IOOF Technical Advice Solutions Client strategies for advisers. Superannuation and death benefits in the Simpler Super environment.

Transcription

1 IOOF Technical Advice Solutions Client strategies for advisers Superannuation and death benefits in the Simpler Super environment Adviser use only

2 IOOF Technical Advice Solutions Since 1 July 2007, the tax treatment of superannuation (super) death benefits has been simplified. With the removal of Reasonable Benefit Limits (RBLs), financial advisers no longer have to consider excess benefits or calculate the rebatable portion of a pension. The usefulness of the reversionary option also appears to be minimal in the Simpler Super environment. Death benefit payments from a super fund have different taxation implications depending on whether the death benefit is paid to a death benefits dependant or a non-death benefits dependant. This strategy booklet will explain how superannuation death benefits work in the Simpler Super environment. The meaning of Dependant The laws defining who is a dependant remain unchanged in the Simpler Super environment, continuing the distinction between death benefits dependant (as defined under the Income Tax Assessment Act 1936) and SIS Dependant ( dependant as defined under the Superannuation Industry (Supervision) Act 1993). Briefly, a SIS dependant includes a spouse (married or de facto), a child of any age, and any person who was financially dependant or with whom the deceased had an interpersonal relationship. On the other hand, a death benefits dependant encompasses a spouse, including a previous spouse, any person who was financially dependant or with whom the deceased had an interpersonal relationship, and a child under 18. A child is defined under SIS laws to include adopted, ex-nuptial and step children. A super fund trustee must pay a death benefit to a SIS dependant (or the deceased s Legal Personal Representative). However, only those SIS dependant beneficiaries also considered death benefits dependants will be taxed concessionally on the benefits. The crux of this is that adult non-financially dependant children are SIS dependants, and are therefore entitled to receive super death benefits but these will be taxed.

3 Superannuation and death benefits in the Simpler Super environment How death benefits work 1. Tax-free lump sum benefits to death benefits dependants Superannuation death benefits paid as a lump sum to death benefits dependants are now entirely tax-free. If the lump sum is paid to the estate, the tax treatment follows the dependency status of those benefiting from the estate. That is, if the ultimate beneficiary is a death benefits dependant the estate will pay the super benefit tax-free. It s important to remember that an income stream cannot be paid to an estate. 2. Tax-free pension to death benefits dependants if they re aged 60 or over In a nutshell, if the deceased and/or primary beneficiary is aged 60 or over, the superannuation pension will be paid tax-free. If both the deceased and beneficiary are under 60, the taxable component of the pension income will be assessed at the beneficiary s marginal tax rate but a full 15% tax offset will apply. The proportion of taxable and tax-free components will depend on whether the death benefit proceeds were in accumulation or pension phase: Pension phase tax-free and taxable components based on tax-free and taxable proportion of purchase price at commencement of original pension by the deceased. 3. Non-death benefits dependants can only receive a lump sum Non-death benefits dependants (SIS dependants that are not also death benefits dependants) will only be able to receive super death benefits as a lump sum, regardless of whether the deceased s benefits were in pension or accumulation phase. Whilst the tax-free component will be paid free of tax, the taxable component (taxed element) will attract tax of 15%, plus Medicare Levy. The proportion of taxable and tax-free components will again depend on whether the death benefit proceeds were in accumulation or pension phase. The tax can either be withheld at super fund level or, if passed to the non-death benefits dependant beneficiary through the deceased s Will, the estate can withhold the pertinent tax. Accumulation phase tax-free and taxable components based on proportion of death benefit.

4 IOOF Technical Advice Solutions 4. Death benefits cannot be rolled over As has long been the case, super death benefits cannot be rolled over. That is, a beneficiary cannot receive a lump sum and elect to roll it into their own super. The beneficiary would need to receive the funds in their own bank account, and then make a personal contribution of the proceeds into super, subject to the standard contribution and preservation rules. The only exception to this is when the beneficiary receives a pension and elects to commute the pension outside the prescribed period in which case it will no longer be treated as a superannuation death benefit. Generally, the prescribed period is the latter or six months after date of death or three months after grant of probate or letters of administration. Importantly, under proposed amendments in Tax Laws Amendment (2007 Measures No. 4) Bill 2007, these time periods could be extended where they cannot be met due to legal action or reasonable delays in the process of identifying and contacting beneficiaries. Should this legislation be passed, this will have the effect of extending the period within which the benefit will be treated as a superannuation death benefit. From 1 July 2007, Regulation of the Income Tax Assessment Regulations 1997 dictates that commutations of a superannuation income stream that have reverted to another person on the death of the original beneficiary, cannot be rolled over within the superannuation system unless the reversionary beneficiary is the spouse of the deceased person. Pending further interpretation of this regulation, our current view is that only the spouse of the deceased is able to rollover a superannuation income stream within the superannuation system. 5. Special rules for children under 25 and permanently disabled beneficiaries If a superannuation death benefit is paid as an income stream to a child under 18 or under 25 and considered a financial dependant, the child must commute the pension at or before reaching 25 as a tax-free lump sum. A beneficiary deemed permanently disabled can commute a death benefit pension as a lump sum at any age, provided at least one income stream benefit has been paid. Assuming the death benefit is commuted outside the prescribed period, it s treated as a superannuation member benefit and will be taxed accordingly if taken as a lump sum.

5 Superannuation and death benefits in the Simpler Super environment When an untaxed element arises An untaxed element generally arises in death benefits in two situations: 1. Where a taxed fund pays out a lump sum death benefit funded by insurance (i.e. where deductions were claimed for insurance premiums). 2. From an untaxed fund, such as a public sector fund. To determine the taxed and untaxed element of a superannuation death benefit which includes life insurance proceeds, the following steps need to be followed: 1. Calculate the taxable component of the death benefit, including any anti-detriment payment. Note anti-detriment benefits are only payable to the spouse or child (of any age) of the deceased. 2. Reduce the death benefit as follows: Reduced death benefit = Death benefit x Days in service period Days in service period + days from death to retirment age 3. Calculate the taxable component of the reduced death benefit. This will form the taxed element. 4. Subtract the element taxed from the total taxable component to determine the element untaxed. When a death benefit is paid as a lump sum to a death benefits dependant, the funds will remain tax-free, irrespective of the presence of the untaxed element. However, a non-death benefits dependant beneficiary will pay 31.5% tax (including Medicare Levy) on any untaxed element. When a death benefits dependant chooses to receive a pension, any untaxed element will be fully included in assessable income and taxed at the beneficiary s marginal tax rate. If either the deceased or beneficiary are age 60 or over, they will receive a 10% tax offset on this portion of the income stream. The need for reversion Reversionary pensions have historically been utilised because of the opportunity to use the spouse s life expectancy in determining the deductible amount of both the original pension and the reversionary pension. This allowed, for example, complying pensions to retain their 50% Centrelink Assets Test exemption when continued to the spouse upon death of the primary beneficiary. With the introduction of the new taxable and tax-free super components, and the phase out of 50% exempt pensions on 20 September 2007, life expectancy has become irrelevant in calculating the tax-free proportion of the income stream and complying status. Therefore, for taxation purposes it appears there s little difference between selecting a reversionary beneficiary and completing a binding nomination.

6 IOOF Technical Advice Solutions There are two important differences between a binding nomination and a reversionary pension: 1. Whilst both a reversionary and a binding nomination will achieve the same degree of certainty, the binding nomination has the added onus of needing to be updated every three years. A reversionary pension is generally fixed and can only be changed in the event of death or divorce. 2. For Centrelink purposes, income from a pension will continue to be assessed under the Income Test as Gross Income Deductible Amount, with the deductible amount based on the purchase price divided by the life expectancy of the oldest of the primary or reversionary beneficiary. A longer life expectancy produces a lower deductible amount and therefore, a greater level of income assessed by Centrelink. Note: Upon death of the primary beneficiary, the reversionary s pension will be based on their own life expectancy when calculating potential Centrelink benefits. Tips and traps A recontribution strategy can assist in maximising the tax-free component of a client s super benefit. Whilst irrelevant when the client is drawing down a pension income from age 60 (as it s all tax-free), this can maximise tax effective estate planning if the client s planned beneficiaries are non-death benefits dependants, such as adult non-financially dependant children. Clients wanting to undertake a recontribution strategy should consider holding off until they commence a pension, in which case they will not be subject to capital gains tax on sell-down of investments in the super fund. Whilst the definition of spouse for dependant (death benefits and SIS) purposes excludes same-sex couples, they may be able to establish an interdependent relationship. Clients can consider segregating their super into two interests, thereby isolating the tax-free component in estate planning for non-dependants.

7 Superannuation and death benefits in the Simpler Super environment Example Darrell, aged 61, has $1 million in IOOF Pursuit Select Personal Superannuation (all taxable) and wants to leave part of his super to his wife Heather and part to his adult son Scott. Darrell undertakes a cash out and recontribution strategy and withdraws $450,000 (all tax-free as he is over 60). He recontributes this money into a second account in the IOOF Portfolio Service. He commences two allocated pensions one with a balance of $450,000 (tax-free) and the other $550,000 (taxable). He nominates Heather as the beneficiary on Pension 1 ($550,000) and Scott on Pension 2 ($450,000). Upon his death, Heather can receive a tax-free lump sum or pension from the remaining balance of Pension 1, and Scott can enjoy a tax-free lump sum from Pension 2. Self Managed Super Funds (SMSFs) are not able to segregate tax-free and taxable components into separate accounts as described in the example above, as all accumulation accounts within the SMSF will be counted as the one interest. Clients in this situation wanting to maximise tax effectiveness for estate planning purposes could consider contributing part of their super into a public offer super fund, or setting up a second SMSF in order to create multiple super interests. If a pension paid to a death benefits dependant beneficiary is commuted subsequent to the latter of six months of death or three months probate, the lump sum benefit is taxed as a superannuation member benefit to the beneficiary. If there is an untaxed element in the death benefit (for example, arising from insurance proceeds), the beneficiary will be subject to taxation of 46.5% if the untaxed plan cap amount of $1 million is exceeded. If a spouse of the deceased receives a death benefit in the form of a pension, and commutes outside the prescribed period, they may be eligible to rollover the funds back into accumulation phase. This strategy could be beneficial for a number of reasons. For example, a spouse that was ineligible to contribute to super, or had exceeded their non-concessional cap, could maximise their funds held in super, especially if they did not need the additional pension income, or were under age pension age and wanting to maximise Centrelink benefits.

8 IOOF Technical Advice Solutions Case Study Amelia is 52 and has $500,000 in super and a life insurance policy of $500,000 owned by her super fund. She has an ex-husband Colin and two children Emmy (aged 20 and financially dependant) and Peter (aged 30). The service period of her super fund is 1 January 1980, and she has no nominations in place on her super fund. On 1 January 2008, Amelia dies one day before her 53rd birthday. The trustee has discretion as to how and to whom to pay out Amelia s benefit. As the only two SIS dependants are Emmy and Peter, the Trustee decides to split the benefit equally between the two children. The death benefit, including the life insurance proceeds, is determined to be $200,000 tax-free (20%) and $800,000 taxable (80%). Therefore, the reduced death benefit = Death benefit x Days in service period Days in service period + days from death to retirement age (65) = $1,000,000 x 10,228 10, ,382 = $700,068 Taxable component of reduced death benefit = $700,068 X 80% Therefore, taxed element = $560,055 Therefore, untaxed element = $800,000 $560,055 = $239,945

9 Superannuation and death benefits in the Simpler Super environment Components of super death benefit of $1 million are: - Tax-free component = $200,000 - Taxable component (taxed element) = $560,055 - Taxable component (untaxed element) = $239,945 The trustee pays out the benefit as follows: Peter receives a lump sum of $500,000 and is taxed as follows: - Tax-free component of $100,000 is tax-free - Taxable component (taxed element) of $280,028 taxed at 16.5% = $46,205 - Taxable component (untaxed element) of $119,973 taxed at 31.5% = $37,791 The super fund withholds the tax and pays Peter a net lump sum of $416,004. Emmy receives a pension with a balance of $500,000, with an income stream of $20,000 p.a. and is taxed as follows: - Tax-free payment of $4,000 p.a. is tax-free - Taxable component (taxed element) of $11,201 p.a. is assessed at marginal rate but 15% tax offset applies. - Taxable component (untaxed element) of $4,799 p.a. is assessed at marginal rate. Emmy must commute her pension tax-free before or at age 25.

10 IOOF Technical Advice Solutions Conclusion With the abolition of RBLs, understanding taxation of death benefits paid from super is now a lot less complex (perhaps with the exception of any untaxed element). As has long been the case, non-dependant beneficiaries continue to be subject to tax on any taxable components. This allows financial advisers to assist their clients in minimising the taxation implications upon death. Contact your IOOF Business Development Manager to obtain a copy of IOOF s Superannuation Death Benefits Chart, which portrays the new rules.

11 Superannuation and death benefits in the Simpler Super environment

12 This booklet has been prepared on behalf of IOOF Investment Management Limited, ABN , AFS Licence No , RSE Licence No. L (IOOF), and is for adviser use only. The information contained in this booklet is given in good faith and is believed to be correct at the time of publication, but no warranty of accuracy or reliability is given and no responsibility arising in any other way for errors or omissions (including responsibility to any person by reason of negligence) is accepted by IOOF, its officers, employees, directors or agents. This booklet has been prepared as general advice only as it does not take into account a person s individual objectives, financial situation or needs. The booklet is not intended to represent or be a substitute for specific financial or investment advice and should not be relied on as such. All assumptions and examples are for illustration purposes only and are based on the continuation of present laws and IOOF s interpretation of them. IOOF does not undertake to notify recipients of the booklet of any changes in the law or its interpretation.