How SMSFs should plan for $1.6m pension cap

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Much has been written about the Government’s superannuation changes, in particular the $1.6 million cap on the transfer into the tax-free retirement phase. The legislation shows how the Government wants the cap to work in practice and highlights what SMSF trustees should be aware of ahead of its introduction on 1 July 2017.

The transfer balance cap in brief

Under the legislation, if you don’t already have a pension account, you can transfer a maximum of $1.6 million from your accumulation accounts into the pension phase once you choose to retire. This applies as a total across all your super accounts and not per fund. There will continue to be no limit on the amount you can hold in an accumulation account that is taxed concessionally at 15%, regardless of your age.

Everyone starts 1 July 2017 with a transfer balance cap of $1.6 million. As monies are transferred into the pension phase, those amounts will apply against this cap. Your transfer balance will be indexed proportionately each year in line with the overall transfer balance cap. For the purposes of the cap, defined benefit pension interests will be valued based on special rules outlined in the draft legislation. For most defined benefit pensions, this is expected to be the annual payment multiplied by a factor of 16.

If you already have a pension account at the start date, you will need to determine the total value of your pension interests and assess this against the transfer balance cap. If the balance is less than $1.6 million, you can use any remaining cap to transfer more capital into the pension phase in the future. If the value of your pension interests is greater than $1.6 million at the start date you are required to withdraw the excess either by rolling back to accumulation phase or withdrawing the excess from superannuation, or a combination of both.

After 1 July 2017, pension balances in excess of the cap can be subject to an excess transfer balance tax. This will initially be the 15% tax that should have been paid on earnings had the money been in the accumulation phase, but based on notional rather than actual earnings. The penalties become more punitive if you do not rectify them in good time.

Transitional arrangements

The legislation recognises that commuting exactly the right amount to bring your pension balance under the cap immediately on 1 July 2017 may be difficult. As such, there is a grace period where amounts of up to $100,000 over the cap will not incur the excess transfer balance tax provided the breach is rectified within six months. This doesn’t give a lot of time for trustees to finalise their 2017 accounts to determine their 30 June 2017 pension balances.

Relatively generous transitional arrangements regarding capital gains tax means much of the panic over realising significant gains ahead of the new regime is likely to be unwarranted. In effect, the provisions allow SMSF trustees to reset their cost base on assets currently supporting pensions on 1 July 2017. This means that funds will not have to pay capital gains tax on capital gains made on these assets prior to the start date should they have to roll them back to accumulation phase to meet the new cap.

Planning ahead

Where SMSF trustees have pension phase assets greater than $1.6 million, they will effectively have two choices:

  • Commute the excess from pension back to accumulation phase, keeping the assets in the fund but now subject to a 15% tax rate on earnings; or
    .
  • Withdraw the excess from superannuation and invest it outside of super where earnings will be taxed at the individual’s marginal tax rate (or alternative tax arrangement).

The tricky aspect of this decision is that once you withdraw the money from super there may be very limited capacity, if any at all, to get the money back in. This will often be an irreversible decision.

From a tax perspective it looks relatively easy to assess whether you will be better off having these excess assets in super paying 15% on earnings versus outside of super at your marginal tax rate. However, offsets available to pensioners can often make your effective tax rate lower than your marginal rate. The gradual withdrawal of these offsets can also make your marginal tax rate significantly higher for certain income bands. To further complicate the decision, what is better today may not be better down the track depending on investment performance, spending decisions and legislative changes.

Trustees will need to weigh up their options and make a choice before the start date. If the decision is to keep assets in superannuation, which for those on the highest marginal tax bands may be reasonable, then it will be useful to re-assess this regularly and move assets outside super if non-superannuation assets decrease and there is capacity within the generous personal tax offsets to accommodate greater income without paying additional tax.

Placing assets in accumulation versus pension

Many SMSF trustees will be thinking about which assets to place in accumulation and which in pension to obtain the best tax outcome. However, it will make little or no difference. Where an SMSF has a member with super assets in excess of the cap (in any super fund), the SMSF will not be able to segregate assets for tax purposes. This means that all the fund’s assets are assumed to be held in one unsegregated pool. An actuarial certificate will be needed to determine what proportion of all fund earnings is tax exempt and what proportion is subject to 15% tax.

The Government has introduced this new measure to stop funds from cycling assets between segregated pools for each phase to avoid capital gains tax. It’s worth noting that trustees can still notionally allocate different assets to different members or accounts if they want to adopt different investment strategies.

Conclusion

For those likely to have super balances at or over $1.6 million by 1 July 2017, there is plenty to think about, and it’s important to understand the rules and plan well before next financial year.

 

Doug McBirnie is a Senior Actuary at Accurium. This is general information only and is not intended to be financial product advice. It is based on Accurium’s understanding of the current superannuation and taxation laws. No warranty is given on the information provided and Accurium is not liable for any loss arising from the use of this information.

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32 Responses to How SMSFs should plan for $1.6m pension cap

  1. stefy November 17, 2016 at 2:20 PM #

    I have $1.4 million in pension phase in my SMSF. I also get a CSS public service pension of $28000/year. A friend told me that the CSS pension is added to the SMSF amount by a factor of 16. This adds another $448000 to my $1.4m. Is this correct? I hadn’t heard about this previously.

  2. Denzil November 17, 2016 at 2:38 PM #

    That is correct. Has had some publicity but not as much as other changes.

  3. Ramani November 17, 2016 at 2:55 PM #

    A useful alert. Thank you.

    The ability to use 30 June 2017 market values to re-set the cost base: is this optional or compulosry, and can a SMSF choose this basis for some assets but not others (for example, when the 30/6/17 value is less than cost)?

    • Rob November 17, 2016 at 3:32 PM #

      What???
      Who said anything about re-setting the cost base of assets? The cost base of any asset will not change as a result of these changes.

    • Doug November 17, 2016 at 3:55 PM #

      Hi Ramani

      Our understanding of the draft legislation is that re-setting the cost base will be optional on an asset by asset basis. Funds will need to elect which assets to reset prior to lodging their 2017 annual return and that choice can’t then be revoked.

      • Neil November 23, 2016 at 8:10 PM #

        What form does this election need to take. Is a minuted trustee decision suitable? OR As your reply seems to indicate, will there be some form of formal election incorporated ont the 2017 annual return?

  4. Doug November 17, 2016 at 3:07 PM #

    Hi Stefy

    Your friend is correct – as the legislation is currently drafted, your defined benefit pension is likely to be multiplied by a factor of 16 and counted towards your transfer balance cap.

    If on 30 June 2017 your only super interests are your $28,000 p.a. CSS pension and $1.4m in an account based pension in your SMSF, your total pension balance to assess against the cap would likely be $1.848m. If your CSS pension is non-commutable (i.e. you can’t cash it in), you are likely to need to make the adjustment to your SMSF pension to get your overall balance back below the cap. You may need to either commute the excess $248,000 back to accumulation or withdraw it from your SMSF altogether.

    It would be worth talking to your adviser or accountant about the best option.

  5. Peter Lang November 17, 2016 at 3:34 PM #

    “Where an SMSF has a member with super assets in excess of the cap (in any super fund), the SMSF will not be able to segregate assets for tax purposes.
    This means that all the fund’s assets are assumed to be held in one unsegregated pool.”

    If one member is over the $1.6 m limit and one is under, will the member who is over be able to withdraw funds from one of their ACB accounts to bring that member’s balance below the limit?

    • SMSF Trustee November 18, 2016 at 9:26 AM #

      “Where an SMSF has a member with super assets in excess of the cap (in any super fund), the SMSF will not be able to segregate assets for tax purposes.
      This means that all the fund’s assets are assumed to be held in one unsegregated pool.”

      I presume this is saying that the SMSF can’t allocate some assets to accumulation fund and some to pension fund, but must pro-rata all assets. My SMSF platform currently does just this, with two members each having the two accounts, but it’s just one portfolio of funds and assets behind all of them.

      Would be helpful to get that confirmed.

      This is, of course, exactly the right way for the ATO to treat this. Super funds aren’t meant to be tax planning vehicles except to the extent that super itself offers some tax benefits. Playing the system down to the specific asset level should not be possible.

  6. Bruce November 17, 2016 at 5:43 PM #

    I had also not heard of the changes to the treatment of CSS pensions. If my CSS pension is $50,000 and I have $2.2 in my SMSF, I shall need to transfer $1.4m back into the accumulation phase. Given that the CSS pension supports both my wife and myself is there some way of transferring all or part of my CSS pension to my wife? My wife will not reach 60 for another 10 years.

    When I have to withdraw more than 6% of the value of the fund each year, will the CSS pension be increased accordingly, or do I have to find the difference from the balance of money in my SMSF?

  7. John November 17, 2016 at 5:57 PM #

    Hi Stefy, The Exposure Draft of the Fair and Sustainable Superannuation Bill 2016 implies that in addition to the tax you pay now on your CSS Pension (marginal rate less 10% offset), you will also pay tax on earnings/cap gains on the deemed excess in your SMSF above the $1.6m lifetime transfer cap. i.e. tax on income you will never receive as the funds are not in your SMSF. Your CSS pension rate is likely circa 10% of the inaccessible Future Fund capital that supports it (mine is 9.55%), so the factor of 16 is harsh. Happy to be corrected.

  8. Randall November 17, 2016 at 6:21 PM #

    Thanks for the article Doug as it provides what I think is a good summary of the potential policy as it enters the Parliament. And looking at responses, I agree now is the time to look at implications. I think you could have gone further into future planning implications since, as far as I currently understand it, a lot of us will not only have to plan through the July 2017 changes but quite a few dual family member smsfs will one day have to go through the loop again when a member dies. Today we can sit with the idea of having a reversionary pension passing over to the remaining spouse/member but in the new regime that remaining member will have to re-scope their super to again get below the single member $1.6m limit of the day. So a couple each with >$800,000 in super now or a combined total over $1.6m will eventually have a planning problem.
    Finally for Peter, think you may be stuck unless you can meet current super contribution rules. If non working and over 65, then cannot be done.

  9. Ramani November 17, 2016 at 6:45 PM #

    Rob

    As I understand it, you are right and wrong (I am wrong and right) taking respectively the accounting and taxation (capital gains, carried forward loss) treatments.

    Life in super may or may not be super, as pensions entail tensions. No one claimed that it is meant to be easy: how else could we employ so many – digging multiple holes and refilling them?

  10. Vince November 17, 2016 at 7:45 PM #

    Great article, Doug. I point out that It is defined pensioners receiving over $100k who are in a difficult position because they are unable to convert part of their pension back to a lump sum and therefore avoid the extra tax burden proposed. Had they known that a factor of 16 was to be applied, they would most likely have taken funds out of the scheme to avoid exceeding the 16 multiple, and used that money to fund other obligations. From that perspective, it is clearly retrospective legislation that is proposed.

    Also, most CSS defined benefit pension recipients already pay tax on the indexed portion of their pensions. Seems very unreasonable that they should be taxed again simply because the Australian Government – unlike the obligation imposed on other employers – did not bother to fund their scheme throughout their working lives.

  11. Simon Taylor November 18, 2016 at 1:51 AM #

    First decent article with a bit more meat about segregation of assets and capital gains issues for those who will have to have some assets in the pension and the rest in accumulation. I was expecting to be able to specify certain assets for the tax free pension but this now appears not to be the case. Disappointing from planning and performance perspective but easier to do to just split the combined pool. Thank you. Look forward to more on CuffeLinks.

  12. Dean Tipping November 19, 2016 at 10:02 AM #

    Good article Doug…still plenty to play out too by the look of it.

  13. Maxwell November 21, 2016 at 11:43 AM #

    Thank you Cuffelinks. The best and clearest article/explanation that I have read on this subject. it is still very complex but with your website and your contributors/responses it will become understandable.

  14. Malcolm Chandler November 21, 2016 at 3:26 PM #

    Is my understanding of the documents on the Gov Superannuation Reforms website correct? The $1.6M is called a Transfer Balance Cap which looks to mean the cap on the funds that can be transferred in and not just a balance cap.

    It states: “Subsequent earnings on balances in the retirement phase will not be capped or restricted.”

    If the pension minimums do not change then from 65 to 74 years the minimum draw is 5%, so if investment returns beat 5% then they can be retained in the Pension account.

    Equally, if the pension draw is more that earnings and $1.6 has already been transferred then it can’t be topped up.

    Can funds be drawn from the accumulation account?

  15. Victoria November 29, 2016 at 2:10 PM #

    “Where an SMSF has a member with super assets in excess of the cap (in any super fund), the SMSF will not be able to segregate assets for tax purposes. This means that all the fund’s assets are assumed to be held in one unsegregated pool.”
    I understand that this has been discussed above, but I am still confused. This comment appears contrary to many other professionals stated interpretation, who are discussing what types of assets should go into Pension & Accum, thus confining that the Pension and Accumulation are 2 different funds treated differently in regards to tax. My husband and I have always had 2 formally segregated pensions each, each of our concessional and non-consesstons funds being segregated. This would mean that these fund are now blurred and the non-concession funds not 100% non-concessional. Please would you elaborate.

    • Melanie Dunn November 30, 2016 at 2:47 PM #

      Hi Victoria,

      I am glad you found our article thought provoking. If any member of your SMSF has total superannuation assets (across all superannuation funds, not just the SMSF) greater than the pension transfer cap of $1.6m then the SMSF will no longer be able to employ a segregated asset approach for tax purposes.

      If your SMSF is currently fully in pension phase with four different pension interests, each with separate assets segregated to support those pension interests, and you or your husband have total super assets greater than $1.6m, then there two key implications to consider:

      – At 1 July 2017 each member will only be able to have a total of $1.6m in pension phase across all their super accounts. If you only have the SMSF and no other super, then amounts in excess of $1.6m for each member will need to be rolled back to accumulation phase, creating an accumulation interest for each member, or alternatively withdrawn from superannuation. You can decide from which pension (or a combination) each member commutes this amount from.

      – If assets are rolled back to accumulation phase the SMSF will have both pension and accumulation interests and the fund will no longer be able to employ a segregated approach for tax purposes. It could do so for investment purposes. An actuarial certificate will be required each year in order to claim exempt pension income in the annual tax return using the unsegregated method.

      If you have established separate pension accounts within the SMSF for estate planning purposes you will need to consider which pension is most appropriate to partially commute back to accumulation phase, if required, to meet the requirements of the $1.6m cap.

      I can’t provide personal advice so you might like to talk to your adviser or accountant about the best option.

      Melanie
      Accurium

  16. SMSF Trustee December 1, 2016 at 8:41 AM #

    Thanks Melanie, your answer to Victoria also answers my earlier question.

    So, we can have different assets in a pension fund and an accumulation fund within the SMSF if we wish to for investment reasons. But the ATO will look at the total SMSF (and other super if we had it) and work out the tax payable on each fund, and proportion those.

    So if my accumulation fund has to pay the full 15% on earnings and the pension account owes 5% of earnings, and the accumulation account is 25% of my SMSF, then the SMSF will pay (15% x 0.25) + (5% x 0.75) of all the earnings as tax.

    This makes some sense. It prevents me manipulating the pension vs accumulation distinction to minimise my tax somewhat artificially, but allows me to have, say, all my income assets in the pension account so that the pension payments are easily funded by cash flows from interest earnings if that’s what I prefer. I can manage my overall portfolio exactly as I wish, but without any tax arbitrage opportunities.

    Given my portfolio, my personal choice will be to continue to be unsegregated, but for others this could be an issue.

    • Stephen January 7, 2017 at 2:27 PM #

      There is still some time before 1st July to get further clarification on the new government legislation but at the moment it is somewhat confusing.

      This…
      “After 1 July 2017, pension balances in excess of the cap can be subject to an excess transfer balance tax. This will initially be the 15% tax that should have been paid on earnings had the money been in the accumulation phase, but based on notional rather than actual earnings. The penalties become more punitive if you do not rectify them in good time.”

      And then this…
      “Where an SMSF has a member with super assets in excess of the cap (in any super fund), the SMSF will not be able to segregate assets for tax purposes. This means that all the fund’s assets are assumed to be held in one unsegregated pool. An actuarial certificate will be needed to determine what proportion of all fund earnings is tax exempt and what proportion is subject to 15% tax.”

      Thanks for the thought provoking article.

  17. Geoff December 1, 2016 at 4:38 PM #

    I have a css hybrid defined benefit pension that has three components which will count towards the 100k cap: a taxable taxed component, a tax free component; and an unfunded indexed component. The first two of these are currently tax free if you are over 65 and the unfunded component will be fully taxed less 10%offset for the amount in the cap and full-taxed for any amount in excess of the cap. Can you comment whether the two tax free amounts will continue to be tax free?

    L

  18. Bruce S December 21, 2016 at 3:39 PM #

    There has been no mention of the effect on “grandfathering” the Seniors Health Care Card caused by having to reduce the pension assets to $1.6M. If current pension phase assets exceed $1.6M, will the “grandfathering” of the CSHC be cancelled, when the excess is commuted from pension back to accumulation phase?

  19. Barrie F. January 28, 2017 at 4:44 PM #

    I find Cuffelinks’ article to be most illuminating, and thought provoking. In our case my wife and I have 2 SMSF, each in pension phase. I plan to transfer those assets in excess of $3.2m from SMSF#1 to SMSF#2. This will see SMSF#1 retain it’s tax-free pension status. SMSF#2 will then revert to an accumulation phase fund. This seems one way to control which assets remain in the pension fund, and which are held in the accumulation fund, if that is desired.

    • David March 12, 2017 at 1:06 PM #

      I think the legislation says that you calculate tax across all superannuation balances in SMSFs or SAFs, so that if SMSF#2 doesn’t pay enough tax on accumulation earning pro-rata across both funds you end up having to pay more tax. Not sure if SMSF#1 will have to pay some of this or if it can all come from SMSF#2?

  20. Pratap Amin February 15, 2017 at 7:02 PM #

    We wish to comply with new pension cap laws.

    We as SMSF trustees wish to write minutes, before 30 June 2017 to say: Any pension balance in excess of 1.6 million dollars will be transferred to accumulation account from 1 July 2017. Is this kind of minute sufficient to indicate compliance with the pension cap laws?

    30 June 2017 tax returns can not be done by 30 June 2017. So the execess dollar amount can not be determined a until later.

    Will an acturial certificate be required for 30 June 2017 rax return if we are currently in pension phase?

  21. Pratap Amin February 15, 2017 at 7:05 PM #

    Currently both members are in pension phase.
    The fund is segregated as required under current laws

  22. Peter Morgan April 13, 2017 at 1:35 PM #

    i have a defined pension which is worth zero when I die. The Govt stated, “The Government will impose a $1.6 million cap on the amount of tax-free super savings a person can hold in retirement from July next year.” How on earth can one say that a worthless on death Defined Pension balance could be factored into being ‘tax free Super saving’ is well beyond me!

  23. Graeme April 14, 2017 at 12:23 PM #

    very good article. thank you. looking at earlier question, is it sufficient to note a minute to say that xxx$ will be transferred to the accumulation account.
    similarly is it sufficient for a minute to say that the following assets will have their cost base reset to 1 july 2017 OR all the assets to have cost base reset to 1 july 2017.

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