Smsfs

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<img src="https://counter.theconversation.edu.au/content/57114/count.gif" alt="The Conversation" width="1" height="1">
GUEST OBSERVER
The government is still consulting on superannuation after concerns raised by backbenchers over changes made in the budget. However these changes are more important than ever, as evidenced by the 2016 HILDA statistics on wealth and superannuation.
The statistics highlighted changes in the distribution of wealth of Australians since the survey commenced in 2001. The most significant assets held by most Australians continue to be their family residence and superannuation, but policy changes over the time of decade the survey have changed the balance of those investments.
More concerning is the finding that wealth inequality has increased. The data adds strength to the argument that superannuation reforms are overdue, with a small number of wealthy people able to accumulate wealth in superannuation and investment property.
In Chapter 5 of the report, which discusses household wealth, the authors note that superannuation will soon overtake the family home as the major asset owned by Australians. This is the result of two separate trends: increases in superannuation balances and lower net wealth in housing.
Looking at the HILDA data, it’s not unexpected to see that younger age cohorts have experienced the strongest growth in superannuation assets.
Prior to 1993 superannuation was very different to the current system. According to Treasury data in 1986 53.5 percent of Australian full time employees did not have superannuation coverage, and over 80% of those who did, were members of a defined benefit scheme, which would not generally be reported as an asset. By 2000, 96.9% of full time employees had superannuation coverage, with 86% of those employees in accumulation type funds.
The superannuation guarantee has been a significant contributing factor in the importance of superannuation as a household asset. Notably, the phasing in of the rate of the superannuation guarantee shows in account balances. As can be seen from the HILDA report the increased rate of superannuation guarantee after 2002 has resulted in higher superannuation balances for people at the same age in successive surveys.
The increase in housing values is the second trend which has altered the mix of assets. Over this time residential house prices rose significantly, with ABS data showing an increase in the Residential Property Price Index across eight capital cities from 69.0 in September 2003 to 120.2 in Dec 2014.
Given that in the 2002 data the major asset of Australians was the family home, homeowners benefited disproportionately from the increased value of housing. Even with the significant increases in superannuation, for older Australians the proportion of wealth held in housing has been maintained as their total wealth has increased.
However for younger age groups the story is not as positive. The rate of home ownership is declining as it is becoming more difficult to enter the housing market and home equity is declining among younger age groups as the value of loans has increased.
The HILDA data shows that most age cohorts, including all except the oldest retirees, have seen increases in their superannuation accounts over time. Policy changes effective from 2007 have supported superannuants through tax exemptions and high contribution levels.
Another trend contibuting to this is that people are retiring later. The change in the pension age to 67 has been accompanied by a trend for people to work longer. Not only are they deferring withdrawals from their superannuation fund, but they are also continuing to contribute during this time.
As noted in the Productivity Commission report last year there is some evidence of withdrawals at the time of retirement, but these are generally used to pay outstanding debts, including mortgages against the family home.
Others convert their superannuation at retirement into other financial investments. This cements the family home as the most significant asset held by retirees.
The more concerning finding for policy makers is that wealth inequality has increased, and that superannuation holdings and investment properties are factors in this inequality. HILDA data shows that in 2014 the mean superannuation balance of the top 10% of people aged 50 to 69 was $991,268, up from $650,619 in 2002, compared to $210,798 in 2014 for the sixth to ninth decile and $13,719 for the bottom 50% (although a significant number of retirees in this age group do not have any superannuation balance).
There is a strong correlation between high superannuation balances, income and non-superannuation wealth. People in the top decile have access to higher levels of income to make higher levels of concessional contributions, and the ability to find the funds to make non-concessional contributions into a tax preferred investment environment.
As has been noted previously, the current superannuation system allows high income and high wealth individuals to over-accumulate in tax preferred superannuation, which increases wealth inequality as well as intergenerational inequality.
The Government proposals to restrict the level of contributions and to reduce the amount that can be retained in a tax free environment are important tools to address increasing levels of wealth inequality in our community.
Helen Hodgson is associate professor, Curtin Law School and Curtin Business School, Curtin University and author for The Conversation. She can be contacted <a href="https://theconversation.com/profiles/helen-hodgson-94553" target="_blank">here</a>.
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Wealth inequality shows superannuation changes are overdue

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<img src="https://counter.theconversation.edu.au/content/63395/count.gif" alt="The Conversation" width="1" height="1">
GUEST OBSERVER
The Productivity Commission has released its draft report setting out criteria for assessing the competitiveness and efficiency of the superannuation system. The final report will be delivered in November this year.
The study, the first stage of a three-stage exercise, is part of the Government’s response to the 2014 Murray Financial System Inquiry. Murray recommended that the Government “introduce a formal competitive process to allocate new default fund members to MySuper products, unless a review by 2020 concludes that the Stronger Super reforms have been effective in significantly improving competition and efficiency in the superannuation system.”
This first stage does not assess the superannuation system; it merely sets out criteria for evaluating it. The second stage, to be delivered by mid-2017, will develop alternative models for the competitive process. The third and final stage will review the system. Only then, and only if the government finds there is still significant inefficiency, will it consider introducing one or more of the “models” developed in the second stage.
<h2>What’s at stake?</h2>
The efficiency of the superannuation system makes a big difference to incomes in retirement. Today, the system charges fees totalling about $16 billion, or 1% of GDP. There are too many unwanted accounts, too many funds, and many funds charge fees that are too high. Costs that are too high by even half a percent a year can reduce balances at retirement by over 10%, and many Australians are paying more than that in excess fees. The recent Stronger Super reforms and the Future of Financial Advice reforms have reduced fees somewhat, but billions of dollars in excess cost remain.
<h2>What the Commission proposes</h2>
The challenge in evaluating superannuation is to make sense of the system’s jargon and its maze of products, sales channels, governance structures, and performance metrics. Even people with real financial expertise struggle to assess funds' performance, and many members are inexpert and disengaged. What’s more, some providers and advisers have interests that are not aligned to those of members.
The Commission proposes a rich set of performance measures for this complex system. It begins from the Government’s announced objective for superannuation: “to provide income in retirement to substitute or supplement the Age Pension”, and proposes five supporting goals, including maximising net returns, meeting member needs, providing appropriate insurance at least cost, complementing a stable financial system, and competition that drives efficient outcomes.
It then sets out separate criteria for the competitiveness and efficiency of the superannuation system. Sensibly, it notes that “competition in the superannuation system is not an end in itself, but provides benefits to the community as a whole and members in particular when it promotes efficient outcomes.”
It proposes that the system’s competitiveness be assessed by reviewing such measures as whether members are engaged and informed, whether advisers and sellers are acting in members' interests, whether funds compete on costs and pass on cost savings to members, and whether member outcomes are affected by vertical or horizontal integration.
The criteria it proposes for the system’s efficiency include net returns after fees and tax, the costs of the system, the extent to which the system’s services align to members' needs and preferences (such as risk management), and the extent of unpaid contributions and lost accounts.
These criteria are all sensible, though many will prove much easier to specify than to measure against an ideal or acceptable outcome. As the draft notes, work must begin now to ensure the data is in place when it is needed.
<h2>Three critical additions to ensure the process works</h2>
The Commission needs to build on its draft report in three directions.
First, it should be more explicit about the weighting given to different performance measures. Not all measures are equally important.
Second, it should be clear about what matters to different fund members. The draft notes that default and choice superannuation members have different needs; those needs should be clearly set out in the final report. Many of the 9.5 million Australians with default products are disengaged. Few will engage much until they near retirement, if they ever do. Many do not have financial expertise. That means that risk-adjusted net returns should be given strong weight in evaluating default products.
Lost accounts and unpaid contributions will also be particularly important for this part of the market. For the choice part of the market – currently about 5 million people – returns should remain paramount, but member engagement and advice quality may play a larger role.
Third and most critically, the Commission must strengthen the links between the three stages of its work. The government’s response to the Murray Inquiry and the Commission’s Terms of Reference for the first two stages make it obvious that the three are intended to work closely together. Stage 1 must define criteria that inform the development of competition models in Stage 2, as well as the assessment of those models against today’s model in light of the findings of Stage 3.
But the draft hardly discusses these links. For example, there is no discussion of how the proposed measures will inform Stage 2. And there is no discussion of which measures will help government decide whether to deploy the models designed in Stage 2. Without much tighter links between stages, the whole purpose of the process will be defeated.
At a minimum, the set of measures in Stage 1 must include the performance of funds by governance type (industry, public sector, and for-profit) in different competitive contexts (tender, awards, direct, and advised) and across product types (default and choice, accumulation and post-retirement).
It must also include the performance of tenders for investment management and administration separately. And it must include the implications of those segment outcomes for the whole system. That type of detailed assessment will be vital if the Commission is to assess competitiveness and efficiency and so inform the government’s decision about whether and how to change the competition model for default super.
<h2>Broader lessons?</h2>
The Commission’s process might seem cumbersome, but it could prove a model for a better way of developing policy. Superannuation is not the only sector in which competition seems to be leaving many consumers little better off.
There are at least two opportunities to roll out the multi-stage market assessment model. First, in its response to the Murray Inquiry, the Government has already committed to implement periodic reviews of competition in the broader financial sector.
More generally, last year’s Harper Review recommended that government set up a new body that would have the power to initiate what it called “market studies”. That was one of the few Harper recommendations the Government left hanging, perhaps because it wasn’t convinced a new body was needed.
But if the Commission’s three-stage process can credibly assess both superannuation system outcomes and the policy options to improve them, it could prove a model for further market studies, whether undertaken by the Commission, the ACCC, or some new body.
Jim Minifie is productivity Growth Program Director, Grattan Institute and author for The Conversation. He can be contacted <a href="https://theconversation.com/profiles/jim-minifie-10230" target="_blank">here</a>.
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PC sets groundwork for long-awaited look at super competition and efficiency

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GUEST OBSERVER
We are about to enter a period of substantial reform.
We have therefore prepared a brief ‘stock take’ of what the reform proposals look like as at the start of July 2016. In particular, we consider the proposals announced in the 3 May 2016 Federal Budget by the Liberal Government.
We also briefly compare these with the Labor Government’s proposals. Remember that these proposals are not yet law and the final form they take if they are introduced as law depends on a number of variables.
<h2>
LIBERAL PARTY PROPOSALS - CHANGES THAT APPLY FROM 3 MAY 2016
</h2>
The following change, if enacted, will apply from the date of the Budget announcement, being 7.30pm on 3 May 2016:
<h2>Lifetime non-concessional contributions cap</h2>
A lifetime non-concessional contributions (‘NCC’) cap of $500,000 will apply. This lifetime cap will take into account all NCCs made on or after 1 July 2007. Contributions made before the Budget announcement, however, will not result in excess NCCs.
The most difficult aspect of the Liberal Party’s superannuation reform proposals is the practical retroactive application the lifetime cap by including almost 9 years (ie, 1 July 2007 to 3 May 2016 is around 3,230 days or just over 8.8 years).
Thus, people who have previously relied on the law during this 9 year period in making contributions to their superannuation funds may now have no or little lifetime NCC cap remaining. Despite this practical impact, the Liberal Party is firm (and correct) in its view that this proposal is not retrospective (from a strict legal perspective).
The Liberal Party takes the view that the lifetime cap is prospective as it only affects excess NCCs made after the Budget announcement. That is, if more than $500,000 was contributed prior to 3 May 2016, that amount is not required to be withdrawn from superannuation.
However, if someone who has contributed more than $500,000 after 3 May 2016 (including contributions made prior to that date), the excess must be removed from superannuation or will be subject to penalty tax. A special ATO release authority will issue allowing the removal of the excess.
The Liberal Party has stated that there may be transitional provisions implemented for superannuation trustees who entered into contractual arrangements prior to the Budget announcement and who intended to make additional NCCs to settle the contract.
The proposed lifetime NCC cap will replace the existing NCC caps of $180,000 each financial year (or $540,000 averaged over three years under the bring-forward provisions). The $500,000 NCC cap will be indexed to average weekly ordinary time earnings (‘AWOTE’). Further, this proposal does not alter contributions made to superannuation under the CGT cap.
For more information on the $500,000 lifetime NCC cap, <a href="https://www.dbalawyers.com.au/announcements/new-500000-lifetime-contribution-cap-retrospective-bad-law/" target="_blank">click here</a>.
<h2>CHANGES THAT APPLY FROM 1 JULY 2017</h2>
<h2>Retirement transfer balance cap </h2>
A balance cap of $1.6 million on the total amount of accumulated superannuation a member can transfer into the tax-free retirement phase will be introduced. 
Currently, the earnings on assets supporting the trustee’s liability to pay a pension to a member are tax free without any maximum limit; this is known as the exempt current pension income (‘ECPI’) exemption. This proposed measure caps the ECPI of each member at $1.6 million of capital that can be used to commence a pension.
There will, however, be no restrictions placed on the subsequent earnings on the balance cap of $1.6 million. Therefore, the tax free status of the earnings derived from assets supporting a pension will not be limited.
Amounts in excess of the balance cap can be maintained in accumulation phase. Generally, earnings during the accumulation phase are taxed at 15%, with a 10% applying to net capital gains on assets held for more than 12 months after allowing for the 1/3rd CGT discount. 
Members already in the retirement phase with balances above $1.6 million will be required to reduce their pension account balance to $1.6 million by 1 July 2017.
A tax on amounts that are transferred in excess of the $1.6 million cap (including earnings on these excess transferred amounts) will be applied, similar to the tax treatment that applies to excess NCCs. 
Excess amounts will need to be transferred to accumulation phase or withdrawn, and tax paid on the associated earnings after allowing a 15 percent tax offset. 
The balance cap remaining for a member seeking to commence more than one pension will be determined by apportionment. Broadly, this means that if a member only uses part of their balance cap, they can utilise the remaining balance cap and if the cap has been indexed, they obtain a proportionate increase to their remaining cap.
The $1.6 million balance cap will be indexed in $100,000 increments in line with CPI.
For more information on the $1.6 million balance cap, <a href="https://www.dbalawyers.com.au/announcements/1-6m-balance-cap-examined-tax-death-benefits/" target="_blank">click here</a>.
<h2>Division 293 threshold</h2>
The threshold at which high income earners pay additional contributions tax will be lowered from $300,000 to $250,000 from 1 July 2017.
Annual concessional contributions cap will be reduced to $25,000
The annual concessional contributions (‘CC’) cap will be reduced to $25,000 each financial year (indexed in line with AWOTE).
<h2>Rolling 5 year concessional contribution cap</h2>
Members with a superannuation balance of less than $500,000 will be permitted to make additional CCs where they have not reached their CCs cap in the prior five FYs. This will effectively equate to a rolling five year average CC cap of up to $125,000. 
For example, if a member contributes $10,000 in FY2018, the member will effectively have a CC cap of $40,000 in FY 2019 (ie, $25,000 plus $15,000). 
<h2>Tax deduction for personal superannuation contributions</h2>
All members up to age 75 will be allowed to claim an income tax deduction for personal superannuation contributions up to their CC cap. This effectively allows all individuals, regardless of their employment circumstances, to make CCs up to the CC cap.
For example, if an employer makes superannuation contributions of $10,000 on behalf of an employee, the employee may make an additional $15,000 of personal CCs to superannuation, and claim a deduction for this amount (subject to having sufficient taxable income to offset the deduction).
For more information on personal deductions, <a href="https://www.dbalawyers.com.au/ato/budget-means-right-now-personal-deductible-contributions/" target="_blank">click here</a> 
<h2>Abolishing the work test for members under age 75</h2>
The current restrictions on people aged 65 to 74 from making superannuation contributions will be removed. In essence, this means that the work test requirements (ie, gainful employment for 40 hours in 30 consecutive days before a contribution can be made) will cease to apply for members under age 75.
For more information on the CC proposals, <a href="https://www.dbalawyers.com.au/announcements/spotlight-concessional-contributions/" target="_blank">click here</a>.
<h2>Low income superannuation tax offset</h2>
A low income superannuation tax offset (LISTO) will be introduced to reduce tax on superannuation contributions for low income earners. Note that this announcement ensures that the Low Income Superannuation Contribution, which has been legislated to cease on 30 June 2017, will effectively continue to operate.
<h2>Spouse tax offset</h2>
The income threshold for the recipient spouse (whether married or de facto) of the low income spouse tax offset will be increased from $10,800 to $37,000. The contributing spouse may be entitled to a maximum tax offset up to $540 for contributions each financial year made on behalf of the recipient spouse.
<h2>Transition to retirement income streams</h2>
The tax exemption on earnings derived from assets supporting transition to retirement income streams (‘TRIS’) will be removed from 1 July 2017. Therefore, members who have reached preservation age, but not yet retired will be able to commence a TRIS (or continue to receive a TRIS), but the earnings will be taxed at the concessional rates that apply to amounts in the accumulation phase.  
<h2>Lump sum election</h2>
It is proposed to remove the provision that allows individuals to treat certain superannuation income stream payments as lump sums for tax purposes under regulation 995-1.03 of the Income Tax Assessment Regulations 1997 (Cth). This measure will primarily affect members under age 60 in receipt of a TRIS. 
<h2>Anti-detriment provisions</h2>
The anti-detriment provision in respect of death benefits from superannuation will be removed from 1 July 2017.
<h2>LABOR PARTY PROPOSED SUPERANNUATION CHANGES</h2>
At this stage, the Labor Party has proposed the following two changes to superannuation if it wins the July 2016 election:
<h2>Pension exemption limit of $75,000 p.a.</h2>
If elected, the Labor Party intends to reform the tax exemption for earnings on superannuation balances in pension phase that exceed $1.5 million. From 1 July 2017, future earnings on assets supporting income streams will be tax‑free up to $75,000 a year for each member, while earnings above the $75,000 threshold will be taxed at 15% that applies to earnings in the accumulation phase.
It is proposed, however, that assets acquired prior to 1 July 2017 will be grandfathered for capital gains tax purposes. In respect of future discounted gains (ie, capital gains entitled to the 1/3rd discount), the gain will be added to income earnt in any year and included in the $75,000. 
<h2>Division 293 threshold</h2>
The Labor Party also proposes to reduce the Division 293 threshold from $300,000 to $250,000.
<h2>Labor Party’s position</h2>
While the Labor Party has stated that it opposes the retrospective effect of certain Liberal Party proposals, Labor has not as yet formally adopted a position with regard to the Liberal Party proposals. 
For more information on the Liberal Party v Labor Party pension proposals, <a href="https://www.dbalawyers.com.au/announcements/liberals-v-labor-different-election-outcomes-mean-smsf-pensions/" target="_blank">click here</a>. 
<h2>CONCLUSIONS</h2>
The superannuation reforms will have wide ranging impact and are likely to take several years to finalise. Most people will have to adjust their superannuation planning, especially their SMSF succession planning, and are best positioned to do so if they monitor and keep on top of the changes. There are strategies that can be implemented ahead of these proposals becoming law and expert advice should be obtained as needed.
DBA Lawyers will be continually refining its SMSF and related documents to keep at the forefront of this change. We also offer an extensive range of education options to keep you updated on an ongoing basis.
Daniel Butler is director, DBA Lawyers and Rebecca James is special counsel. They can be contacted <a href="https://www.dbalawyers.com.au" target="_blank">here</a>. 
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Property 101: Proposed super reform

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GUEST OBSERVER
In October 2016, Treasury released the third tranche of draft legislation to implement the announcements in the Federal Budget. The principal component of this tranche was the new non-concessional contribution rules.
Hidden in the legislation is a very important concession.
I envisage that advisers will only need to apply it a handful of times in their careers. However, when they do apply it, it will be some of the most important and helpful advice that can be provided.
(Note that this article must be read subject to the discussion regarding the AFSL regime at the end.)
This hidden gem relates to structured settlement contributions. More specially, it relates to contributions covered by s 292‑95 of the Income Tax Assessment Act 1997 (Cth).
In this article, when I refer to a ‘structured settlement contribution’, I will refer to a contribution covered by s 292‑95. The full official version of s 292‑95 is currently available <a href="https://www.legislation.gov.au/Details/C2016C00916" target="_blank">here</a>.
However, for the purposes of this article, it is suffice to say that s 292‑95 covers the following contributions (however, I stress that there are other types of contributions that it covers too):
<ul>
<li>the contribution arises from the settlement of a claim that is for compensation or damages for personal injury suffered by the fund member</li>
<li>the contribution is made by the fund member</li>
<li>the claim is based on the commission of a wrong, or on a right created by statute</li>
<li>the settlement takes the form of a written agreement between the parties to the claim (whether or not that agreement is approved by an order of a court, or is embodied in a consent order made by a court)</li>
<li>two legally qualified medical practitioners have certified that, because of the personal injury, it is unlikely that the fund member can ever be gainfully employed in a capacity for which the member is reasonably qualified because of education, experience or training</li>
<li>no later than the time the contribution is made to a superannuation plan, the member notifies the trustee, in the approved form, that s 292‑95 is to apply to the contribution and</li>
<li>the contribution is made within 90 days of the day of receipt of the payment from which the contribution is made.</li>
</ul>
I want to stress two aspects: Firstly, the above is not the only combination of facts that can be covered by s 292‑95 (ie, be a structured settlement contribution).
Again, advisers should read s 292‑95 in full. Secondly, the clock ticks very quickly.
To be covered by s 292‑95 — and thus to get the benefit of the ‘hidden gems’ that I will discuss in this article — broadly the contribution must be made within 90 days of receipt of the payment.
Clients might not tell advisers promptly when they receive a compensation payment.
Accordingly, advisers should be pro-active about this and upon the first ‘whiff’ that a client might receive a compensation or similar payment, should start alerting clients to these rules.
There are two key concessions for structured settlement contributions.
The first is contained in the proposed s 307‑230(2). Broadly, this provides that, when determining how much money a person has in superannuation (ie, their ‘total superannuation balance’), ignore any money that came from a structured settlement contribution.
Naturally, this important because, under the new non-concessional contribution rules contained in the third tranche of draft legislation, if immediately before the start of the year, a person’s ‘total superannuation balance equals or exceeds the general transfer balance cap for the year’ (which will start at $1.6 million on 1 July 2017), then the person has a nil non-concessional contributions cap for the year.
In short, a person will be able to make structured settlement contributions to superannuation regardless of how large the contribution is or how much money the person already has in superannuation.
(For legal completeness, I note that structured settlement contributions do not constitute non-concessional contributions and so are irrelevant to the non-concessional contributions cap, however, it was a relief to see that the third tranche of legislation did not impact upon this and indeed expressly retained this position.)
The second key concession is contained in the second tranche of legislation that was released in late September.
At the risk of oversimplification, it provides that a structured settlement contribution is a debit to a person’s transfer balance account (see item 2 in the table in the proposed s 294‑70). Effectively, this means that the $1.6 million cap on how much can be used to commence a pension (and thus how much can be covered by the pension income tax exemption) does not apply to pensions funded by structured settlement contributions.
Consider the following example from the draft explanatory memorandum that accompanied the third tranche:
Masayo is self-employed and has been making contributions to her account in her self-managed superannuation fund Couture Super, which is her only superannuation interest. At 30 June 2017 Masayo had not yet commenced any superannuation income streams and the total of her accumulation phase value is $1 million.
In the 2017-18 financial year Masayo is involved in an accident that results in her receiving a structured settlement of $2 million which she contributes to Couture Super on 15 May 2018.
To determine whether she is eligible to make non-concessional contributions in the 2018-19 financial year, Masayo calculates her total superannuation balance at 30 June 2018 as; accumulation phase value ($3 million) less the structured settlement contribution in accumulation ($2 million), equalling $1 million. As Masayo’s total superannuation balance is below $1.6 million Masayo is eligible to make non-concessional contributions in the 2018-19 financial year.
In the above example, Masayo could also then:
<ul>
<li>make a further $600,000 of non-concessional contributions and</li>
<li>commence a pension funded by a total of $3.6 million of capital (assuming of course she had satisfied a relevant condition of release, which she almost certainly would have).</li>
</ul>
The new draft rules contain very important concessions for those who are able to make structured settlement contributions.
Accordingly, advisers need to be very proactive when there is a possibility to make a structured settlement contribution, especially given that there is generally only a narrow 90 day window when such a contribution can be made.
Naturally, advisers must remember all of the usual requirements when advising on contributions, pensions and the like.
One very timely aspect is the AFSL regime. Naturally, I will not discuss this aspect ‘chapter and verse’, however, those advisers who have entered the AFSL regime, may well need to provide a statement of advice and those who have not entered the regime need to think very carefully about how appropriate information can be provided to their client while complying with all relevant laws.
For accountants in the second category, they might consider something along the lines of a letter to their client setting out certain objectively ascertainable facts (eg, the structured settlement contribution rules detailed in this article) along with a recommendation to seek advice from an appropriately licensed adviser and the appropriate disclaimers.
Bryce Figot is a lawyer at DBA Lawyers and <a href="https://www.dbalawyers.com.au/" target="_blank">can be contacted here</a>.
 
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Property 101: Key concessions for structured settlement contributions

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GUEST OBSERVER 
The Productivity Commission’s draft report on our super system may make self-managed super funds (SMSF) more popular.
The draft report, designed to stimulate discussion about competition in the superannuation sector, examines whether the system is working in favour of fund members.
It questions whether larger institutional funds and service provider groups are passing on benefits to fund members in the form of lower fees, better services or improved investment returns.
The report refers to SMSFs as a core segment of the superannuation industry, and a benchmark to which APRA-regulated funds can be compared.
The Productivity Commission’s findings so far will come as no surprise to many Australians, especially those who already have their retirement savings in a self-managed fund.
Granted, technology is improving and fees are coming down, but the Productivity Commission believes there is still a long way to go. Ultimately criticism of the way APRA-regulated funds operate could motivate many more Australians to take control of their retirement future and set up their own self-managed fund.
The SMSF sector is competition operating in its purist form - its members are individuals who have exercised their choice as free consumers to establish their own funds but they are not without vulnerabilities.
The government’s view that SMSFs swim ‘outside the flags’ means they are on their own when victim to financial misconduct. The Trio Capital fraud saw 400 SMSFs, who lost a total of $60 million, refused any form of government compensation or support. It’s vital trustees have access to the independent advice and guidance they need to avoid the traps.
The Productivity Commission is not just reviewing competition and efficiency in the superannuation sector, but whether trustees of APRA-regulated funds are acting in the best interests of members. 
Any doubts about trustees acting in members’ best interests will ring alarm bells. People all over the world are already becoming more cynical of institutions, from the ‘Brexit Effect’ to the ‘Trump Effect’, but here we might just see the ‘Super Effect’
Christopher Page is managing director of market intelligence company Rainmaker and can be contacted <a href="https://www.rainmaker.com.au" target="_blank">here.</a>
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Review of super system will push more Australians into SMSF

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<h2>An SMSF can lease an asset of the fund – such as business equipment or machinery – to a related party of the fund. This is known as an in-house asset.</h2>
An in-house asset is a loan to – or an investment in – a related party of your fund or an asset subject to a lease to a related party.
A related party of your fund can include fund members, trustees, their relatives and any companies and trusts these related parties control or influence. Employers who contribute member benefits for you or another member of your super fund are also related parties.
It’s important to remember that in-house assets can’t be more than 5 percent of the total market value of fund assets.
If your SMSF holds an in-house asset, the value of all of your funds’ assets needs to be determined at the end of the income year. The valuation enables you to test whether the market value of the in-house assets exceed 5% of the funds’ total assets at the end of a year of income.
<h2>Certain events will affect the percentage of in-house assets and there are also some exceptions to the in-house asset rules.</h2>
Your SMSF must also ensure that the lease of business equipment or machinery complies with the sole purpose test and is made on a commercial ‘arm’s length’ basis.
Can an SMSF sell a collectable or personal-use asset to a related party?
Yes – collectables and personal-use assets held in an SMSF can be sold to a related party. For items acquired:
<ul>
<li>after 1 July 2011, the sale must be made at market price as determined by a qualified, independent valuer</li>
<li>before 1 July 2011 and sold before 1 July 2016, an independent valuation is not required, however, the sale must be made on an arm's length basis.</li>
</ul>
All sales to related parties that occur on or after 1 July 2016 must be supported by an independent valuation.
What is the time limit for providing requested documents to my SMSF auditor?
You must provide requested relevant documents to your SMSF auditor within 14 days of the request being made.
If you fail to do so, you will be in breach of a statutory time period in section 35C (2) of the Superannuation Industry (Supervision) Act 1993.
Where a statutory time period is exceeded by more than 14 days, your SMSF auditor is required to report the contravention to the ATO via an Auditor Contravention Report.
What is my preservation age for accessing super benefits?
Your preservation age is the minimum age at which you can access your preserved super benefits without meeting another condition of release. It is based on your year of birth.
Your preservation age will be 55 if you were born before 1 July 1960.
If you were born after 30 June 1960, you will have a higher preservation age of:
<ul>
<li>56 – if you were born between 1 July 1960 and 30 June 1961</li>
<li>57 – if you were born between 1 July 1961 and 30 June 1962</li>
<li>58 – if you were born between 1 July 1962 and 30 June 1963</li>
<li>59 – if you were born between 1 July 1963 and 30 June 1964</li>
<li>60 – if you were born after 30 June 1964 
</li>
</ul>
To access your preserved super in the 2015-16 income year, you must have turned 55 before 1 July 2015.
Your preservation age is relevant to the following conditions of release:
<ul>
<li>reaching preservation age and retired with no intention to work again in the future</li>
<li>reaching preservation age and starting a transition-to-retirement income stream.</li>
</ul>
What happens if TRIS payments exceed the maximum annual payment limit?
A transition-to-retirement income stream (TRIS) can be paid to a member who has reached their preservation age even if they have not retired. However, strict annual payment conditions apply. The minimum annual payment amount depends on the member’s age and the maximum annual payment amount is 10 percent of the member’s account balance. 
If payments are outside the allowable limits, the TRIS is automatically taken to have ceased for income tax purposes from the start of the financial year in question. This means your fund cannot claim a tax exemption on the income from the account supporting all the payments. It also means all payments made during the financial year will be treated as a lump sum and taxed at the individual’s marginal tax rate, unless the payments are unrestricted non-preserved benefits.
Can an SMSF purchase shares in a private company?
An SMSF is prohibited from acquiring assets from a related party. There are limited exceptions, including market listed shares, business real property or in-house assets (where the value of all in-house assets does not exceed 5% of total fund assets).
In recent communications, we have described situations where an SMSF purchases the shares of a private company for the purpose of channelling franked dividends to the SMSF instead of the company’s original shareholders.
If the private company is a related party of the SMSF, the purchase would be a prohibited acquisition and a breach of section 66 of the Superannuation Industry (Supervision) Act 1993 (SISA) would occur.
How are unrestricted non-preserved benefits related to a condition of release?
The most common conditions of release for paying benefits to a member are when the member has:
<ul>
<li>reached their preservation age and retires</li>
<li>reached their preservation age and begins a transition-to-retirement income stream</li>
<li>turned 65 (even if they haven't retired)</li>
<li>died</li>
</ul>
When you meet a condition of release with no cashing restrictions, your preserved benefits become unrestricted non-preserved benefits (UNPB).
Under the rules for voluntarily cashing benefits, UNPBs may be cashed at any time. 
Can you set up an SMSF with a corporate trustee? 
Under paragraph 19(3)(a) of the SISA, the trustee of the fund must be a constitutional corporation pursuant to a requirement contained in the governing rules.
This means you need to set up a company incorporated under law and obtain a certificate of registration in order to have the company act as trustee of a fund. Registering a company incurs immediate costs and there is also an annual fee depending on the purpose of the fund.
The company must be registered before the SMSF is established.
How do I amend my SMSF annual return?
To amend your SMSF annual return you need to resubmit the whole return and answer ‘yes’ in Section A question 5.
You cannot request amendments by:
<ul>
<li>writing to us with the correct details</li>
<li>submitting a partially completed SMSF annual return</li>
<li>submitting a Request for an amendment of an income tax return form.</li>
</ul>
Can I make salary-sacrificed contributions to my SMSF and at the same time access retirement money to make mortgage payments?
There are very limited circumstances when you can access your retirement savings early. Strict criteria must be met to do so.
A release on compassionate grounds must be applied for through the Department of Human Services. In these circumstances, superannuation savings will only be released to make mortgage payments if you do not have the financial capacity to pay and your mortgagee is threatening to repossess or sell your home.
If you are voluntarily salary sacrificing into your super fund, instead of paying your mortgage, you will not qualify for compassionate grounds because you have the financial capacity to make your mortgage repayments by accessing your employment income.
You are only able to withdraw super under severe financial hardship if you have received Australian Government income support payments continuously for 26 weeks and are unable to meet reasonable and immediate living expenses. Payments from your super fund are limited to a maximum of $10,000 every 12 months.
Improper early access to your super is illegal – there are severe consequences for you and your fund if you access your super before you are legally entitled to do so. These include disqualification of trustees, the fund being made non-complying, imposition of administrative penalties, and prosecution.
Any money accessed illegally will also be assessed as income for the individual and taxed at the applicable marginal tax rate.
Can an SMSF take out insurance on a cross-insurance basis?
Regulations that came into operation on 1 July 2014 do not allow SMSFs to provide insurance for a member unless the insured event is consistent with one of the following conditions of release:
<ul>
<li>death</li>
<li>terminal medical condition</li>
<li>permanent incapacity</li>
<li>temporary incapacity.</li>
</ul>
<h2>The Explanatory Memorandum associated with the amended regulations makes it clear that the proceeds of an insurance policy must be released to the member who is the insured under the policy. This means that cross-insurance arrangements where the proceeds of an insurance policy are paid to someone other than the insured under the policy are not permitted.</h2>
Does the temporary budget repair levy apply to SMSFs?
The Temporary Budget Repair Levy started on 1 July 2014. It is a 2 percent levy that applies if your income is taxed at the highest marginal tax rate. Super fund tax rates that match the top marginal tax rate for individuals have been increased by 2 percent. These tax rates are:
<h2><a href="/images/2016/10/12/Screen%20Shot%202016-10-12%20at%209.25.33%20AM.png" target="_blank">Click to enlarge</a></h2>
<img src="/images/2016/10/12/Screen%20Shot%202016-10-12%20at%209.25.33%20AM.png" alt="">
For more information from the ATO, <a href="https://www.ato.gov.au" target="_blank">click here</a>.
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Property 101: Can equipment owned by the SMSF be leased to other members of the same SMSF?

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GUEST OBSERVER
SMSF trustees are still consistently investing in assets they understand and can trade easily.
Australian Taxation Office (ATO) figures show that although there might be a bias towards Australian investments, a lack of diversification across asset classes is typically not an issue. 
When critics of SMSF trustees’ asset allocation point to a lack of diversification, they often highlight the absence or low allocation to assets such as international equities, forgetting SMSFs are still getting exposure to these assets via ETF’s, listed and unlisted trusts and managed funds. 
The investment returns that SMSFs have consistently generated over the years speak volumes for the capacity of trustees to manage their investment portfolios. 
Based on ATO statistics, for example, for the eight years from the 2007 financial year to the 2014 year, SMSF returns outperformed all other alternative superannuation arrangements for four of those years. 
Although in recent times, the predominant asset allocation of SMSF trustees has not performed as well compared to alternative funds, it is still within reach. APRA statistics for the 2015 financial year, for example, show the return for SMSFs after expenses (excluding contributions) to be 5.7 percent. This compares with non-SMSF returns of 8.5% for the same period. 
These returns do not support the suggestion that SMSF trustees are dangerously out of their depth or incompetent in investing their members’ superannuation balances. It also has to be noted that many SMSFs are in pension phase and therefore have more defensive investment portfolios to suit their needs. 
The asset allocation of SMSFs has remained largely consistent over the years, rejecting the suggestions that they continue to load up on bank stocks or residential property. 
As the two tables below show, residential property has only inched up half a percentage point in that five-year period (2011-16), while Australian equities have dropped one percentage point. 
All the evidence suggests SMSF trustees are prudent, investing in asset classes where they have knowledge, or giving the responsibility to a manager where they lack expertise. It’s hardly surprising really – it is their money. 
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For the year to 30 June 2016, SMSF assets totalled $622 billion. The percentage break-up of the same asset classes were:
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<li>
  Australian listed shares – 30% 
</li>
<li>
  Australian residential property – 4% 
</li>
<li>
  Australian commercial property – 11% 
</li>
<li>
  Cash &amp; term deposits – 26% 
</li>
<li>
  Overseas investments in total – 1% 
</li>
<li>
  Listed &amp; unlisted trusts &amp; other managed investments – 19% 
</li>
<li>
  Debts &amp; loans – 2% 
</li>
<li>
  Other investments – 7% 
The year to 30 June 2011 told a similar story. Assets totalled $402 billion in the SMSF sector. The percentage break-up of the same asset classes were: 
</li>
</ul>
<ul>
<li>
  Australian listed shares – 31% 
</li>
<li>
  Australian residential property – 3.5% 
</li>
<li>
  Australian commercial property – 11.5% 
</li>
<li>
  Cash &amp; term deposits – 28% 
</li>
<li>
  Overseas investments in total – 1% 
</li>
<li>
  Listed &amp; unlisted trusts &amp; other managed investments – 18% 
</li>
<li>
  Debts &amp; loans – 1.5% 
</li>
<li>  Other investments – 5.5%</li>
</ul>
Peter Hogan is head of technical at the SMSF Association and can be contacted <a href="https://www.smsfassociation.com" target="_blank">here</a>.
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SMSFs continue to invest in assets they understand

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GUEST OBSERVER
Will competition in the superannuation system improve efficiency, or is this an ideological argument extended beyond its usefulness?
If more competition would promote efficiency, what design and policy issues need to be addressed to accommodate the changes?
The Productivity Commission’s draft report on superannuation’s efficiency and competitiveness seeks to address whether increased competition will, in fact, drive efficiency, or whether this proposal is ideologically driven by either a belief in the free market or a desire to weaken the role of the unions in industry superannuation funds.
The Commission confronts this, saying that the role of competition is to drive efficiency, and is not an end in itself. Competition is justified only if it drives funds to become more innovative and efficient. An increase in the number of funds could lead to inefficiencies as smaller, potentially more innovative, funds would not have the economies of scale of bigger funds.
A number of participants in the consultation process made the case that competition may not lead to greater efficiency: the ACTU raised the concern that competition could weaken the superannuation system, noting failures when other services, specifically technical education, were opened to the market.
Other submissions discussed whether consolidation of the existing range of providers would improve efficiency; Fiduciary’s Friend thought this would detract from innovation, while the Financial Planning Associationand Financial Services Council thought that competition could incentivise underperforming funds to consolidate with more efficient funds.
Another perverse effect of competition could be to change the investment policies of superannuation trustees. If members were encouraged to switch funds, this could place stress on the liquidity of the fund. If funds retained more investment in liquid assets this would not only flow through to capital markets but would affect the returns of the fund.
The draft report does make the point that superannuation is a unique environment, so the usual frameworks for assessing efficiency need to take that into account. Specifically, superannuation is an instrument for government policy, and is compulsory. Member disengagement continues to be relatively high, as shown by the number of members who accept the default options both of their fund and of investments within their fund.
Although the introduction of MySuper with the Stronger Super Reformswas intended to increase efficiency and reduce costs, the behavioural effect could well be to further reduce member engagement with the superannuation system.
Since 2005 most employees have been able to choose their fund, but according to the PC report, about two thirds of employees remain in their default fund and less than one third switch their investment options within their fund. There are also about 20% of employees who are not able to choose a fund other than the default fund nominated in their award or enterprise bargaining agreement (EBA).
This contributes to a large number of agency relationships in the system: the employer acts as an agent for the members when nominating a default fund; there is a fiduciary relationship between the trustees of the fund and the members in respect of managing the fund; and many trustees outsource functions to external service providers.
Given the combination of member disengagement and the agency relationships, competition needs to be considered more broadly than facilitating member choice.
The report also discusses the relationships that arise at the wholesale level, including a range of services provided to the superannuation sector. Insurance is particularly in the spotlight here as many members are entitled to insurance benefits through their superannuation fund.
Superannuation trustees are able to obtain policies at far better rates than most individuals – although this has been under the spotlight recently as members find exclusions in their policies. The effect of competition in this area could be less efficient than the current system.
The Productivity Commission sets out a series of objectives for the superannuation system, that sit below the policy objective that the superannuation system is “to provide income in retirement to substitute or supplement the Age Pension”. These objectives include:
<ul>
<li>Competition that drives efficient outcomes through facilitating rivalry and contestability in supply and demand conditions and allowing suppliers to compete on adding value to members</li>
<li>Maximising net returns over the long term</li>
<li>Meeting member preferences and needs over the member’s lifetime</li>
<li>Providing insurance that meets members needs at the lowest cost</li>
<li>The Superannuation system complements a stable financial system</li>
</ul>
The development of these objectives is the first stage: the report goes on to refine the objectives into assessment criteria and indicators.
It is important that the superannuation sector operates efficiently as it is becoming an increasingly important retirement policy instrument and a major component of household wealth. This report has articulated a set of objectives that would strengthen the superannuation system and the faith that members have in their superannuation fund.
Helen Hodgson is associate professor, Curtin Law School and Curtin Business School, Curtin University and author for The Conversation. She can be contacted <a href="https://theconversation.com/profiles/helen-hodgson-94553" target="_blank">here</a>.
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A competitive superannuation system: will efficiency gains follow?

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GUEST OBSERVER
The SMSF Association has produced compelling evidence that the Federal Government should increase the concessional contribution cap for people aged 50 and over and extend the carry forward of concessional contributions.
Research undertaken for the organisation by the actuarial consultancy firm Rice Warner “conclusively shows” that people only begin making significant voluntary contributions to superannuation from their mid-50s onwards.
The research confirms what the Association has long been telling policy makers: that there is a sharp difference between compulsory and voluntary contributions to superannuation – the former increase gradually over time while the latter jump dramatically in the years leading to retirement.
The Rice Warner research used a sample of 14,351 SMSF members provided to the Association by BGL, a leading SMSF software provider.
This research graphically shows why people aged 50 and over need to have a more generous contribution cap than the $25,000 that will apply from 1 July 2017.
The Association has argued for the Government to retain the current $35,000 cap for older workers and notes that even a compromise of a $30,000 cap for those over 50 years will still benefit fund members trying to save their superannuation savings to achieve a dignified retirement.
The research highlights the significant impact that voluntary contributions can have on a fund member’s superannuation balance.
The research also highlights that if the carry forward concessional contribution limit was increased from a balance of $500,000 to $750,000 it would benefit 13% of the members in the sample, of which half would be female. This measure alone would go a long way towards building adequacy for women.
The Association believes that this change would increase the effectiveness of the Government’s carry forward policy and deliver better results for people who have had volatile incomes throughout their careers and are trying to build adequate retirement savings.
These important policy changes will allow a greater opportunity for people to achieve a secure and dignified retirement by building their retirement savings.
It’s also significant that women’s contribution patterns show that when they are in the workforce they are engaged with their superannuation in an SMSF, and this particularly applies when they are in the 60-plus age group.
Rice Warner CEO Michael Rice said the underlying focus of the research was to measure the impact of recently proposed legislative changes to tax treatment in superannuation on SMSF members and potential refinements.
The three most significant of those proposed legislative changes were: the introduction of a $1.6 million cap on the amount that can be transferred from accumulation accounts to pension accounts, the reduction of the concessional contribution cap to $25,000 from $35,000 and the introduction of a $100,000 yearly non-concessional contributions cap (restricted to those with balances under $500,000).
The research shows that the proposed changes will have a material impact on the SMSF population and will restrict members’ ability to save in superannuation.” 
Andrea Slattery is managing director and chief executive officer of the SMSF Association and can be contacted <a href="https://www.smsfassociation.com" target="_blank">here</a>.
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Research shows ‘strong argument’ to lift concessional cap

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GUEST OBSERVER
It is imperative that the new government moves quickly to set the long-term goals for superannuation.
It has been the Association’s long-term policy that the objective and underlying principles of superannuation should be enshrined in legislation, and what has happened over the course of this election campaign has simply reinforced our position. 
It is quite clear that the election highlighted the fact that many in the electorate were unnerved by the changes to superannuation proposed by both major parties and are seeking certainty for their retirement planning.
Both major political parties were seen as moving the goal posts for ordinary Australians to build their savings to ensure a dignified retirement. This is despite the repeated calls from the public and superannuation industry for the ongoing tinkering with superannuation to stop. This is why it is critical to have a politically bipartisan framework for superannuation that is removed from both the budgetary and political cycles for the long term.
We need to have a sustainable and measured policy approach to people’s second largest asset, superannuation. which assists Australians to accumulate adequate retirement income savings for a secure retirement.
It is especially important at times of political uncertainty, such as what has happened with the federal election and Brexit, that people know that their retirement savings are secure.
The Association is ready to work “constructively” with the new Government, Opposition, and cross-benchers in the House of Representatives and the Senate to address the various superannuation policy issues that arose out of the last federal Budget.
It is also important to remember that our superannuation system is one of the world’s best retirement income systems and we need to understand the benefit it provides to our economy and national prosperity.
We are on the record in saying we believed the reduction in the concessional contribution caps were detrimental to the goal of encouraging people to be self-sufficient in retirement and that other budget changes were complex and disrupted many people’s long-term plans. We look forward to working with all parliamentarians to either change or ameliorate the impact of these changes.
It’s also important to note that there were some positive measures in the Budget that were overlooked to some degree, and we will be urging that they get enacted by the new Parliament as quickly as possible.
Among the positives, which the Association has long advocated, were the carry forward of unused concessional contribution caps, allowing people aged between 65 and 74 to contribute to their super without meeting the ‘work test’, and removing the ‘10 percent’ rule that allows all fund members to make deductible contributions to their super.
 
Andrea Slattery is chief executive officer, SMSF Association and can be <a href="https://www.smsfassociation.com" target="_blank">contacted here</a>.
 
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