|CHANGES IN 2017|
|This article includes the proposed changes in UK law from 6 April 2017 relevant to UK migrants and Australian ex-pats who wish to transfer their UK pension money to Australia. To search the page for the changes, look for "6 April 2017". |
If you want to look at the proposed changes yourself you can go to:-
Finance Bill 2017: draft legislation overview documents
HMRC: draft legislation
HMRC: overseas pension schemes changes
Changes in Australian law from 1 July 2017 are also covered in this article.
In summary, since 6 April 2015 as a result in a change to UK pension law, in order for a fund to be a QROPS, the benefits payable to the member under the fund from UK sourced pension money must not be payable before the member reaches the age of 55 unless the member has retired on ill-health grounds.
The problem for Australian superannuation funds was that under Australian superannuation law earlier withdrawals are permitted in various circumstances, the better known ones being severe financial hardship and compassionate grounds. But this meant that Australian funds were non-compliant with this new requirement. In June 2015 HMRC decided that no Australian fund could comply with the new requirement even if they had amended their constitution (trust deed) to comply. However in mid-August 2015 HMRC accepted that an Australian fund which restricted membership to those aged 55 and above would comply. See a full description of what happened (opens in new window).
Firstly a correctly drafted trust deed is required, one which will satisfy HMRC. This would prohibit a release of funds when not permitted under UK law (age 55 or retirement on ill-health grounds). Generally, it would also prohibit membership of the fund to those who have reached the age of 55, so that all members of the fund must be 55 or over (some variation of this may be permitted, requiring special drafting of the trust deed).
Secondly it is important to bring to the attention of HMRC that your fund is using a correctly drafted trust deed. Until new forms are introduced by HMRC (probably from 6 April 2017), this has to be done by sending a copy of the deed to HMRC with a covering letter. My deed is known to HMRC and was used by the very first successful 55+ QROPS applicant in the post 6 April 2015 regime (and the vast majority of the others since then).
The over 55 QROPS works with brand new funds, as well as with existing funds, including those which have been removed from the QROPS list (now called the "ROPS notification list").
Since you can have as many SMSFs as you like, some people have a separate fund dedicated to receiving the UK pension money (this may help the fund to comply with the investment restrictions and the withdrawal restrictions). On the other hand, each fund will have auditors' fees. There will also be accountants' fees unless you do this yourself.
For a new fund, my packs enable you to establish your own SMSF with the trust deed known to HMRC. The pack also advises on how to complete Form APSS251 and how to submit this to HMRC, and then how to transfer UK pension moneys or assets to the fund. See the qrops 55+ set up packs.
For existing funds there is a pack available to enable you to amend its trust deed, and to apply for the fund to go on the ROPS notification list. The pack has an amending deed, covers how to complete Form APSS251 and how to submit it to HMRC, and then how to transfer UK pension moneys or assets to it, see existing smsf to qrops 55+ pack.
In all cases, it is important to keep the fund in operation at least till it receives its first notice of compliance from the ATO (after the first audit).
Please note that HMRC is careful to say that inclusion in the ROPS notification list does not guarantee that a fund is in fact a QROPS. This means that there is no guarantee that a transfer to a fund on the list will not attract UK tax. In the pack, I advise that in my professional opinion if you use my trust deed and follow the steps in the pack and as a result the fund appears on the ROPS notification list, then a transfer of UK sourced pension money can be made to your fund without incurring UK tax. Please note however, that no lawyer takes the responsibility of guaranteeing a particular outcome. For that, you would need an insurance policy. Having said that, hundreds of such transfers have now taken place since September 2015 and so the over 55 QROPS can now be regarded as tried and tested.
If your UK pension money is in a personal pension scheme (defined contribution scheme, now known as a money purchase scheme) then it can be invested in the way permitted by such a scheme. Many such schemes are in managed funds, or the money can be in a SIPP (self invested pension scheme). One real advantage in keeping the money in such a scheme is that under UK pension and tax law, earnings within the scheme are tax free. When you transfer the money to Australia however, those earnings (since the date when you became tax resident in Australia) will be taxable under Australian law either at your marginal rate of tax or, if you make an election for the fund to pay the tax, at 15%. This assumes the transfer is done more than 6 months after you became Australian tax resident. If within 6 months, then there would be no Australian tax to pay see the six month window and Australian tax payable on the transfer into the QROPS. Please note that whilst the money is in a managed fund or SIPP it does not have to be kept in pounds. The important thing is who holds the money, not which currency it is in.
If your UK pension money is in a salary based (defined benefit) scheme then you will have to decide whether to keep it in that scheme or to transfer it out to a SIPP or similar and keep it there until you reach age 55. There will be many factors affecting this decision. One will be whether the current Cash Equivalent Transfer Value (CETV) is a particularly good one because of current low UK interest rates. Another will be whether there is any age limit in the salary based scheme which restricts your ability to transfer out of the scheme (you need to check this with the scheme manager). A third will be whether it is prudent to transfer out of such a scheme at all, bearing in mind it will usually be inflation proof and provide benefits to your spouse or family on your death. And a further consideration will be whether the scheme is currently properly funded by the employer or whether it will continue to be properly funded. Another factor will be whether it is possible that transfers from the scheme may be prohibited in the future by a change in UK law. Finally it may be that in order to transfer the money to Australia at the age of 55, you will need to split it into different funds in order to achieve the transfer without exceeeding the non-concessional contribution limit (see just below). If so, then you will need to do this by transferring to a SIPP anyway at some point.
1 This reduces to $100,000 from 1 July 2017. 2 This reduces to $300,000 from 1 July 2017 (there are tapering transitional provisions if the bring forward provisions were invoked prior to the change).
You need to consider the non-concessional annual contributions cap with three more things in mind.
The first is that if any part of the amount transferred from a UK pension fund to an Australian superannuation fund becomes that fund's assessable income, then that part does not count towards the cap. What part of the amount transferred becomes the fund's assessable income? Well, it is the amount assessable to tax based on the growth of the UK pension fund since you became an Australian tax resident which you have elected on form NAT 11724 shall be paid by the fund. See Australian tax payable on the transfer into the QROPS below how this may be calculated. You can see from that section that you can elect on form NAT 11724 for the fund to pay the tax on it, instead of you paying it personally. If you make that election the growth element (or that part of it that the election covers) becomes the fund's assessable income and does not count towards the cap.
The second thing to bear in mind is that if you are going to send the money in separate tranches, then each tranche should be from a separate fund so that there is nothing left in the fund after the transfer. This is important to enable you to elect for your superannuation fund to pay the tax on any increase in value of the tranche since you became an Australian resident. This is because the election cannot be made unless the transfer extinguishes the fund being transferred. So the fund must either be reduced in some way or split into separate funds and each fund transferred separately. The usual way to split the fund is through a UK SIPP. There are several SIPP providers who are now used to offering this service. This won't be as important if there has been little growth in the fund since you became as Australian tax resident (because in that case you may not need to make the election).
The third thing to bear in mind is that care needs to be taken if you are organising a transfer into an Australian superannuation fund of UK pension money which exceeds the applicable non-concessional contribution cap. This is more important now that the annual cap is about to be drastically reduced. Under Australian law a superannuation fund is not permitted to accept a single amount which is in excess of the non-concessional contribution cap at all. Strangely, if there are a series of amounts which are all less than the cap, but which in aggregate exceed the cap, then the superannuation fund can accept them all as contributions.*
* See the ATO's ID 2007/225. See also ID 2008/90 and 2009/29.
If an Australian superannuation fund is not permitted to accept the amount (because it is a single amount over the applicable cap) it has 30 days to return the money to the "entity or person that paid the amount" and if it does not do so it could face an administrative penalty and be directed by the ATO to repay the money. This could either mean payment back to the UK pension scheme or to the member. In most cases it will be difficult to send the money back to a UK pension scheme because the scheme probably couldn't accept it, so it would have to be paid to the member. Doing this will have tax consequences because it would effectively be a lump sum payment from the UK pension to the member (because the fund has been unable to accept the transfer). Such lump sum payments are outside the double taxation agreement and would therefore be chargeable to UK tax and also to tax in Australia as a lump sum payment from a foreign superannuation fund (although it may only be the growth element that is taxed). There would, however, be double taxation relief.
If however, each tranche is less than the applicable cap, but the aggregate of tranches is more than the cap, then the fund could accept the transfers. In these circumstances there are comprehensive provisions which deal with the consequences. The ATO issues an "excess non-concessional contributions determination" upon processing the fund's annual tax return for the year in question and invites the member to complete a Form 74824 (Excess Non-concessional Contributions Election Form).
The member is given three options on this form.
Option 1 is to elect to release the excess to the member. If this is done, the amount the member should receive from the fund is the amount of the excess over the cap plus 85% of the "associated earnings" amount. The associated earnings amount is a notional amount calculated by the ATO and contained in the ATO's excess non-concessional contributions determination. It is calculated on the assumption that the excess amount is in the fund from the start of the financial year until the date of the determination, and that its earnings are at the rate of the ATO's General Interest Charge (GIC) calculated on a daily compounding basis. The release of 85% of this amount is because on the same notional basis, the fund would pay 15% tax on the same associated earnings. The 85% is the associated earnings amount is added to the member's assessable income and so the member must pay tax on this amount at the marginal rate of tax. The member gets a 15% non-refundable tax offet to represent the tax notionally paid by the fund.
There are two examples on the ATO's website:
Example 1 - ReginaldYou can see that the calculations of the associated earnings in these two ATO examples differ and currently this remains unexplained, so they should be regarded as providing a rough guide only. In Reginald's case, it can be seen that roughly a $100,000 excess contribution would be taxed at just over 4% where the member's marginal tax rate is 37%. Extrapolating from this example, for a member with a marginal tax rate of 45%, a $100,000 excess contribution would be taxed at 5.7% as a rough calculation. Belinda seems to have done a lot better. I would welcome some real life examples to post here.
R, who has a marginal tax rate of 37%, exceeds the non-concessional contributions cap by $100,000. The ATO issues an excess non-concessional contributions determination which shows an associated earnings calculation of $19,000. The determination calculates the total release amount of $116,150 ($100,000 plus 85% x $19,000). R elects option 1 on form 74824: "release amounts from superannuation".
Therefore R receives $116,150 from his super fund. The ATO adds $19,000 to his personal assessable income, increasing his personal tax bill by $7,030, however R can use a tax offset of $2,850 (15% of $19,000), so the net additional tax to pay is $4,180.
Example 2 - Belinda
B exceeds the non-concessional contributions cap by $100,000. On 1 November following the tax year in which the excess contribution is made, the ATO issues an excess non-concessional contributions determination which shows an associated earnings calculation of $13,814. The determination calculates the total release amount of $111,742 ($100,000 plus 85% x $13,814). B elects option 1 on form 74824: "release amounts from superannuation".
Therefore B receives $111,742 from her super fund. The ATO adds $13,814 to her personal assessable income, however she can use a tax offset of $2,073 (15% of $13,814).
Option 2 is to elect to pay excess non-concessional contributions tax. The fund must pay to the member this amount of tax payable but may keep the remainder of the contribution. The excess non-concessional contributions tax is on the excess over the cap at the top marginal tax rate (currently 49% but falling to 47% from 1 July 2017).
Option 3 is to state that the member's super fund balance (in all super accounts) is nil. This has the same consequences as option 1 except that the fund is unable to pay any money to the member (this might happen if the transferred money has already been paid to the member and the member has no other super accounts).
Since under any of these options the member is receiving personally some UK sourced pension money, the effect of UK law should also be considered here. Whether special arrangements need to be made will depend on whether the member has the necessary period of non-UK tax residence. See withdrawal restrictions and the incidence of UK tax below.
Also you will be unable to take advantage of the enhanced "bring forward limit" for transfers from that age (see "The Australian non-concessional cap" above).
Once you reach 75 you will not be able to make any transfers from a UK pension fund to an Australian superannuation fund because you are not permitted under Australian law to make non-concessional contributions after that age.
In the case of an occupational pension scheme (one funded by your employer), then you will be able to ask for the Cash Equivalent Transfer Value (CETV), which is a lump sum amount representing the value of your scheme. If you are within one year of the normal pension age however, you may lose the right to transfer the cash equivalent of the scheme. You can find out about this by asking the scheme administrator. In particular you need to find out when you will lose the right to transfer.
In addition to this, salary based (defined benefit) schemes offer substantial additional benefits, for example increases for inflation and a pension to your spouse on death which benefits will inflate the CETV. Should you consider transferring the money from such a scheme you will need advice about the prudence of this. The provision of such advice is now a UK legal requirement unless the value is small.
From 6 April 2015 the UK government restricted transfers from unfunded public sector defined benefit (salary based) occupational pension schemes. These are the pension schemes in the NHS, Armed Forces, Civil Service, Police, Teachers, Fire-fighters and some others. This restriction has been done by an amendment to section 95 of the Pension Schemes Act 1993 which stops transfers out from such schemes to other schemes holding the pension benefits as cash or assets. Note also that there is also a new power to cap the Cash Equivalent Transfer Value for funded public sector defined benefit schemes. This is said to be to protect the public purse, if required.
Note that when transferring money into the QROPS, there is no need to change its currency. The transfer is effected by changing its ownership, not its denomination. So it can be retained in foreign currency if desired.
However, if the amount transferred has increased in value since you started your Australian tax residency (unless the transfer was within 6 months of your Australian tax residency - see below), there will be a taxable element as far as Australian tax is concerned. If you think of it, if you had transferred the money into an Australian superannuation fund on the day of your arrival in Australia, any increase in the value of the fund would have been taxed at 15% since then (in Australia a superannuation fund in its accumulation phase pays 15% tax on its income).
There are various rules which apply to the tax calculation. Firstly, if the money has increased in value because of contributions, then this part of the growth will be ignored.
In the case of a defined contribution (money purchase) scheme then provided there have been no contributions since the date of permanent residence the calculation is the difference between the amount transferred and the value of the fund at the time of permanent residence. The modern approach of the ATO (based on ATO ID 2015/7) is that only the exchange rate at the time of receipt is to be used in this calculation. This means that if the money was held in the fund in a foreign currency, the calculation should be done in that foreign currency and then converted to Australian dollars at the exchange rate at the time of transfer. However, the ATO may be willing to consider using differential exchange rates in an appropriate case where this would be fairer.
It is wrong to calculate the growth element of final salary (defined benefit) scheme by taking the cash equivalent transfer value at the time of transfer and deducting from this the cash equivalent transfer value at the time of permanent residence. This is because there are a number of elements involved in the change in value: final salaries in the employment, changes in periods of qualifying service, the age of the employee, the health of the employee, inflation, index linked stock returns at the time of valuation, the effect of scheme's rules and the extent to which the scheme is funded. These elements may be unrelated to "growth", and it is only the growth that is taxable. They may also be only notional at any one point in time. Instead, the modern approach of the ATO is to apply tax based on inflation since the date of permanent residence.
Liaison with the ATO about the tax to pay can either be by direct contact (see the ATO site for this) or by obtaining a private ruling.
Who pays the Australian tax arising on the increase in value? You can pay the tax at your marginal rate of tax or you can elect in writing on form NAT 11724 to have the fund pay the whole or a proportion of it at 15%. Whether you make that election may depend on whether you have any taxable earnings in Australia in the year in question, and whether you could make use of any tax loss if the value has gone down.
There are three further things to note about the election. Firstly, there is a requirement in section 305-80 of the Income Tax Assessment Act 1997 that in order to make the form NAT 11724 election all the money in the UK pension fund must be transferred. This means that if the money is transferred in tranches because of the non-concessional contributions cap, each tranche must extinguish the fund sending the money. See the transfer: how financial caps apply for a discussion on whether you may have to send the money in tranches.
Secondly, making the election can affect the amount counted towards the contribution cap. The amount you elect as assessable income of the fund does not count towards the contribution caps. As an example, suppose your UK pension fund was worth $170,000 at the time you became tax resident in Australia. When you transfer it to your Australian superannuation fund it is worth $200,000. This means that the amount assessable to tax is $30,000. Then, provided you elect on form NAT 11724 for the fund to pay tax on this element (that is, $30,000 x 15%) for the purpose of the contribution cap, the actual contribution that year is regarded as $170,000 and not $200,000.
Thirdly, the election can create a "taxable component" in the fund. If you intend not to withdraw from the fund until the age of 60 then this is not an issue. But any taxable component in the fund withdrawn prior to the age of 60 (on being permitted to do so, for example on retirement or transition to retirement) may be taxable on receipt. This is because by section 295-200(2) of the Income Tax Assessment Act 1997 these monies are added to the assessable income of the fund. Lumps sums are only taxable on receipt if they exceed the low rate cap, which is $195,000 for the 2016/17 tax year, but income streams are treated differently.*
From 1 July 2017 tax will be payable on any type of withdrawal before the age of 60, where there is a taxable component in the fund.
When does the six month period start? For migrants into Australia, it is when the migrant arrives with the intention of staying permanently (Tax Ruling 98/17). For returning Australians, it is when they return to live in Australia. For those who arrive on temporary visas it will depend on various factors (see Tax Ruling 98/17). And on my reading of the legislation, the date of transfer is the date of receipt of the money and not the date of transmission, so if your fund has done well, you need to get the timing right.
There is a similar 6 month window in the case of Australian tax residents who have worked overseas. Then if a superannuation lump sum is paid upon the termination of that employment, the 6 months starts at the date of termination. There are certain other conditions which need to be satisfied for this tax exemption to apply.
|Is there tax relief on contributions?||Yes||Yes|
|Is there a limit on contributions?||Yes||Yes|
|Does the fund pay tax on contributions at the time of receipt?||Yes, normally at 15%*||No|
|Does the fund pay tax on its income?||Yes, normally at 15% while in accumulation phase, zero when in retirement phase||Largely no|
|What proportion can be taken as a lump sum, when permitted?||100%||100%|
|Are withdrawals taxed?||After the age of 60, no||Yes, except for the first 25%|
As you can see from the above, the main difference between the two regimes is that whereas in the UK the fund pays no tax on the contributions nor on its income during the accumulation phase (before a pension is taken), in Australia the fund does pay tax on these. Once a pension is taken, however, this is reversed: in the UK most of the pension receipts are taxed, but in Australia (after the age of 60) they are not.
However an Australian superannuation fund will not pay tax on a transfer-in from a foreign pension scheme because this is classed as a "non-concessional" contribution. Tax will be payable on the increase in value of the lump sum transferred-in since the start of Australian tax residency if the transfer is after the 6 month window: see timing of the transfer into the QROPS - the six month rule and Australian tax payable on the transfer into the QROPS.
If your pension money remains in the UK pension system, then all payments from the UK pension to you as an Australian tax resident will be subject to tax as determined by the double taxation convention. Lump sums are outside the double taxation convention and are therefore chargeable to tax both in the UK and in Australia (although in Australia it may only be the growth element that is taxed). Pension receipts are taxable only in Australia but are treated as part of your assessable income and are not tax free as they would be if they came from the Australian superannuation regime.
What is that period? For transfers where the money was received by the fund before 6 April 2017 the period is five clear UK tax years of non-UK tax residency. For transfers where the money was received by the fund on or after 6 April 2017 the period is ten clear UK tax years of non-UK tax residency. Since a UK tax year runs from 6 April to 5 April, potentially a member might have to wait up to six or eleven years respectively for the period to expire.
You need to be careful as to the start date of your tax residency and that you have not become tax resident in the UK unexpectedly. Since 6 April 2013 there has been a new test for tax residence in the UK - see the RDR3 test. You should bear in mind that it is possible to be tax resident in two countries at once.
After the relevant period of clear UK tax years of non-UK tax residency have passed, where UK sourced pension money is in an Australian superannuation fund, a transfer of that money to other funds or to the member will be covered only by the Australian superannuation rules.
Transfers to other funds
If the relevant period of clear UK tax years of non-UK tax residency have not yet passed, UK tax will arise if the UK sourced pension money is transferred to a non-QROPS (this would be an unauthorised payment). Once the period has passed then the UK sourced pension money can be transferred to a non-QROPS without incurring UK tax.
Payments to the member
In any case where a payment is made to the member who is not yet aged 55, nor retired due to ill-health (nor in other circumstances permitted by UK law after 6 April 2017) by an Australian fund from the UK sourced pension money such a payment will be unauthorised and will be subject to UK tax.
Where a member has reached 55, then if the relevant period of clear UK tax years of non-UK tax residency have passed, no UK tax will arise on a payment to the member (of course the payment must comply with Australian rules as well, so in practice a withdrawal could not be made until the preservation age).
Where a member has reached 55, if the relevant period of clear UK tax years of non-UK tax residency have not yet passed, then special arrangements need to be made to avoid payments to the member being subject to UK income tax. Firstly it is important to ensure that the withdrawal is permitted by UK pension and lump sum rules (otherwise it will be an unauthorised payment). Care needs to be taken. The following are authorised categories of withdrawal in this context:-
Whilst it is early days with these provisions and advice needs to be taken about these matters, the UK tax result would appear to be that:-
1 In UK terminology the pension arrangement is called a "Flexi-Access Drawdown Fund" and if there is a lump sum of this type it is called a "Pension Commencement Lump Sum" 2 Depending on its terms and who is paying it, this is called a Scheme Pension or a Lifetime Annuity 3 These are called "Uncrystallised Funds Pension Lump Sums"
This is the result of adding sections 636A(1A) and (1B) of the Income Tax (Earnings and Pensions) Act 2003 (which contains the 25% tax free - 75% taxable provisions) to the "member payment provisions" in Schedule 34 of the Finance Act 2004.
To ensure that a payment to the member is made in the correct category some formalities are required. Also an obligatory notice to the member and a report to HMRC is required. I can provide advice on these matters, including the necessary paperwork.
Where a member has made transfers into the QROPS fund which exceed the non-concessional contributions cap, as has been seen above the member may opt to receive the excess from the fund plus 85% of the notional applicable earnings arising from the excess contribution. Where the member is 55 or over, but has not yet completed the relevant period of clear UK tax years of non-UK tax residency, then the member will need to ensure that the payment is made in the correct category as listed above. Again I can provide advice on these matters, including the necessary paperwork.
The period used to be three years. The five year period applies to events after 5 April 2017: amendment to section 267 of the Inheritance Tax Act 1984 (by the Finance Act 2016).
The reporting rules are currently as follows:-
For the reporting requirements, see the aptly named Pension Schemes (Information Requirements - Qualifying Overseas Pension Schemes, Qualifying Recognised Overseas Pension Schemes and Corresponding Relief) Regulations 2006. This has been amended several times.
A QROPS now has to re-notify HMRC at five-yearly intervals that it continues to meet the conditions for a QROPS. If a QROPS fails to re-notify, it will lose its status as a QROPS.
When is the first time this will need to be done?
This depends on the date of the letter from HMRC granting QROPS status. For QROPS whose letter date is 1 April 2010 or later, then it will on the fifth anniversary of the letter and every five years anniversary after that. For QROPS whose letter date is before 1 April 2010, then it will be a date notified to the QROPS, but it will not be before 6 April 2016 or later than 31 March 2017.*
HMRC will send a reminder to the QROPS - this may be post or it may be sent by email but the requirement to re-notify is not conditional upon receiving the reminder. It is therefore essential that a QROPS should ensure that it has given its current postal address and email address to HMRC. If they change then HMRC can be notified on form APSS251A.
HMRC have decided to abandon the QROPS online system. However, it would appear that the new forms for use from 6 April 2017 will be online forms. Apart from that, it would appear that all contact will need to be by post or email.
If the TATF is used to invest in those type of assets which would not have been allowed had this money remained in a UK pension fund ("taxable property") then they are subject to substantial additional UK tax. This would apply for example to residential property, holiday homes, timeshares, fine art, antiques, fine wine, jewellery, boats, cars etc.
Therefore you need to be careful when considering trying to use your Australian superannuation fund to invest in such assets. You will need to consider both the Australian rules of investment and the UK ones. This applies however long you have been continuously resident in Australia. The rules apply to all QROPS and former QROPS. They don't apply to a non-QROPS into which the UK sourced money has been legitimately rolled over, unless (from 6 April 2017) that fund is a non-UK registered scheme.
These are complications which ought to be avoided if possible. It is one reason to avoid the temptation of taking 25% of your UK pension money "tax free" while it remains in the UK pension system (that would result in the remainder of the UK pension money going into a drawdown pension arrangement).
As for how the new flexi-access drawdown pensions which apply in the UK from 6 April 2015 can interact with Australian QROPS within the appropriate period of clear UK tax years of non-UK residence see this.
27 December 2016
Copyright © Jeremy Gordon
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