Chapter 2

Chapter 2

Key issues

2.1        This chapter describes the measures contained in the bill and considers the evidence that the committee received on specific proposed amendments. The first three sections of this chapter each examine one of the three schedules to the bill. The committee's comments on a particular schedule can be found at the end of the relevant section. The committee's overall conclusions and recommendations are at the end of the chapter.

Schedule 1—Income tax relief for transfers to a MySuper product

2.2        The measures in schedule 1 to the bill relate to the government's Stronger Super reform package that was developed in response to the 2010 report of the Super System Review (also known as the Cooper Review).[1] One of the main recommendations of the Super System Review was that a simple, low cost superannuation product called 'MySuper' be introduced. MySuper would replace existing default products.

2.3        From 1 July 2013, superannuation funds will be able to offer MySuper. From 1 January 2014, employers must make superannuation guarantee contributions for employees who have not made a choice of fund to a fund that offers a MySuper product.[2] Funds that do not intend to offer a MySuper product are required to transfer the account balances of existing default members to a superannuation fund that does offer a MySuper product by 1 July 2017.[3] However, the transfer of default members' account balances may have adverse financial consequences for those members due to:

2.4        As the explanatory memorandum notes, if a mandatory transfer resulting from the MySuper legislation creates an income tax liability, or if relevant losses remain within the transferring entity, this would have an adverse impact on the affected members.[5] To avoid any adverse impact on members whose balances will be mandatorily transferred, schedule 1 to the bill proposes to amend the Income Tax Assessment Act 1997 (ITAA 1997) to provide that where members' account balances have been mandatorily transferred from a complying superannuation fund (or a life insurance company or a pooled superannuation trust that the fund invests in to support its default members)[6] to a MySuper product in another superannuation fund, the transferring superannuation fund may choose to undertake a 'loss transfer' or a 'CGT roll‑over':

2.5        It is proposed that this relief would end on 30 June 2017, which is the deadline for the transfer of default members' accrued default amounts to a MySuper product.[12]

Tax deductions for personal contributions

2.6        Individuals who make a personal contribution to a complying superannuation fund can currently claim an income tax deduction if they give a notice to their fund and certain conditions are satisfied. A consequential amendment is contained in the bill that would ensure that members whose accrued default amount has been mandatorily transferred to another fund under the MySuper legislation can access this deduction. This will occur by enabling individuals to give a notice to their new fund.[13]

Evidence received on schedule 1

2.7        The Australian Institute of Superannuation Trustees and the Industry Super Network advised that they support the proposed amendments contained in schedule 1:

This measure solves the problem whereby members may be transferred en masse, but without the need to sell down investments in order to provide an orderly transfer, a transfer of both members as well as assets. Further, this measure ensures that unrealised capital losses, assets that are of considerable potential value to super fund members, are able to also be transferred, rather than ceasing to exist at the point of transfer, which may be for little or no value.[14]

2.8        Other organisations, while supportive of the measures overall, raised some technical issues regarding the bill. These are discussed in the following paragraphs.

Need for regulations and further guidance

2.9        Mercer and the Association of Superannuation Funds of Australia (ASFA) both suggested that the Australian Taxation Office (ATO) will need to provide further guidance on various matters and perhaps review a previous taxation ruling. Regarding the rollover of tax losses, Mercer stated that where only a part of a fund's membership is being transferred 'there is likely to be a range of complexities and hence the potential for disputes with the ATO over the methodology for determining the amounts which are 'reasonably attributable' to the [accrued default amount] transfer. Mercer suggested this could be overcome by the ATO providing 'sensible and practical guidance as well as adopting a reasonable approach'.[15]

2.10      On tax deductions for personal contributions, Mercer advised that the methodology outlined in the ATO's taxation ruling TR 2010/1 could result in the process envisaged by the bill being unworkable as the receiving entity would be unlikely to have the information necessary for determining whether the notice is valid and would, therefore, be unable to proceed with the notice.[16]

2.11      ASFA also argued that consideration should be given to amending the Superannuation Industry (Supervision) Regulations 1994 to provide that contributions splitting[17] notices may be served on the receiving fund 'in a similar fashion to the manner in which the bill enables claim for a deduction for a personal contribution to be given to the successor fund'.[18]

Calls for ongoing tax relief and relief for intra-fund transfers

2.12      ASFA argued that the CGT relief should be ongoing so that it applies to all future superannuation fund mergers. ASFA suggested that, in these circumstances:

... the underlying beneficial interest in the assets remains the same and only the legal ownership has been changed from one trustee to another. In these circumstances any capital gain/loss is not as a result of the final disposal of an asset to a third party but instead a CGT event is triggered merely by the change in legal ownership from one trustee to another, despite the underlying beneficial entitlements remaining the same.[19]

2.13      ASFA added that a member of the fund does 'not have any control over the decision to merge funds or the consequential transfer of the legal ownership of the assets', yet ultimately they bear the tax consequences of any CGT gains and losses as opposed to the trustee as legal owner.[20]

2.14      The Financial Services Council (FSC) raised the issue of intra-fund transfers. The FSC provided the following analysis:

A superannuation Trustee that holds [accrued default amounts] on behalf of a member is required to transfer those amounts to a suitable MySuper product. This is a mandatory transfer.

The MySuper regime does not, however mandate that the member's [accrued default amount] must be transferred between funds, it clearly recognises that the MySuper product may be the same product in which the member's monies reside, a different product within the same fund, or a product within a different fund. If the Trustee selects a suitable MySuper product within the same fund as the appropriate MySuper product, the transfer to this product is 'mandatory' in the same way as a transfer to a product in a different fund would be, had that been the appropriate product selected by the Trustee.[21]

2.15      The FSC argued that the loss transfer and CGT roll-over relief should also be provided to support transfers between products within a single fund.[22] ANZ, which also recommended that relief be provided for intra-fund transfers, suggested that not doing so 'disadvantages funds that wish to move their existing members into a MySuper offering within the same superannuation fund in order to improve efficiency and reform outdated investment structures'. However, if the relief was broadened to 'permit movement between two products or structures within the same fund', ANZ considers that this would remove potential detrimental impacts to members who hold their superannuation savings through these structures'.[23]

2.16      The FSC also noted circumstances where a unit trust holds assets under the complying superannuation class of a life insurance company. It argued that asset transfers from unit trusts will be needed for mandatory MySuper transfers within the same superannuation fund. The FSC suggested that, without relief:

the transfer of assets will crystallise tax on gains that will unfairly deplete superannuant's [sic] balances, contrary to the policy intent of MySuper. It will also deprive superannuant's [sic] of the value of losses, either previously realised or crystallised on the transfer of assets...[24]

2.17      Treasury, however, provided the following advice to the committee:

Some stakeholders have sought to extend the scope of the income tax relief to voluntary superannuation fund restructures in order to achieve various objectives as part of implementing the MySuper reforms. These voluntary restructures are undertaken for commercial reasons rather than being required under the MySuper reforms. Extending the relief to cover such restructures would involve an additional cost to revenue.[25]

Committee view on schedule 1

2.18      The committee is of the view that the matters stakeholders have raised do not need to be addressed by this bill. The bill aims to ensure that the introduction of MySuper does not have an adverse impact on the balances of individuals whose accounts are mandatorily transferred to another entity as a result of the MySuper reforms. On contributions splitting, for example, it is apparent that this is an issue that could arise in other circumstances where member benefits are transferred into a successor fund. If this issue warrants further consideration, it should occur through a process where it can be comprehensively considered. Suggestions for the tax relief to be made permanent also appear to be beyond the scope of the bill, as the bill is clearly linked to the 30 June 2017 deadline for the transfer of default members' accrued default amount to a MySuper product. Finally, the committee has not been convinced that the proposed amendments should accommodate restructures that are convenient for an entity but which are not specifically required by the MySuper legislation.

2.19      However, the committee is of the view that the ATO should review the evidence received during this inquiry and consider whether its current taxation rulings need to be adapted or if it needs to provide further information by other means as a result of the amendments contained in this bill.

Schedule 2—Consequential measures related to the government's 'Sustaining the superannuation contribution concession' policy

2.20      The proposed amendments contained in schedule 2 to the bill are consequential to measures contained in other bills that, at the time of writing, are currently before the Senate.[26] If passed, those measures would reduce the tax concession that individuals with an income above $300,000 receive on their concessional superannuation contributions by imposing tax under the ITAA 1997. The size of the concession would be reduced from 30 per cent to 15 per cent. The relevant explanatory memorandum provides the following justification for those measures:

High income earners receive a significantly larger tax concession on superannuation contributions than average income earners. Concessional contributions that are included in the assessable income of superannuation funds are subject to a flat rate of tax of 15 per cent regardless of the income of the individual members of the fund. If the superannuation contributions made for the individual had instead been included in their salary and wages or business income, the high income earning individual would have been taxed on this income at a marginal income tax rate of 45 per cent (excluding the Medicare levy). As a result, currently these individuals effectively receive a 30 per cent tax concession (excluding the Medicare levy) on their superannuation contributions. In contrast, average income earners are subject to a marginal tax rate of 32.5 per cent (excluding the Medicare levy) and effectively receive a 17.5 per cent tax concession (excluding the Medicare levy) on their superannuation contributions.[27]

2.21      Schedule 2 to this bill proposes consequential amendments that specifically relate to the Defence Force Retirement and Death Benefits (DFRDB) scheme. The amendments to the Defence Force Retirement and Death Benefits Act 1973 that the bill proposes would enable the Commonwealth Superannuation Corporation to pay a lump sum from a superannuation interest in the DFRDB scheme to meet a debt account discharge liability (a debt under the ITAA 1997) for Australian Defence Force (ADF) members that earn above $300,000.

2.22      In his second reading speech on the bill, the Minister noted that these changes are intended to ensure that:

... beneficiaries of this scheme are not disadvantaged in comparison to members of other Commonwealth defined benefit schemes and can have their benefits adjusted to meet their liability under the sustaining the superannuation contribution concession measure.[28]

Committee view on schedule 2

2.23      These measures are consequential to, and contingent on, broader changes contained in other legislation currently before the Parliament. Accordingly, and with the absence of any submissions commenting on schedule 2, the committee considers these measures should proceed.

Schedule 3—MySuper and employees under a modern award

2.24      Schedule 3 was inserted into the bill by the House of Representatives on 20 June 2013. The schedule contains proposed amendments to the Fair Work Amendment Act 2012 (FW Amendment Act)[29] that are intended 'to allow contributions for default fund employees to whom a modern award applies to be directed to an employer MySuper product, subject to the product being approved by the [Fair Work Commission (FWC)] and specified on the Schedule of Approved Employer MySuper Products'.[30] The supplementary explanatory memorandum notes that the approval process by the FWC will involve:

2.25      The Department of Education, Employment and Workplace Relations (DEEWR) advised that the proposed amendments have been developed in response to concerns raised by large employers with corporate superannuation arrangements during the Senate Education, Employment and Workplace Relations Legislation Committee's inquiry into the FW Amendment Bill. The concerns of these large employers:

related to employers not being able to make contributions for modern award reliant employees to funds offering high performing employer MySuper products, and potential disruption that changes to employee superannuation arrangements may cause for employers and employees.[33]

2.26      Schedule 3 also proposes to amend the FW Amendment Act to increase the maximum number of funds that, in relation to MySuper products, the FWC can specify in a modern award. The number of funds will be increased from 10 to 15. DEEWR advised that this is in response to concern that:

the existing limit of 10 funds may see some high performing funds not being included in particular modern awards where there are more than ten funds which meet the legislated criteria of being in the best interests of employee members covered by the award. The proposed amendments ensure that high performing funds have reasonable prospects of being specified in modern awards.[34]

2.27      Another proposed amendment in schedule 3 will provide that the new requirements included in the FW Amendment Act do not apply before 1 January 2015. DEEWR advised that this would give the 'certainty sought by stakeholders on how long existing arrangements will be able to continue'.[35]

Committee view on schedule 3

2.28      The committee considers that the proposed amendments contained in schedule 3 should proceed.

Concluding comments

2.29      The committee is of the view that this bill should be passed. In particular, the measures that relate to MySuper are important as they will ensure that there will be neutral tax consequences in circumstances where a fund that does not offer a MySuper product needs to transfer members to another fund that does. On the remaining schedules to the bill, the committee has not received any evidence that suggests that they should not proceed.

Recommendation 1

2.30      The committee recommends that the Senate pass the bill.

 

Senator Mark Bishop
Chair

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