Superannuation and Residency Fact Sheet - October 2014

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1 Superannuation and Residency Fact Sheet - October 2014 A change in residence has significant implications for superannuation. A number of issues arise when an individual relocates overseas whether temporarily or permanently. The most important issues relating to superannuation are: eligibility to contribute eligibility for co-contribution preservation tax deductibility of superannuation contributions taxation of superannuation benefits self-managed superannuation funds. Eligibility to contribute When an individual leaves Australia they can continue to contribute to super under the usual contribution rules, even if they become a non-resident. Regardless of their residency status, they can contribute to an Australian super fund if they are: under age 65 between age 65 and 74 and gainfully employed for at least 40 hours in a 30 consecutive day period. Gainful employment is not confined to activities in Australia. Gainful employment includes work done overseas. Non-residents can also make spouse contributions. However, to claim the spouse tax offset, both the taxpayer and the spouse must be Australian residents for tax purposes at the time of making the contribution. All employer contributions are assessable income of a superannuation fund regardless of whether the employer is an Australian resident or non-resident, and therefore are subject to 15% contributions tax. Provision of TFN Member contributions A super fund must not accept any member, spouse contributions or government co-contribution if the member s TFN has not been quoted to the trustee of the fund. The fund must return the amount to the person within 30 days of becoming aware that it doesn t have their TFN. Asteron Life 1

2 Contributions other than member or spouse contributions Where no TFN has been provided, all assessable contributions made during the financial year will be taxed an extra 32%. Note: The additional 32% tax applies equally to residents and non-residents. Super Guarantee (SG) Employers of individuals who are temporarily visiting and working in Australia may have an SG obligation. The SG Act imposes an obligation on employers to contribute on behalf of all employees with the following exceptions: employees who earn less than $450 per month foreign executives on certain types of visas or entry. Two other notable exceptions include: non-resident employees for work done outside Australia, and resident employees paid by non-resident employers for work done outside Australia. Eligibility for co-contribution For an individual to be eligible for the Government co-contribution, they must: make non-concessional contributions earn at least 10% of total assessable income (ie. income assessable in Australia) plus reportable fringe benefits and reportable employer superannuation contributions) from carrying on a business, or from eligible employment (activities which qualify the individual as an employee for SG purposes) or a combination of both be under age 71 at the end of the financial year have adjusted taxable income less than $49,488 (2014/15) not have held a temporary resident visa at any time during the year lodge an Australian tax return. An employee is an individual who receives payment in the form of salary or wages in return for work or services rendered. The question as to whether an individual can be an employee for SG purposes does not depend on: whether the individual s employer has an SG obligation or where the employment occurs (in or out of Australia). A non-resident s assessable income includes income earned from sources within Australia. Income attributable to employment outside Australia is not assessable in Australia and is therefore not counted as income from eligible employment for the purpose of the 10% test, therefore, it would be difficult for a non-resident to qualify for a co-contribution. For a non-resident to be eligible, they would need to lodge an Australian tax return. Also a non-resident who holds a temporary visa would not be eligible. Preservation Preserved benefits Permanent Australian residents are not permitted to access their preserved superannuation benefits on the basis that they permanently depart Australia. They must satisfy a condition of release such as retirement or permanent incapacity. Similarly, individuals cannot roll their superannuation benefits overseas (except to New Zealand). Satisfaction of a condition of release under grounds of severe financial hardship requires that the individual has been in receipt of a Commonwealth income support payment for a prescribed period of time. A Commonwealth income support payment is not extended to include an overseas government welfare payment. Restricted non-preserved benefits In many cases relocation overseas involves a termination of employment and this will trigger a condition of release for restricted non-preserved superannuation benefits, subject to the employer having contributed to the same superannuation fund at some time. Unrestricted non-preserved benefits Unrestricted non-preserved benefits are accessible at any time. These benefits can be accessed upon departure from Australia as a lump sum or an income stream. Alternatively, the benefits can be maintained in the superannuation accumulation phase indefinitely and importantly, remain concessionally taxed at 15%. Asteron Life 2

3 Tax deductibility of superannuation contributions Individuals A non-resident can contribute to super. They may be able to claim a tax deduction for those contributions if they meet the conditions for deductibility. If an individual is engaged in activities that result in them being treated as an employee for SG purposes, then less than 10% of the individual s assessable income, reportable fringe benefits and reportable employer superannuation contributions must be attributable to that employment. However, if an individual derives no income from employment-related activities as an employee they do not have to satisfy the 10% test. The 10% rule is only relevant to an individual who has employment and other income. It would appear, therefore, that a deduction would be available to a non-resident on this basis. A non-resident who works outside Australia and has no Australia-sourced income will have no assessable income, reportable fringe benefits, or reportable employer superannuation contributions for Australian tax purposes. However, a tax deduction cannot exceed an individual s taxable income (before taking into account the contribution deduction) nor can it create or increase a tax loss, and this would preclude a non-resident from claiming a tax deduction. A non-resident who does have Australian-sourced income (such as income not subject to withholding tax or otherwise exempt eg rental income) may be entitled to a tax deduction similar to a resident investor who only earns passive income. Importantly, the deduction would be limited to the individual s taxable income (eg net rental income) and of course the concessional contribution limit would also apply. Due to the complexity of this area, specialist tax advice and/or a binding ruling should be sought if tax deductibility is sought. Employers An employer is entitled to claim a tax deduction for contributions to a complying superannuation fund for the purpose of making provision for superannuation benefits for eligible employees. An eligible employee is deemed to be: a person employed by the taxpayer (employer) and engaged in producing assessable income of the taxpayer, or a person who is a resident of Australia engaged in the business of the taxpayer (employer). Therefore, an eligible employee includes an employee employed in the business of an Australian-based employer and a resident of Australia employed in the business of the employer operating outside Australia. An employer can claim a tax deduction for contributions made in respect of both resident and non-resident employees if the employees are employed in a business that is located in Australia. However, where the business of the employer is carried on outside Australia and does not produce assessable income in Australia, the employer can only claim a tax deduction for contributions made in respect of employees who are residents of Australia. Taxation of superannuation benefits Where a non-resident individual satisfies a condition of release and receives their superannuation benefits held in an Australianbased superannuation fund, the benefit will be taxed as a superannuation lump sum: if under age 60, the taxable component will be included in the non-resident s assessable income and taxed at the normal lump sum rates. If a TFN is not supplied, the taxable component will be subject to tax at 45% (Medicare levy does not apply to non-residents) if aged 60 or over, any taxable component is paid tax-free and will not be included in assessable income (regardless of wether a TFN is supplied) the tax-free component is paid tax-free. There is nothing to prevent a non-resident from commencing an income stream (subject to a satisfaction of condition of release). An Australian-sourced income stream paid to a non-resident under age 60 will be taxed at non-resident rates and in accordance with a double Tax agreement (DTA), if one exists. Income payments to a non-resident age 60 or over will be non-assessable, non-exempt income under Australian taxation rules. Departing Australia superannuation payment Temporary residents who enter Australia on a temporary visa can access their superannuation benefits when they depart Australia permanently and their visas expire or are cancelled. If they withdraw their super benefits under this condition, their benefits will be taxed as shown in the next table. Asteron Life 3

4 Component Tax Rate Tax-free component 0% Taxable component (taxed element) 38% Taxable component (untaxed element) 47% Self managed superannuation funds (SMSFs) Tax issues can arise for individuals who operate their own SMSFs and relocate overseas. To remain concessionally taxed the SMSF must be a complying super fund and satisfy a residency test. A non-resident fund is taxed at 45% on the net market value of the assets in the fund. It is a requirement of residency of a fund that more than half the benefits are held by Australian resident active members. Active members are those who contribute, have contributions made on their behalf or receive rollovers. If a member becomes nonresident and holds more than half of the benefits in the fund, contributions should not be made by them or on their behalf while they are a non-resident. A fund can maintain its residency status where the trustees are temporarily outside Australia for a period of not more than 2 years thus satisfying the requirement that the central management and control is currently in Australia. If the intention is to relocate indefinitely, the trustee(s) may need to resign, appoint an independent trustee or appoint an LPR (who holds an enduring power of attorney) to act on their behalf as trustee for the period they are overseas. Alternatively, super may be rolled to a public offer fund where residency issues do not arise. Temporary resident s super Releasing benefits from a super fund Access Since 1 April 2009, money can only be released to a former temporary resident as a result of: temporary incapacity permanent incapacity terminal illness death, or the former temporary resident* permanently leaving Australia (known as a departing Australia super payment (DASP) *Held a temporary visa as defined under the Migration Act. Tax If the super benefit is paid from the super fund, the applicable tax will be withheld according to which condition of release is met. Super benefits paid under any of these grounds are taxed as normal super lump sums or income streams. Transfer to the Australian Tax Office (ATO) A super fund must transfer temporary resident s super as unclaimed money to the ATO if: the former temporary resident has left Australia, and their temporary visa ceased at least six months ago. The transfer will not apply to: permanent residents Australian or New Zealand citizens individuals applying for permanent residency, or individuals holding a temporary, permanent or prescribed vise. In addition, if an income stream has already been commenced or where a request has been received by the super fund upon satisfaction of a condition of release by the temporary resident, these benefits are not required to be transferred to the ATO. Asteron Life 4

5 Releasing super benefits from the ATO If a payment is made by the ATO to a temporary resident or their beneficiary, it will be treated as a DASP and taxed accordingly. If a temporary resident becomes a permanent resident, the ATO can rollover the money to their nominated super fund. The amount will be grossed up to allow for interest at the 10-year bond rate. DASP tax will be withheld by the ATO before the rollover and the amount will become part of the tax-free component. Therefore, if a subsequent payment is made from the fund to the member, the benefits will not be taxed twice. Tax payable on DASPs Regardless of whether a departing Australia super payment is paid from a super fund or the ATO, it will be taxed as follows: Component Taxable (taxed) Taxable (untaxed) Tax-free Tax rate 38% 47% nil Example - former temporary resident becomes a permanent resident Edward, aged 54, is former temporary resident who departed Australia after his visa expired 12 months ago. His super was transferred to the ATO four months ago. Edward has since become a permanent resident of Australia and requests the ATO to rollover his money into a super fund of his choice. Edward has $20,000 in super all taxable (taxed) component. The ATO will add interest at the 10-year bond rate for the amount of time the money is held with the ATO. If for example the 10-year bond rate is 4%. An amount of 4% x 4/12 x $20,000 = $267 is added to the balance. This is a taxable (untaxed) component and taxed at 47% to become a tax-free component. In addition, the taxable (taxed) component is taxed at 38% to become tax-free component. The net effect is that $13,147 (55% x % x 20,000) is rolled over to the super fund as tax-free component. By this time, Edward has turned 55 and permanently retires. Edward can withdraw $13,147 from the super fund without incurring any further tax. Contact Details Technical Services Suncorp Portfolio Services Limited ABN AFS Licence No For more information on Asteron product solutions, please contact the Sales Manager in your State. NSW/ACT Level Kent Street Sydney NSW 2000 T NSW callers outside Sydney: VIC/TAS Level Collins Street Melbourne VIC 3000 T VIC callers outside Melbourne: QLD Level Wickham Terrace Brisbane QLD 4000 T QLD callers outside Brisbane: SA/NT Level Grenfell Street Adelaide SA 5000 T SA callers outside Adelaide: WA Level William Street Perth WA 6000 T WA callers outside Perth: Important note The information contained in this publication is of a general nature only and is intended for use by financial advisers or other licensed professionals only. it must not be handed to clients for their keeping nor can any copies of sections of this publication be given to clients. The information has been compiled based on regulatory policy at the time of writing. We recommend that your client refer to their professional tax or legal adviser prior to implementing any recommendations you may make based on the information contained in the publication. 10/2014

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