly. But it’s the only conclusion that can be drawn  from Labor deciding that anyone who has a self-managed superannuation fund (SMSF) can be labelled wealthy and stripped of their cash refund.

Most of these retirees (overwhelmingly husbands and wives) are not wealthy – and certainly not in terms of income. Based on the average SMSF balance of about $1 million and a fully-franked share portfolio totalling 40 per cent of an SMSF’s assets, it will mean current annual income of about $50,000 will drop more than 15 per cent – or about $150 a week.

But because SMSF trustees have had the temerity to take politicians at their word and become self-sufficient in retirement and not go on to the age pension, they are being targeted by Labor searching for extra spending dollars in the run-up to the next federal election.

Based on Labor’s sums, the proposal could raise revenue of $55 billion over 10 years. But the reality is it will reap far less because it’s poorly-designed policy –  and will undermine confidence in super on the false premise it will deliver a fiscal bonanza. Anyone doubting falling confidence need only look at the recent Roy Morgan survey showing voluntary contributions  fell from 25.5 per cent of fund members in 2010 to 20.8 per cent now.

But SMSF trustees will have options – and will respond accordingly. Asset allocations will change away from fully-franked shares, in the process removing the stability the $720 billion SMSF sector (with an asset allocation of more than 30 per cent in domestic shares) has brought to the blue chips’ share registers.

Future options

Another option will be to include extra members with taxable contributions in SMSF funds, or trustees could reduce their assets to claim a part pension. Encouraging retirees to draw down capital to go on the age pension will negate much of the cash benefit Labor hopes to reap.

When Labor first released its proposal, people on the age pension were included. But the ensuing public outcry saw these pensioners quickly excluded, and Labor has repeatedly said since that most members of retail and industry funds will be unaffected by the reforms because imputation credits are offset by tax liabilities.

Labor’s rationale is that Australia can no longer afford to give out cash refunds – in its words it’s projected to cost the budget “up to $8 billion a year” over the next 10 years.

Let’s have a closer look at this. The budget can’t afford cash refunds on which SMSFs have built their retirement strategies for nearly two decades, but can afford tax offsets (significantly larger than the cash refunds) that every individual with a franking credit enjoys, despite the obvious fact there is no difference to the budget bottom line between a tax offset and cash rebate.

Taking Labor’s policy logic to its obvious conclusion, it could be argued that we can’t afford any tax offsets.  But Labor is not going down that politically treacherous path. It’s easier to get a quick fiscal hit by targeting “wealthy” SMSFs.

Inequity

The inequity of this proposal is further exemplified by Labor  excluding some not-for-profit organisations, including trade unions. Evidently these organisations are deserving of an exemption but a person who has worked an entire lifetime to be self-sufficient in retirement is not.

Finally, Labor says it will exempt SMSFs with at least one member receiving a pension before March 28, 2018 from the proposed changes. Called the Pensioner Guarantee, it again highlights the inequity of Labor’s proposal.

After this arbitrary date, there will be no protection for SMSF retirees who may need to rely on partial government support to supplement their superannuation income, with the end result being a grossly unfair, two-tiered and complex treatment of SMSF members regarding access to the age pension. Indeed, it could mean self-sufficient SMSF members are potentially worse off than people with less savings but with refundable franking credits and part pensions.

Since 1992, when the compulsory super system was introduced, politicians of all political shades have found this growing national nest egg very tempting. But this is the first time a political party has specifically targeted one super sector for its own fiscal needs, punishing people who by dint of hard work and thrift have achieved self-sufficiency in retirement. These self-funded retirees deserve better.

John Maroney is CEO of the SMSF Association.

Joseph Cheung (jcheung@dbalawyers.com.au), Lawyer and Daniel Butler (dbutler@dbalawyers.com.au), Director, DBA Lawyers

Contributions made in excess of an individual’s concessional contributions (‘CC’) cap can give rise to extra tax payable and a liability to excess CC (‘ECC’) charge for the individual. This article highlights how the ECC charge operates. Note that the law in this area is complex and a detailed and careful analysis is required to properly understand how the ECC system operates.

Background: Tax on ECC and entitlement to offset

Before considering the ECC charge, it is useful to consider the general tax treatment of an ECC.

Section 291-15 of the Income Tax Assessment Act 1997 (Cth) (‘ITAA 1997’) states that where an individual has ECC for a financial year (‘FY’):

• an amount equal to the ECC is included in the individual’s assessable income for the corresponding FY; and
• the individual is entitled to a tax offset for that FY equal to 15% of the ECC.

Consider the following example:

EXAMPLE 1

For FY2018:

– Bob’s CC cap is $25,000

– Bob’s CC total $35,000

– Bob has $10,000 of ECC

Thus, an amount of $10,000 is included in Bob’s assessable income for FY2018. Bob is entitled to a tax offset equal to $1,500 (being 15% of $10,000) for FY2018.

A tax offset that arises because of the operation of s 291-15 of the ITAA 1997 cannot be refunded, transferred or carried forward.

ECC charge

Purpose of the ECC charge

Individuals who make ECC could benefit from tax advantages. This is because the ECC are not subject to the pay as you go rules. Moreover, earnings from ECC are retained in a concessionally taxed superannuation environment. To negate these benefits, the ECC charge was introduced in mid-2013.

Liability to ECC charge

Where the inclusion of an amount equal to the individual’s ECC results in an increase in their tax liability, the individual will be liable to the ECC charge. Section 95-10 of the Taxation Administration Act 1953 (Cth) (‘TAA’) sets out the methodology to determine whether an individual is liable to ECC charge. The following broadly summarises the main questions to ask when applying the methodology:

1          Does the individual have ECC for a FY?

2          Is the individual liable to pay an amount of tax for the corresponding FY?

3          Does the individual’s actual tax exceed the amount of tax they would be liable to pay for the FY if the ECC were disregarded? (If the individual would not be liable to pay tax for the FY if the ECC were disregarded, this question is modified as follows: Does the individual’s actual tax exceed a liability to pay a nil amount of tax?)

If the answer to all three questions is ‘yes’, the ‘excess’ (as calculated under question 3) is an amount of tax on which the individual is liable to pay ECC charge. This is illustrated in the following example:

EXAMPLE 2

Steve is an Australian tax resident and has taxable income of $87,000 and ECC of $10,000 for FY2018.

Question 1: Does the individual have ECC for a FY?

The answer to question 1 is ‘yes’, Steve has ECC of $10,000 for FY2018.

Question 2: Is the individual liable to pay an amount of tax for the corresponding FY?

Steve’s taxable income for FY2018 is $97,000 ($87,000 + $10,000 ECC). The tax payable on $97,000 of taxable income (not including the Medicare levy) is: $23,522. (Note: For taxable income in the range from $87,001 to $180,000, the tax on this income, not including the Medicare levy, is $19,822 plus 37c for each $1 over $87,000.)

Steve’s only tax offset is the ECC tax offset, which is calculated to be 15% of the ECC, ie, 15% of $10,000 = $1,500. Accordingly, the income tax payable on Steve’s taxable income including ECC less tax offsets is $23,522 – $1,500 = $22,022.

The answer to question 2 is ‘yes’, Steve is liable to pay an amount of tax of $22,022 for the corresponding FY.

Question 3: Does the individual’s actual tax exceed the amount of tax they would be liable to pay for the FY if the ECC were disregarded?

If Steve’s ECC were disregarded, Steve’s taxable income for FY2018 would be $87,000. The actual amount of tax on $87,000 would be $19,822.

If the ECC were disregarded, the ECC tax offset is also disregarded. Accordingly, the income tax payable on Steve’s taxable income if Steve’s ECC were disregarded is $19,822.

The answer to question 3 is ‘yes’, Steve’s actual tax ($22,022) exceeds the amount of tax that he would be liable to pay for the FY if the ECC were disregarded ($19,822).

‘Excess’

As the answer to all three questions is ‘yes’, the ‘excess’ of $2,200 (being the difference between $22,022 and $19,822) is an amount of tax on which the individual is liable to pay ECC charge.

For completeness, we note that where an individual is not liable to pay an amount of tax for the corresponding FY (even after the inclusion of their ECC in their taxable income), they are not liable to pay any ECC charge.

Period for which the ECC charge is payable

The liability for the ECC charge begins on the first day of the FY and ends on the day before the day on which tax under the individual’s first notice of assessment (‘NOA’) for that FY is due to be paid, or would be paid if there were any to pay (TAA s 95-15(3)).

Amount of ECC charge

Section 95-15 of the TAA states the methodology to calculate the amount of ECC charge. Broadly, the ECC charge for a day is calculated by multiplying the rate worked out under s 4 of the Superannuation (Excess Concessional Contributions Charge) Act 2013 (Cth) for that day by the sum of the following amounts:

(a)       the amount of tax on which the individual is liable to pay the charge (refer to Example 2 above for details on how to calculate this amount); and

(b)       the ECC charge on that amount from previous days.

Broadly, the ECC charge is based on the same rate as the shortfall interest charge (‘SIC’) rate (calculated under s 280-105 of the TAA) and is calculated on a daily compounding basis.

When the ECC charge is due and payable and the consequences of an ECC charge remaining unpaid

Generally, the ECC charge that an individual is liable to pay for an FY is due and payable on the day on which tax is due to be paid under their first NOA for that FY that includes an amount of tax on which they are liable to pay the charge (TAA s 95-20(1)). Technically, however, an ECC determination by the Commissioner is required to issue before an amount of ECC charge is due and payable (TAA s 95-20(2)).

Where the Commissioner amends an individual’s ECC determination, any extra charge resulting from the amendment is due and payable 21 days after the Commissioner gives them the notice of amended determination (TAA s 95-20(3)).

Furthermore, if an amount of ECC charge or SIC (on ECC charge) remains unpaid after the time by which it is due to be paid, the individual will also be liable to pay the general interest charge (‘GIC’) (TAA s 95-25).

We illustrate the interaction between ECC charge, SIC and GIC with an example:

EXAMPLE 3

Ray lodges his personal income tax return for FY2018 on 17 September 2018 and receives an NOA with a payment date of 1 November 2018. On 9 November 2018, the ATO determines that Ray has ECC for FY2018. The ATO provides Ray with an ECC determination and notice of amended assessment (‘NOAA’) on 9 November 2018, with a payment date of 30 November 2018.

The ECC charge applicable for Ray applies from 1 July 2017 until the day before the day on which tax under his first NOA for that FY is due to be paid, ie, 31 October 2018.

Ray must also pay SIC on the shortfall between the amount of tax that he originally paid and the amount of tax stated under his NOAA. We note that the amount of ECC charge payable as a result of the ECC increases the amount of the shortfall. The SIC is applicable from 1 November 2018 (ie, the payment due date under his original NOA) to 29 November 2018 (ie, the day before the payment due date stated on his NOAA).

Furthermore, if the amount of ECC charge or SIC remains unpaid after 30 November 2018 (ie, the payment due date stated on his NOAA), Ray will also be liable to pay GIC on any unpaid amount of income tax (which includes the ECC and ECC charge) and SIC.

For completeness, we note that the ECC charge is a tax-related liability and is not a penalty. However, and unfortunately, the ECC charge is not deductible for income tax purposes, unlike the SIC or GIC.

Refund of ECC

This article has focused on the ECC charge. For completeness, we briefly mention that an individual has a choice to either request for their ECC to be released from their superannuation fund(s) or to leave their ECC in their superannuation fund(s).

Broadly, an individual who receives an ECC determination for a FY may elect to release from their superannuation fund an amount of up to 85% of the ECC stated in the determination (TAA s 96-5(1)). An election is irrevocable and must comply with the requirements listed in s 96-5(3)-(4) and (7) of the TAA.

Once the individual makes a valid election under s 96-5, the Commissioner must issue a release authority to the nominated superannuation fund(s). Naturally, the SMSF deed must also provide the power to release such amounts and many SMSF deeds have not been updated in this regard.

One advantage of electing to release an amount of the ECC is that this amount is then grossed up (eg multiplied by 100/85) and the grossed-up amount is no longer counted in the individual’s non-concessional contributions (‘NCC’). To the extent that an individual leaves their ECC in their superannuation fund and that amount results in them exceeding their NCC cap for a FY, they will also be liable for excess NCC tax. Further consideration of the consequences of excess NCC is beyond the scope of this article.

Conclusion

The law in relation to ECC and ECC charge is a complex area of law and where in doubt, expert advice should be obtained. Naturally, for advisers, the Australian financial services licence under the Corporations Act 2001 (Cth) and tax advice obligations under the Tax Agent Services Act 2009 (Cth) need to be appropriately managed to ensure advice is appropriately and legally provided.

DBA Lawyers offers a range of consulting services in relation to individuals and advisers who have queries about the ECC and ECC charge. DBA Lawyers also offers a wide range of document services.

DBA Network has prepared a comprehensive training course which covers Contributions and excess contributions tax. This course is the only one of its kind currently available in Australia, prepared and presented by Australia’s most experienced SMSF lawyers.

*        *        *

Note: DBA Lawyers hold SMSF CPD training at venues all around. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.

For more information regarding how DBA Lawyers can assist in your SMSF practice, visit

www.dbalawyers.com.au.

12 February 2018

The Australian

5 February 2018

Stewart Oldfield

While some are calling 2017 the peak of the Australian housing market did another boom also peak but get far less attention?

For a couple of decades super has been the preferred vehicle for wealth accumulation for well off Australians, but according to some that might be changing.

Thanks to an ongoing legislative crackdown on the tax benefits of super there is a real prospect that over the next decade that Australians will direct more of their savings to homes outside of a super structure than within.

According to research house DEXX&R, retail funds held outside of super are projected to grow at 8.7 per cent per annum over the next 10 years while funds held within the pre-retirement super tax structure are projected to grow at only 6.6 per cent.

This is a big change from the past when post-GFC super funds under management was growing at 9 per cent or higher and super was the preferred tax effective investment vehicle for those on high incomes.

The switch of fund growth will have major ramifications for Australia’s financial services industry and the type of products it builds and markets to consumers.

“The days of high net worth individuals pumping money into super are pretty much over,’’ says Mark Kachor, principal of DEXX&R. “Super has peaked as anything other than its true purpose — funding working Australians in their retirement.’’

Rob Coombe, a former CEO of Westpac’s BT Financial Group and now the chairman of listed investment bond provider Austock Group, says negative investor sentiment towards super has been increasing for some time.

“People frankly don’t trust the system and are worried about putting more money into it in case the preservation age gets pushed out or the tax gets increased,’’ he said.

There were three changes introduced last year that look to have put the brakes on wealthier Australians pumping millions into super. From July 1 last year, the federal government introduced a $1.6 million cap on the total amount of super that could be transferred  into a tax-free retirement account.

It also lowered the maximum size of after-tax, (otherwise known as non-concessional) contributions to super to $100,000 a year from $180,000 a year.

Then there were changes to the size of permitted pre-tax (otherwise known as concessional) contributions to super.

The maximum size of concessional contributions to super was dropped to $25,000 per year for everyone under 75 and an extra 15 per cent contribution tax on concessional contributions was introduced for those lucky enough to be earning more than $250,000 a year (down from more than $300,000 a year).

The changes came on top of pushing out the so-called preservation age — the age at which you can access your super — announced back in 2015.

Coombe said that collectively the changes were extremely negative for wealthier Australians who had traditionally put a lot of money into super. He said the changes were going to stem flows into the super system as a preferred tax structure.

He said that even those with room to put more money into super under the $1.6m cap introduced in July were increasingly nervous about the “shifting sands” of the regulatory settings for the super regime.

Some analysts have estimated that in the current financial year there will be an additional $18 billion available to be captured by fund managers outside super.

And Coombe expects more legislative changes to super to come in the future. For instance, further delays to the age at which we can access our super.

“The government is always hungry for revenue so they are going to keep going back to the super pot,’’ he said. “That trend will continue whether Liberal or Labor, but will potentially accelerate under a Labor Party leading the country.’’

Not that change is a bad thing, according to Coombe.

“I felt that very strongly that the superannuation system in Australian had drifted away from the original intention of it when it was set up — to provide adequate retirement income for all Australians.

“In many ways … it had become a tax haven for the wealthy. People were incentivised to basically jam as much money into super as possible given the favourable tax environment.

“That era is coming to an end.

“The non-super market will explode’’.

Coombe’s Austock Group (which is changing its name to Generation Life) is preparing to launch a raft of new financial services product for Australians looking to invest outside of super.

“The best thing that happens to our business is all the bad things that happen to superannuation. So long may it last,’’ Coombe said. “In many ways I am hoping for a Labor Party to be elected.’’

For its part the federal government said at the time of announcing the $1.6m cap that only a select few people will be affected by the measure.

The average superannuation balance for a 60-year old Australian nearing retirement was $240,000 and therefore less than 1 per cent of fund members would therefore be affected by the cap.

Similarly, less than 1 per cent of fund members would be affected by the changes to the non-concessional contribution rules.

“Superannuation tax concessions are intended to encourage people to save for their retirement. They are not intended to provide people with the opportunity for tax minimisation or for estate planning,’’ the government said when announcing the measures.

Stewart Oldfield is a director of industry intelligence firm Field Research.

The Australian

5 February 2018

Glenda Korporaal

The key lobby group for the $2.3 trillion superannuation industry has warned the federal government to hold off making any more changes to super and the age pension in the May budget or risk eroding confidence in the system.

“We don’t want any more meddling with the super and age pension settings,” said Martin Fahy, the chief executive of the Association of Superannuation Funds of Australia in a budget submission to the federal government released on the weekend.

He said data put together by ASFA had shown that the changes made as a result of the 2015, 2016 and 2017 federal budgets were working to achieve the government’s goals of constraining spending on super and the pension.

“The changes the government has put in place in super and aged care in the past few budgets have given the government the outcome it was looking for,” Dr Fahy said.

“We don’t want things to be dialled down any further.

“The reforms to superannuation and the retirement system are working, but they need to be bedded down. “Stability needs to be achieved to maintain confidence in the system.”

Dr Fahy added that the changes to the asset test for the age pension, which came into effect on January last year, were “helping contain future growth in aged pension expenditures”.

The changes were estimated to cut back spending on the age pension over the period of the forward estimates by about $2.4 billion. The number of people getting the age pension has fallen from 2.57 million in December 2016 to 2.49 million in September last year

— a fall of more than 3 per cent.

“The changes to the age pension were substantial and appear to make the age pension fiscally sustainable for Australian governments in the years ahead,” Dr Fahy said.

“However, any further tightening of either the asset or the income test could leave many Australians in retirement worse off,” he warned.

Changes to the age pension system announced in the May 2015 budget cut back the maximum amount of assets a person could own and still receive a pension.

They also increased the “taper rate” — the amount of pension lost per extra dollar of assets owned.

ASFA said about 100,000 people were estimated to have lost their entitlement to the pension as a result of the changes, with another 330,000 receiving a lower age pension.

Improvements to the lower end of the asset scale saw an estimated 50,000 Australians receive a larger pension.

Dr Fahy said work done by ASFA showed that the compulsory superannuation system was working to cut back reliance by Australians on the age pension.

“Super is working and will do more of the heavy lifting to deliver retirement outcomes into the future,” he said.

He said projections done by ASFA showed that a combination of increasing super balances and the fact that people were working longer would help reduce reliance on the age pension.

Currently, about 70 per cent of people over 65 receive either the full or part pension, with 60 per cent of those getting the full age pension.

Dr Fahy said ASFA projections showed that only 30 per cent of Australians over 65 would be on the full pension by 2025.

He said it would fall further to below 25 per cent by 2055. Dr Fahy said the changes announced in the May 2016 budget on superannuation were estimated to be saving the government about $2.35 billion a year.

This was made up of $1.25bn a year saved from lower contribution caps and $1.1bn as a result of the introduction of the $1.6 million transfer balance cap, a tighter cap on post-tax contributions and changes to transition-to-retirement pension arrangements.

The 2016 budget reduced the annual concessional level of contributions from a maximum of $35,000 a year (or $30,000 a year for people under 50) to $25,000 a year.

It also increased the tax on superannuation contributions for people earning over $250,000 a year from 15 per cent to 30 per cent. (Before that, the 30 per cent tax rate kicked in for super contributions once people earned more than $300,000 a year).

The changes also cut the allowable level of post-tax contributions to super from $180,000 a year to $100,000 a year, with post-tax contributions banned once a person’s super assets reached $1.6m.

It also introduced a cap of $1.6m that could be transferred into a super fund in pension mode earning no tax, with amounts above that being subject to a 15 per cent tax on earnings.

Dr Fahy said the changes to superannuation had cut back the proportion of total tax concessions going to the highest income earners and increased the proportion of tax benefits going to lower and middle income earners.

The proportion of super tax concessions going to people on the top income tax rate fell from 13.3 per cent to 10.8 per cent.

The proportion of tax concessions going to people earning between $37,000 and $80,000 a year rose from 34.7 per cent to 36.9 per cent while the proportion of super tax concessions going to people earning between $18,201 and $37,000 a year rose from 11.9 per cent to 12.4 per cent.

“The changes (to superannuation and the age pension) have had a substantial and positive impact on budget outcomes, in terms of reducing government spending and increase tax revenue,” Mr Fahy said.

“The super tax changes have substantially reduced the tax assistance flowing to upper income earners.

Now is the time for consolidation”.