Australian superannuation funds should be exempt from FATCA withholding obligations on this basis.

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1 7 May 2012 CC:PA:LPD:PR (REG ) Room 5205 Internal Revenue Service PO Box 7604 Ben Franklin Station Washington D.C United States of America Reg : Regulations Relating to Information Reporting by Foreign Financial Institutions and Withholding on Certain Payments to Foreign Financial Institutions and Other Foreign Entities Dear Madam/Sir, The Self Managed Superannuation Fund Professionals Association of Australia ( SPAA ) welcomes the opportunity to make a submission in relation to the proposed Foreign Account Tax Compliance Act (FATCA) regulations. SPAA s submission focuses on explaining why Australian superannuation (retirement income) funds should be exempt from the withholding obligations imposed by FATCA. The key points of this submission are: Australian superannuation funds pose a low risk of tax evasion because they are subject to strict regulation and supervision by the Australian government. Australian superannuation funds should be exempt from FATCA withholding obligations on this basis. About SPAA SPAA is the peak professional body representing the self managed superannuation fund (SMSF) sector throughout Australia. SPAA represents professionals, irrespective of their personal membership and professional affiliations, who provide advice to individuals aspiring

2 to higher levels of participation in the management of their superannuation savings. Membership of SPAA is principally accountants, auditors, lawyers, financial planners and other professionals such as actuaries. SPAA is committed to raising the standard of professional advice and conduct in the SMSF sector by working proactively with Government and the industry. In doing so, SPAA has contributed to SMSF advisors providing a higher standard of advice to SMSF trustees. This in turn has enabled trustees to make more informed decisions addressing the adequacy, sustainability and longevity of their own retirement savings. SMSFs offer trustees greater control and flexibility and have become an integral part of the Australian Superannuation landscape by providing significant and viable options for managers, business owners, executives and retail operators alike. Australian Superannuation System The Australian retirement income (superannuation) system depends on three pillars to deliver adequate retirement incomes to Australian citizens. The three pillars are: 1. Provision of a public safety net through a means tested aged pension. 2. Compulsory contributions made to superannuation funds by employers on behalf of employees to the employees account for the benefit of the employees. 3. Voluntary contributions made to superannuation funds by or for employees or other individuals and represent self-provision of retirement income in addition to compulsory contributions. Compulsory contributions and voluntary contributions fund the retirement incomes that are provided through superannuation funds. The superannuation funds which receive the contributions referred to in 2 and 3 above are subject to a strict regulatory regime imposed under federal statutes. The contributions are invested in accordance with regulatory parameters and the duty of the fund trustees is to manage investments and consequent earnings on behalf of the fund members. Ultimately, the superannuation funds pay retirement income to members only when certain conditions are met. The strict regulatory supervision of Australian superannuation funds is primarily through legislation made by the Australian government, most importantly the Superannuation Industry (Supervision) Act 1993, the Superannuation Industry (Supervision) Regulations 1993, and the Income Tax Assessment Act This legislation provides the basis for the prudential and 2

3 regulatory supervision that Australian superannuation funds are subject to. The key facets of superannuation regulation are listed below. Superannuation funds are must pass a sole purpose test, which requires that the fund exists exclusively to provide retirement benefits for members. Strict restrictions on fund activities, such as prohibition on fund borrowings, restrictions on lending and related party loans and investments. Mandated restrictions on members accessing their retirement benefits in superannuation funds (the preservation rules ). Limits on the amounts a superannuation fund member can contribute to their fund. An exclusive code that restricts tax concessions to superannuation funds that adhere to the laws. These superannuation laws are administered by the Australian Prudential Regulatory Authority, the Australian Securities and Investment Commission and the Australian Taxation Office. Self Managed Superannuation Funds SMSFs have become a popular choice of Australians who wish to take on the responsibility and control of managing their retirement savings. SMSFs perform the same role as other funds, by investing contributions and making them available to members on retirement. The difference is, generally, that the members of SMSFs are also the trustees they control the investment of their contributions and the payment of their benefits. With all SMSF members being trustees, the members are in a position to ensure their interests are protected. To be a SMSF, a superannuation fund must comply with the definition in section 17A of the Superannuation Industry (Supervision) Act 1993, which require: the fund has a trust deed that meets the requirements of the Superannuation Industry (Supervision) Act 1993; the fund has four or less members; each member of the fund be a trustee; no member can be an employee of another member of the fund, unless they are related; and no trustee can receive any remuneration for their services as a trustee. 3

4 SMSFs are generally subject to the same rules as other superannuation funds, with a few exceptions based on the close involvement of members in running the fund. SMSFs are primarily regulated by the Australian Taxation Office. The SMSF sector is the largest sector of the Australian superannuation industry, with 99% of the number of funds and 31% of the $1.34 trillion total super assets as at 30 June At 30 June 2011, there were around 456,000 SMSFs and $418 billion in assets. In the five years to 30 June 2011, SMSFs have been the fastest growing sector of the Australian superannuation industry. During this period total super assets grew by 45%, while SMSF assets grew by 89%. The SMSF sector contributed the largest proportion with 47% of the total 45% growth in super assets. Australian Superannuation Funds to be regarded as low risk of tax evasion SPAA recommends that the US Treasury exempt Australian superannuation funds from FATCA withholding obligations pursuant to section 1471(f)(4) of the Internal Revenue Code, because Australian superannuation funds present a low risk of tax evasion. SPAA makes this recommendation because: 1. Australia s retirement plan system, embodied by superannuation funds, is strictly regulated as described above. The regulation and government regulatory oversight of Australian superannuation funds ensures that the funds are not open to abuse, are not used as tax evasion tools and are compliant with rules that ensure the integrity of superannuation funds. 2. Australian superannuation funds must have a sole and exclusive purpose of providing retirement benefits for fund members. This core rule limits the activity of funds for retirement purposes only and deters those seeking to use them as tax evasion vehicles. 3. Australian superannuation funds can only release funds to members who have met specific mandated conditions, mainly the preservation rules. The preservation rules ensure that superannuation benefits are not accessed until a member has achieved their preservation age (ranging between 55 and 60, depending on when the member was born) and has satisfied a condition of release such as having permanently retired from the workforce. These conditions limit the abuse of superannuation funds as a tax evasion tool. 4. Only certain individuals are able to be a member of an Australian superannuation fund. These individuals are limited to Australian citizens, temporary Australian residents, 4

5 Australian ex-pats living overseas, and permanent residents. This limits the number of US citizens that can use an Australian superannuation fund as an investment vehicle. 5. Contributions to superannuation funds are limited to contribution caps specified by Australia s taxation laws. Amounts contributed in excess of the caps are subject to a tax penalty so that the aggregate rate of tax on the excess is 46.5%, the excess contributions tax. This tax discourages people from using superannuation funds as a vehicle to evade taxes. 6. Tax advantages for superannuation funds, principally concessional rates of taxation on certain fund contributions and funds earnings, as well as retirement benefits that are exempt from tax, depend on funds complying with the strict regulatory rules. Breaking the rules mean a superannuation fund runs a significant risk of losing access to these tax concessions. In addition, the total assets of a non-complying fund may be subject to tax of 45% and the trustees may also be subject to civil and criminal penalties. These characteristics of Australian superannuation funds make it clear that they pose a low risk of tax evasion and should be exempt from the FATCA withholding requirements. The regulatory framework and supervision that superannuation funds are subject to ensures that there is a low risk of tax evasion as funds activities are highly regulated and scrutinised by Australian government regulators. In particular, SPAA stresses the strict regulation and supervision of Australian SMSFs by Australian government regulators. The regulatory framework described above prevents SMSF trustees from undertaking activities that are consistent with tax evasion. The rate of compliance by SMSFs with taxation and regulatory laws is high. The Australian Taxation Office (the primary SMSF regulator) has recently revealed that for the audit years ended 30 June 2004 to 30 June 2009 SMSF contraventions of the regulatory rules occurred at a low rate of only 2% of all SMSFs operating in those years having contravened. Further, we would consider it unlikely that a US citizen that eligible to be a trustee of an Australian SMSF, would setup a SMSF in order to shelter income or evade taxes on US assets due to the strictness of the code and the level of government regulation of Australian superannuation funds. In summary, Australian superannuation funds present a low risk of tax evasion because they are strictly regulated by Australian law and Australian government regulatory institutions. Australian s superannuation laws and regulatory activities safeguard superannuation funds from being used as vehicles for tax evasion. 5

6 We would be happy to provide further information or to discuss our submission with you in more detail if need be. Contact Numbers: Tel: Mrs. Andrea Slattery Chief Executive Officer Mr. Peter Burgess Technical Director Yours sincerely Andrea Slattery CEO 6

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