The superannuation changes that have come into effect from 1 July 2017 are complex. Much has been written over the last 8 months since the changes were announced dealing with the detail of the legislation. This article summarises 5 things you should know about super and death under the latest iteration of the legislation.

1. From 1 July 2017, there will be no death benefit period. The previous restrictions on being able to move death benefits between funds no longer apply, therefore the recipient can move a benefit, which will retain its character, without having to wait out
the death benefit period.

2. From 1 July 2017, a superannuation death benefit must be cashed either by way of a pension or lump sum withdrawal. It cannot be commuted (internally transferred or rolled over to another fund) back into an accumulation balance.

3. From 1 July 2017, a Transfer Balance Cap (TBC) applies to the amount of superannuation that can be held as a retirement phase income stream (pension) by each recipient. This cap is $1.6m at present. Therefore, if you receive a death benefit that causes
you to exceed this cap, to avoid the penalties associated with exceeding the cap, you will have to:

• Commute your own pension first to leave the maximum allowed
• If still above the limit, withdraw as much of the death benefit as will reduce the balance to the limit

4. There is a grace period allowed under the new legislation if the death benefit is left as an auto-reversionary pension. An auto-reversionary pension means that the superannuation fund trustee has no discretion over the method of payment or the recipient
of the death benefit. This pension will not count towards your cap for 12 months from the date of death. If the death benefit is not auto-reversionary it will count towards your cap as soon as you are entitled to be paid the pension. This is required
to be as soon as practicable and is usually much less than 12 months.

5. The value of the pension will also be affected as an auto-reversionary pension and will have a value of the account based pension balance on the date of death whilst a non-auto-reversionary pension will have a value of the account based pension balance on
the date the pension is payable.

None of the above suggests that there is a standard solution to estate planning for superannuation interests. Each person will have to take into account their own personal circumstances and plan for their desired outcome.

Tax Treatment of defined benefit income streams post 30 June 2017

• These pensions differ from conventional account based pensions in that the annual payments are not based primarily on an identifiable account balance, but usually with reference to the recipient’s final salary. They are generally non-commutable; hence the ability to commute an account value in excess of the $1.6m cap is not available.

• The valuation of defined benefit pension accounts for transfer balance cap purposes is the first payment for the 2018 year grossed up to the corresponding annual amount and then multiplied by 16.

• Alternatively for market linked or other fixed term pensions, the transfer balance cap value is calculated as the first payment for 2018 year annualised and multiplied by the remaining term of the pension.

• Either valuation method may result in an account balance in excess of the allowable $1.6m cap. As these pensions cannot be commuted to reduce the pension account balance to $1.6m there is instead a limit to the amount of tax free income that can be received annually from these income streams.

All income streams will also have at least one of the following components, being the tax free, the taxed and the untaxed.

The tax free component of an income stream is non assessable, and therefore tax is not payable on receipt of that component. The taxable component of an income stream is from a source which has paid tax on its income, but it may still be assessable and taxable to the recipient.

The untaxed component of an income stream is the amount which has not been taxed at any time prior to the pensioner receiving it. This last component is mostly from government backed or constitutionally protected funds. These amounts are almost always taxble in the hands of the recipient.

• From 1 July 2017 the income stream from a defined benefit pension will maintain its tax free status for a recipient over the age of 60, provided it contains only tax free or taxed components - but only up to an amount not exceeding the general transfer balance cap divided by 16. This is 1.6m divided by 16, or $100,000 per annum.

• If the sum of tax free and/or taxed pension components exceeds $100,000, then 50% of the amount in excess of 100K is assessable at the recipient’s marginal tax rate, and tax may be payable accordingly.

For example:
A pension recipient aged over 60 years receiving an income stream comprising tax free and taxed components totalling $150,000 per annum. Up to the end of the 2017 financial year, this pension would have been tax free.

In the 2018 financial year, 50% of this amount or $25,000 will be assessable to the individual at their relevant marginal rate of tax.

• If any of the pension income is from an untaxed source, that component is already included as assessable income, and taxed at the individual’s marginal tax rate. A 10% tax offset is available, for those over age 60. The offset is calculated as 10% of the gross untaxed component of the pension and reduces any tax payable accordingly.

From 1 July 2017 the 10% tax offset will be reduced where the total gross pension, [irrespective of the individual components], exceeds 100k. The reduction of the tax offset is equal to 10% of the amount by which the total pension exceeds $100k.

For example:
A pensioner receives a defined benefit income stream of $190,000, of which $150,000 is an untaxed component, the remainder is tax free. In the 2017 financial year, the $150,000 untaxed component would be assessed at marginal rates, but qualify for a 10%, or $15,000 tax offset.

In the 2018 year, the $150,000 untaxed component is still assessable, but the tax offset is now only $6,000, being $15,000, less 10% of ($190,000 - $100,000). The $40,000 tax-free component whilst not itself assessable, has been taken into account by reducing the available tax offset.

There were too many caps, but now balance has been restored. While caps still have a role to play in the contribution space they will be closely aligned to the total super balance.

The total super balance is only a relevant number on 30 June each year as it dictates our ability to make non-concessional contributions and utilise the bring-forward provisions, make spouse contributions and be eligible for Government Co-contributions. It will also be relevant for those seeking to carry forward unused concessional contributions as the catch up rules take effect from 1 July 2018.

Contribution Caps:

Concessional Contribution Cap (Before Tax)

From 1 July 2017, the concessional contribution cap reduced to $25,000 for everyone from $30,000 for under 50s and $35,000 for over 50s in 2016/2017 year, however you will be able to 'carry-forward' any unused concessional contributions cap on a rolling 5 year basis. This means carried forward amounts will expire after 5 years.

Non Concessional Contribution Cap (After Tax)

The after tax contributions cap has reduced from $180,000 to $100,000 per year. You will still be able to bring forward up to three times the cap to make larger one-off contributions, if you are under age 65 and have not reached the new transfer balance cap. The full benefit you bring forward may not apply if your total super balance is close to the transfer balance cap.

Superannuation Balance and Contributions

Individuals with a superannuation balance of more than $1.6 million will no longer be eligible to make non-concessional (after tax) contributions from 1 July 2017. This limit will be tied and indexed to the transfer balance cap.

These measures mean that with their annual concessional contributions, Australians will be able to contribute $125,000 each year and, if taking advantage of the non-concessional ‘bring forward’, up to $325,000 in any one year until such time as they reach $1.6 million.

Who will the 2017 super changes affect?

Low income earners

If you are earning less than $40,000 or are self-employed, working part time or don't have constant income, it can be hard to save for retirement. Changes to super tax offsets and more flexible super contribution arrangements make it easier to add more to your super.

Spouse super contributions

If your spouse earns less than $37,000 p.a. and you make a contribution to their super, you can claim a tax offset equal to 18% of the contributions, up to $540. Even if they earn up to $40,000, you could still be entitled to a partial super tax offset. Other restrictions apply, however this change allows couples to get greater benefits from adding to each other's super.

Carry your super cap forward

A new 'carry forward' rule for before tax (concessional) contributions has been introduced that can help you catch up on before tax contributions later.

If you've had time out of the workforce, work part-time or have irregular work patterns and have contributed less than your before tax (concessional) cap, you can rollover the unused portion of your concessional contribution cap for up to 5 years, allowing you to make additional contributions in future years.

High income earners

Higher income earners may be affected by a reduction in both before and after contribution limits. If your combined income and super contributions exceed $250,000 you may have to pay extra tax known as Division 293 tax. The previous threshold for Div. 293 tax was $300,000.

Tax deductions for personal super contribution

Self-employed people and those that earn less than 10% of their income from salary or wages, can claim a tax deduction for any contributions they make to super. The contributions are then treated as 'before tax (concessional) contributions'.

On 1 July 2017, the 10% rule was removed, making it easier for more people to make use of their concessional contributions cap.

One thing for sure, we are all going to be far more reliant on the ATO to accurately record information which means we will be far more reliant on the superannuation industry accurately reporting information.

Sources:

https://www.moneysmart.gov.au/tools-and-resources/news/superannuation-changes-1-july-2017

http://growyourwealth.com.au/grow-your-wealth1/2016/11/25/super-changes-they-will-affect-you