Division 293 Tax Recommendations to reduce compliance costs for defined benefit funds

30 September 2014 Senator The Hon. Mathias Cormann Minister for Finance & Acting Assistant Treasurer PO Box 6100 Parliament House Canberra ACT 2600 Dear Senator Cormann Division 293 Tax Recommendations to reduce compliance costs for defined benefit funds The Actuaries Institute is concerned about Division 293 tax end benefit cap provisions. We believe the operation of the provisions is inefficient and the end benefit provisions do not appear to work as intended. Moreover the compliance cost far out-weighs the benefit to fund members. We estimate that the end benefit cap compliance costs for funds will be in excess of $20m whereas the potential tax savings to members due to operation of the cap are in the order of $1.5m. To remedy this problem we recommend that: The disproportionate legislative compliance burden be either eliminated or substantially reduced by abolishing the end benefit cap provisions or restricting their application to a narrow set of specified circumstances; and The end benefit provisions be amended so that the defined benefits tax deferral process operates effectively. Urgent action is needed as the Australian Taxation Office (ATO) has this month begun issuing notifications to funds that effectively put the end benefit/end benefit cap compliance requirements for funds into motion. Details of our reasoning and position are set out in the Attachment. This submission follows the Institute s letter of 29 May 2014 to the Treasury and ATO in regard to Division 293 tax issues for defined benefit funds. Please do not hesitate to contact David Bell, Chief Executive Officer of the Actuaries Institute (phone 02 9239 6106 or email david.bell@actuaries.asn.au) to clarify any aspects of this submission or for any further information. Yours sincerely Daniel Smith President cc Mr Paul Tilley, Treasury; Mr John Shepherd, ATO Institute of Actuaries of Australia ABN 69 000 423 656 Level 2, 50Carrington Street, Sydney NSW Australia 2000 t +61 (0) 2 9233 3466 f +61 (0) 2 9233 344 e actuaries@actuaries.asn.au w www.actuaries.asn.au

ATTACHMENT Division 293 Tax Recommendations to reduce compliance costs for defined benefit funds CONTENTS 1. Background 2. Cost-benefit analysis of end benefit cap 3. Legislative options for end benefit cap 3.1 Recommended specified circumstances for Option 3 3.2 Need for transitional arrangements 4. End benefit provisions 4.1 Treatment of DB+DC Super Interests - Background 4.1.1 Division 293 Tax Treatment of DB+DC Super Interests for End Benefit purposes 4.1.2. End benefit cap problem 4.1.3. Restriction on payment of debt account discharge liability 5. Conclusion Appendix 1 - Compliance Cost Estimate Appendix 2 - Indication of Potential Tax Savings to Members Page 2 of 14

1. Background In brief: Division 293 tax is an additional tax of up to 15% on the concessional superannuation contributions of high income earners (as defined for this purpose) for defined benefit (DB) members, Division 293 tax is applied on notional DB contributions (as well as any accumulation benefit employer contributions) Division 293 tax on notional DB contributions is, unless voluntarily paid by the member, deferred until an end benefit becomes payable A deferred Division 293 DB tax debt account is maintained by the ATO When an end benefit becomes payable, the balance of the deferred Division 293 DB tax debt account becomes payable, subject to a maximum amount equal to the end benefit cap The end benefit cap is defined as the amount that is 15% of the employer-financed component of any part of the value of the superannuation interest that accrued after 1 July 2012 and is required to be calculated by the DB fund and advised to the ATO when an end benefit becomes payable. 2. Cost-benefit analysis of end benefit cap The notional DB contributions used for calculating a member s Division 293 DB tax are necessarily an estimate based on the design of the DB member s benefits and a specified methodology and actuarial assumptions. We understand that the rationale behind the inclusion of the end benefit cap in the Division 293 legislation was to protect members in the situation that the defined benefit they actually received was substantially lower than the benefit effectively assumed in calculating the notional contributions on which their Division 293 DB tax was determined. Whilst there is some merit in this rationale, in our assessment the cost of administering this measure is out of all proportion to the likely benefit to members in terms of potential tax savings. We estimate that the end benefit cap compliance costs for funds are in excess of $20m whereas the potential tax savings to members are in the order of $1.5m. We expect that these compliance costs will largely be passed on to employer sponsors of DB funds, with the balance absorbed by providers or passed on to members. Whilst each of the above estimates is highly approximate, in our view any reasonable estimates will put the compliance costs at a significant multiple of the potential tax savings to members. We have set out further details of our estimates in Appendices 1 and 2, along with reasons why we have concluded that the end benefit cap is only likely to apply in a small minority of cases, and in those cases the savings will often be only a relatively small percentage of their Division 293 deferred debt. Page 3 of 14

3. Legislative options for end benefit cap The table below briefly sets out the main legislative options available for dealing with end benefit caps and our comments on these options. Further comments on Option 3 are made in Section 3.1 and the need for transitional arrangements under Options 2, 3 or 4 is discussed in Section 3.2. Options for end benefit cap Comments provisions 1. No change Compliance costs unacceptably high; provisions ineffective in key cases as based on benefit at prior 30 June 2. Abolish entirely Cleanest solution; lowest cost; consistent treatment of all DB members; rough justice for a small number 3. Restrict to a narrow range of specified circumstances 4. Restrict to discretionary application by Commissioner of Taxation Enables most likely circumstances of substantial inequity to be targeted; low cost as very few cases likely to occur in practice The aim here would be to restrict application to likely circumstances of substantial inequity; more flexible but more costly and difficult to administer in practice than options 2 or 3 3.1 Recommended specified circumstances for Option 3 We understand from our discussions with Treasury personnel that the main reason for imposing the end benefit cap was to address potential cases where the benefit received was manifestly much lower than the benefit effectively assumed in the notional contributions e.g. a benefit on death with no dependants of a return of member contributions only. Whilst we think that current Superannuation Guarantee requirements mean it is unlikely such a benefit still applies for any fund, we think a suitable element of protection could be provided by the restriction of end benefit caps to the following situation: Recommended specified circumstances for option 3: if the end benefit is less than the voluntary leaving service benefit (or voluntary withdrawal benefit if the end benefit occurs after termination of service e.g. a deferred benefit) Page 4 of 14

This would deal with: (i) Cases where benefits lower than standard leaving service benefits apply in circumstances such as on dismissal or on death with no dependants; and (ii) Cases where benefits lower than standard leaving service benefits are payable on wind-up of a fund which is in an insolvent or unsatisfactory financial position. Whilst the proposed circumstances would not deal with cases where the standard leaving service benefits provide relatively low vesting, we believe such cases are relatively rare nowadays due both to Superannuation Guarantee requirements and to most DB members having substantial periods of completed service because most funds have been closed to new DB members for many years. We also note there are clearly swings and roundabouts in the treatment of DB members for excess contributions tax and Division 293 tax. In practice we expect that if end benefit caps were restricted to the proposed circumstances, end benefit cap calculations would be required in only a handful of cases, which could be handled by once-off actuarial calculations, with the vast majority of funds never requiring a calculation. Furthermore, exposure of draft regulations introducing the recommended restrictions would provide an opportunity for funds with unusual benefit structures, where they consider retention of the cap is necessary for equity purposes in certain circumstances, to make submissions about provisions which would enable the cap to cover these circumstances. Further recommendation: In order for these provisions to be effective, the end benefit cap needs to be based on the benefit actually payable (rather than the benefit at the prior 30 June) and the cap should apply to the tax debt including any Division 293 DB tax assessment relating to the period up to the end benefit cap calculation date. If option 3 or 4 is adopted, we recommend appropriate amendments are made to provide these outcomes. 3.2 Need for transitional arrangements As Division 293 tax applies effective from 1 July 2012, it is appropriate to consider whether, if Options 2, 3 or 4 were to be adopted, any transitional arrangements would be required? For example, if an end benefit became payable today, the member would be eligible for the cap would it be acceptable for this simply to be removed? Clearly any transitional arrangements would impact on the potential cost savings. In our view, provided that action is taken reasonably soon, it would be justifiable to NOT provide any transitional arrangements. We have arrived at this view after considering the following: (i) The only Division 293 DB tax assessments issued to date relate to 2012/13 (ii) For 2012/13 only, Division 293 DB tax assessments are based on notional taxed contributions capped at the concessional contribution limit of $25,000 (iii) Hence the maximum 2012/13 Division 293 DB tax is 15% x $25,000 = $3,750 (iv) It is very unlikely that the end benefit cap at 30 June 2013 or 30 June 2014 would be lower than $3,750; even in the very unlikely event that the end benefit cap did apply for a DB member exiting now any tax saving would be small in dollar terms (i.e. a fraction of $3,750) Page 5 of 14

(v) (vi) 2013/14 Division 293 DB tax will not be included in the debt account subject to the end benefit cap until the assessment is issued, which will not be until at least November 2014 and more likely some time later Even after their 2013/14 Division 293 DB tax assessment is issued, the end benefit cap is still unlikely to apply for a DB member exiting in 2014/15 because the 2012/13 Division 293 DB tax is likely to have been much lower than the benefit accrued due to the use of capped notional taxed contributions in that year (with no allowance for unfunded benefits provided in some public sector funds), so that the combined tax for the two years is still likely to be lower than the end benefit cap. Hence we have concluded that the generous approach applied to determining DB contributions for 2012/13 Division 293 DB tax assessments has created a buffer which would enable Options 2, 3 or 4 to be adopted without any transitional arrangements. 4. End benefit provisions The Institute s letter of 29 May 2014 to the Treasury and ATO raised a number of technical issues with the Division 293 tax legislation that have not satisfactorily been addressed. These technical problems include that: (a) Some members will have to pay their Division 293 tax debt accounts earlier than the legislators intended and before their defined benefit has become payable (b) Some members will not have to pay their Division 293 tax debt accounts until much later than the legislators intended and many years after their defined benefit has become payable (c) For some funds it is unclear when an end benefit becomes payable in some commonly occurring circumstances (d) Many members will not be able to use their superannuation to pay their Division 293 tax debt accounts. Problems (a), (b) and (c) and possible solutions are discussed in Section 4.1. Problem (d) and possible solutions are discussed in Section 4.2. 4.1 Treatment of DB+DC Super Interests - Background The problems largely arise because, in defining end benefit and end benefit cap, sections 133-130 and 133-120(2) of the Taxation Administration Act 1953 (TAA1953) use the term superannuation interest rather than defined benefit interest. This occurred despite the wording of S133-1 of TAA1953, which reads: Payment of Division 293 tax is deferred to the extent to which the tax is attributable to defined benefit interests from which no superannuation benefit has yet become payable. This reflects the fact that money generally cannot be released from defined benefit interests until a superannuation benefit is paid, usually upon retirement. Page 6 of 14

There are also numerous references in the Explanatory Memorandum to the Division 293 tax Bill indicating that end benefits and end benefit caps should relate to the defined benefit component of a superannuation interest (i.e. the defined benefit interest). The wording in sections 133-130 and 133-120(2) can create a major problem where a DB member with a Division 293 tax debt account has an additional accumulation (defined contribution or DC) account and the combined DB+DC benefit is treated for benefit tax purposes as a single superannuation interest, as is the case for almost all private sector DB plans. This problem impacts on: The triggering of an end benefit (see section 4.1.1) The end benefit cap (see section 4.1.2) The ability to pay the discharge debt liability(see section 4.1.3) 4.1.1 Division 293 Tax Treatment of DB+DC Super Interests for End Benefit purposes This treatment of the member s DB+DC benefit as a single interest appears to lead to the following outcomes: 1) Such members who use a release authority to pay any one or more of: a) Their Div 293 tax in respect of their DC contributions from their DC account b) Their Div 293 tax in respect of their DB contributions from their DC account c) Their excess non-concessional contributions tax from their DC account (note the member has no option in such cases) d) Their excess concessional contributions tax from their DC account e) A refund of up to 85% of excess concessional contributions from their DC account f) A refund of up to 85% of excess concessional contributions from their DB interest (from 2014/15) will have triggered an end benefit. 2) Such members who roll over or cash a part of their DC account will have triggered an end benefit. 3) Once an end benefit is triggered, there is no ability to defer future Division 293 DB tax. 4) There is no ability for a fund to pay future Division 293 DB assessments from the DB interest it must come from a DC interest which may be rapidly depleted. 5) These problems could continue for many years with DB members having to find significant amounts each year to pay their Division 293 DB tax 6) Crystallisation of the DB and transfer of the proceeds into the member s DC account may not trigger an end benefit. An end benefit may not become payable until many years after the DB ceased. We do not believe that the above outcomes would have been the intention of the legislators. The deferral mechanism would, in many cases, not work as set out in S133-1 of TAA1953. Page 7 of 14

Possible solutions to fix triggering of end benefit problem Possible solutions include: 1) Amend the TAA1953 legislation (unlikely to fit timing requirements but best long term solution); OR 2) An interpretation by the ATO which allows or requires funds to treat a single DB+DC interest as two separate interests for the purposes of Div 293 tax end benefits only; OR 3) Issue regulations under s307-200 of ITAA 1997 requiring funds and members to treat a single DB+DC interest as two separate interests for the purposes of Div 293 tax end benefits only; OR 4) Issue a legislative instrument under s133-130 of ITAA1953 to exclude the following from being an end benefit: Payments made in accordance with a release authority issued by the ATO Other rollovers and cash payments from the DC component of the super interest to which the debt account relates (where the DB interest has not been crystallised) Note that option 2 (if compulsory) and option 3 would also achieve the desirable outcome that crystallisation of a DB would be an end benefit in all cases. Option 4 would not achieve this (e.g. a DB to DC conversion would not necessarily mean a benefit has become payable from the superannuation interest). 4.1.2. End benefit cap problem The above solution options 1-3 could also be used to clarify that the end benefit cap should relate only to the DB component of a DB+DC interest. 4.1.3. Restriction on payment of debt account discharge liability Under s135-40 of TAA1953 a release authority for a debt account discharge liability may only be given to a superannuation provider that holds the super interest to which the debt account relates. This would seem to mean the release authority is unusable if that interest no longer exists. Leaving service will, in some cases, trigger the commencement of a DB pension this would generally be considered to be the same interest even though the member may have a different membership number in pension phase. If the pension is considered to be the same interest, the restriction on the fund from which the debt account discharge liability can be paid would not create any significant concerns in this instance. However, in most cases the DB is crystallised and becomes a DC interest combined with any existing DC interest. Page 8 of 14

If the DB interest is considered to be a separate interest to the DC interest, this could then be considered to be an automatic internal rollover. In such cases it would appear that it will not be possible for the member to use a release authority to pay the debt account discharge liability as the fund no longer holds the DB interest to which the debt account relates. This would make the release authority mechanism unworkable and hence we do not believe this would have been the intention of the legislators. If the DB interest is considered to be part of a single DB+DC interest, presumably this interest would be regarded as continuing when the DB is crystallised and added to the DC component. However under this approach problems will still arise as the benefit may then be: i) Rolled over to commence an account based pension in the fund (a new interest); or ii) Rolled over to another accumulation account interest in the same fund e.g. from the corporate sub-fund to the individual section of the fund; or iii) Rolled over to another fund In each of these cases it appears that it will not be possible for the member to use a release authority to pay the debt account discharge liability, since in cases (i) and (ii) the fund no longer holds the super interest to which the debt account relates and, in case (iii), the member s current fund never held the super interest to which the debt account relates. In many corporate DB funds (particularly sub-funds) it may not be possible to retain the crystallised DB in the fund until a debt account discharge liability release authority is received. Again, common practice may result in the release authority being unusable. In such cases, the member (who may be, for example, age 45) may need to find many thousands of dollars in non-superannuation monies to pay the debt account discharge liability as no relevant condition of release has been satisfied. Possible solutions would be: Amend the TAA1953 legislation to enable the debt account discharge liability to be paid from any superannuation fund/interest (best solution in the long term) OR Issue regulations under s307-200 of ITAA 1997 allowing funds, for the purpose of payment of a debt account discharge liability only, to treat: (i) the original DB interest; and (ii) a super interest (whether in the same fund or a different fund) into which a payment from the original DB interest has been made; and (iii) a super interest (whether in the same fund or a different fund) into which a payment from an interest referred to in paragraph (ii) has been made as the same super interest (being the super interest to which the debt account relates); OR An ATO interpretation that the debt account discharge liability can be paid from either the fund that held the original interest or a fund that holds any interest to which part or all of the crystallised defined benefit has been transferred (on the basis that for practical purposes this would be the same interest as it is the same money). This may be a useful short term solution. Page 9 of 14

5. Conclusion We urge that our recommendations be acted on at the earliest possible time. The longer that these matters take to resolve, the higher will be the level of unnecessary costs that funds will incur. Page 10 of 14

Appendix 1 - Compliance Cost Estimate Set out below is an outline of the types of costs that will or may be incurred to comply with the end benefit cap (EBC) requirements: Actuarial Advice on EBC formulae and process, data required, calculations of EBCs, when end benefit occurs, assistance with EBC configuration and/or testing Administration Legal Cost benefit analysis for each fund on manual vs mechanised calculations Configuration on the fund administration system of EBC formulae for each DB benefit class and relevant benefit types or establishment of manual calculation processes Establishment of required data e.g. accrued factors and balances at 30 June 2012 (may require substantial work for plans which do not update at 30 June) Configure updates of new data fields Testing configuration to ensure results are accurate; modifications required for special members Design and testing of EBC calculation statements Design and documentation of EBC calculation and reporting processes Update of standard termination letters re EBC reporting to ATO Update of DB member exit procedures and employer data requests Possible update to annual statements & web records to report EBC amount to member Checking EBCs at each review for members with deferred tax flag Quotes of EBCs Establish trustee reporting requirements Update Helpline processes and Q&A scripts to answer DB member enquiries re EBCs Prepare staff training material and conduct training Advice on EBC requirements, what is an end benefit, when an end benefit becomes payable, treatment of retained benefits etc Management Fund executive and line manager time involved in understanding and managing end benefit cap requirements and associated issues For the purpose of compliance cost estimates, we have assumed that 75 standalone funds and 325 DB sub-funds will have members with Division 293 DB tax debt accounts and therefore will require end benefit cap calculations. Page 11 of 14

We have also assumed that 5500 members will have Division 293 DB tax debt accounts initially (including public servants first assessed for DB Division 293 tax in 2013/14 due to nil notional contributions on unfunded benefits in 2012/13) and a further 1000 will incur their first assessments in future years due to salary increases and/or special circumstances leading to a spike in income which takes it over the $300,000 threshold. Hence we have allowed for 6500 end benefit cap calculations in future, with 20% of these requiring actuarial input and 10% generating material queries. Estimated implementation costs Number Estimated cost per plan of plans Actuarial Admin Legal Management Total Industry Total ($) Standalone 75 15,000 35,000 7,500 10,000 67,500 5,062,500 Sub-funds 325 5,000 12,500 1,000 2,000 20,500 6,662,500 Total 400 6,875 16,719 2,219 3,500 29,313 11,725,000 Estimated future costs relating to individual EBC calculations No. of members Cost per member Total cost ($) Admin 6500 250 1,625,000 Actuarial 1300 1000 1,300,000 Queries 650 500 325,000 Sub-Total 3,250,000 Total (see note below) 4,875,000 Note the costs allowed for in the Sub-Total do not include any allowance for EBC quotes prior to the end benefit becoming payable or for checks or responding to queries on EBCs included on annual benefit statements. To make a broad allowance for this we have increased the Sub- Total estimated cost by 50% to $4,875,000. Estimated future costs not relating to individual EBC calculations We have assumed 100 funds to allow for centralised work for master funds and allowed for 20 hours work per annum at an average of $150 per hour for maintenance of EBC procedures and information records/documents, managing fund, member and ATO communications re EBCs, staff training etc. We have assumed funds will incur these costs for an average of 15 years. No. of plans Annual Cost Years assumed Total cost ($) 100 3000 15 4,500,000 Total Estimate of End Benefit Cap Compliance Costs: $21,100,000 Page 12 of 14

Appendix 2 - Indication of Potential Tax Savings to Members The end benefit cap provisions will only result in a tax saving to a member if their end benefit cap is lower than the balance of the member s Division 293 DB tax debt account at the time an end benefit becomes payable. There are a number of reasons why we think this is likely to occur in only a small minority of cases: (i) For 2012/13 (only) Division 293 DB tax assessments are based on notional taxed contributions capped at the concessional contribution limit of $25,000; for funded benefits this means that 2012/13 DB Division 293 DB tax assessments will, for many members, be assessed on a capped notional contribution of $25,000 rather than a much higher uncapped notional contribution; for unfunded benefits the notional contribution for 2012/13 is zero and therefore nil tax applies in respect of this component; nevertheless in both cases the end benefit cap is calculated assuming the full 15% tax rate applied to the full uncapped value of both funded and unfunded benefits accrued in 2012/13 (ii) It appears that a significant number of members have voluntarily paid their 2012/13 Division 293 DB tax assessments, even though the end benefit cap is not reduced in respect of voluntary payments (iii) The operation of the threshold for the Division 293 tax means that some members will only be subject to the tax in some years, or on only part of their DB notional contributions, whereas the end benefit cap effectively assumes they are subject to the full 15% tax continuously from 1 July 2012 (iv) Based on the current legislation, the end benefit cap will often be calculated including a year of benefit accrual for which Division 293 tax has not yet been assessed and therefore is not included in the DB tax debt account to which the end benefit cap will be applied (v) For accumulation style DBs, the crediting rate added to benefits is likely to be higher on average than the 10 year bond rate interest charged to debt accounts; for salary-related DBs, the discount rate used in the calculation of the notional contributions is much higher than the current 10 year bond rate (vi) New DB members are not eligible for grandfathering of DB notional contributions for concessional contribution cap purposes and hence their DB notional contributions in excess of their concessional contribution cap will be treated as excess concessional contributions, which are not subject to Division 293 tax. This means these members will be liable for Division 293 tax only up to the concessional contribution cap, but the end benefit cap will be calculated based on their whole employer-financed benefit. As a result it is almost impossible for the end benefit cap to apply. As noted earlier, we have assumed that 5500 members will have Division 293 DB tax debt accounts initially and a further 1000 will incur their first assessments in future years due to salary increases and/or special circumstances leading to a spike in income which takes it over the $300,000 threshold. Due to (iii) as well as the other reasons, we believe it is reasonable to assume the end benefit cap will not produce a tax saving for any of the 1000 assumed to incur their first assessments in future years. Due to the other reasons, we believe it is reasonable to assume the end benefit cap will produce a tax saving for only a small proportion of the other 5500 members assumed to have Division 293 DB tax debt accounts we have assumed 5% (275 members) will receive a tax saving. Page 13 of 14

Due to (v) as well as the other reasons, we believe it is likely that only a small percentage of any such tax savings will occur at long durations e.g. 10 years plus after 2012. Due to (i) as well as the other reasons we believe it is likely that only a small percentage of such tax savings will occur at short durations e.g. 2 to 3 years after 2012. We have therefore assumed any such tax savings will on average occur after 5 years duration i.e. the Division 293 DB tax debt accounts will include 5 years of assessments plus interest. Savings are also more likely to occur for those with higher rates of DB notional contributions which are not fully reflected in their vested benefit. We have therefore assumed an average DB notional contribution rate of 15.6% (= 1.2 x a new entrant rate of 14%) for those with tax savings. Savings are also more likely to occur for those who are continuously above the $300k income threshold. We have therefore assumed an average DB salary of $400,000 in 2012/13 increasing at 4% pa thereafter. Based on these assumptions, we have estimated the average debt account on which tax savings occur will be around $50,000, calculated as follows Year DB Salary DB Cont* DB tax DB debt account** 2012/13 400,000 25,000 3,750 3,863 2013/14 416,000 64,896 9,734 14,005 2014/15 432,640 67,492 10,124 24,852 2015/16 449,946 70,192 10,529 36,443 2016/17 467,943 72,999 10,950 48,814 *Assumes grandfathering applies **Assumes interest of 3% charged at year end Our assessment is that the average savings as a proportion of the debt account will be small for the purpose of this estimate we have assumed a saving of 10% of the debt account which equates to an average of $5,000. Total Estimate of End Benefit Cap tax savings to members: 275 members x $5,000 = $1,375,000 While this is a very crude estimate, we believe it does give a reasonable indication of the order of magnitude involved. Page 14 of 14