|Federal Budget 8 May 2018|
|This page takes into account any relevant proposals announced in the Australian Federal budget of 8 May 2018.|
|Latest UK regulations|
|This page also takes into account the effect of new regulations affecting the priority of payments to and from UK sourced pension money in an Australian QROPS (and other matters) as from 6 April 2018.|
|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. Instead, 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 and you are an Australian tax resident, then the tax treatment of your pension receipts is governed by the Double Taxation Convention. Under the DTC, you would only pay Australian tax (and not UK tax) on pensions paid by a UK pension scheme (this would be at your marginal tax rate with a deduction for the "undeducted purchase price" or UPP, which is based on contributions). However, a lump sum paid by a UK pension scheme is outside the DTC and so would be chargeable to tax both in the UK and in Australia. In the UK, the first 25% would be free of tax but the rest would be taxed at your marginal tax rate. In Australia, only the growth element of the lump sum since you became tax resident in Australia would be taxed (this is called the "applicable fund earnings" or AFE). To avoid double taxation, you would be able to offset one tax against the other. For the UK tax treatment of a transfer or withdrawal of UK sourced pension money once it is in the Australian superannuation regime see whether any UK tax is payable on rollover or withdrawal.
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.
In practice for Australian funds, this means that the fund must restrict its membership to those aged 55 or above, or to restrict the receipt of UK sourced pension money to those aged 55 and above. See why this is so (opens in new window). Effectively, this means you must wait till the age of 55 before transferring your UK pension money into the Australian superannuation regime.
You must also be tax resident in Australia at the time of the transfer and remain so for five to six years after the transfer otherwise the overseas transfer charge will apply.
The 55+ and residence conditions apply whether you are transferring to your own Self Managed Superannuation Fund (SMSF) or to a retail or industry super fund.
A correctly drafted trust deed is required, which ensures that under no circumstances can there be any leak of UK sourced pension money to a member which is not permitted by the UK rules. The HMRC form APSS251 (application for the fund to go on the list of QROPS - now called the ROPS list) asks how the fund achieves this compliance. And unless there are special arrangements, HMRC requires sight of the trust deed. HMRC is well used to the DirectDocs deed (the deed is used in the vast majority of ROPS list applications). You can set up a new SMSF which is QROPS compliance using a DirectDocs pack available here. The pack also comprehensively covers every step required including how to transfer the UK pension money or assets to the new fund.
For existing funds, it is possible to amend the trust deed so that it achieves QROPS compliance. There is a DirectDocs pack to amend the trust deed, and to apply for the fund to go on the ROPS notification list - available here. Again there are comprehensive instructions for each step and advice about how to carry out the transfer.
You can have as many super funds as you like, so 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). But this is not essential: it is possible to mix UK sourced pension money with Australian sourced money in the fund.
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).
It is also important to be an Australian tax resident at the time of the transfer and to remain so for five to six years. See here for the reason for this.
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, the QROPS regime and transfers made under it are 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 personal pension). 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% - see Australian tax payable on the transfer into the QROPS. 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. 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 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's administrators). 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.
You need to consider the non-concessional contributions cap with a couple of 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 (the "applicable fund earnings" - AFE) which you have elected on form NAT 11724 shall become the fund's assessable income. See Australian tax payable on the transfer into the QROPS below how the AFE may be calculated. The amount stated on the form does not count towards the cap. And it is taxed at 15% within the fund instead of at your marginal rate of tax.
The second thing to bear in mind is that you can only complete form NAT 11724 if the sending fund is empty after the transfer. This is important because if you decided to transfer the money in separate tranches, then in order to make the election on form NAT 11724 you will need to ensure each transfer is from a separate fund so that there is nothing left in the fund afterwards. So the sending 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. You won't need to split the fund if the transfer is below the relevant cap, or if there has been little growth in the fund since you became Australian tax resident, or if you decide intentionally to exceed the contributions cap.
Proposed work test exemption. In the budget of 8 May 2018 it is proposed that from 1 July 2019 people aged between 65 and 74 with less than $300,000 in all Australian superannuation funds will be exempt from the work test in the tax year after the tax year in which they stopped working.
We await the small print, but this may be of interest to UK migrants and ex-pats who are retiring to Australia and who are starting their superannuation balance in Australia from a low base.
You will be unable to take advantage of the "bring forward rule" for transfers from the age of 65. 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.
The first thing to happen is that the ATO will identify the excess contribution from the fund's annual tax return, whereupon it will issue an "excess non-concessional contributions determination". This invites the member to complete a Form 74824 (Excess Non-concessional Contributions Election Form).
The member is given two 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 tax 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 associated earnings amount is added to the member's assessable income 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.
Here is a worked example based on a General Interest Charge of 8.78% per annum (please note, this charge varies every quarter - you will need to check the current rate):
X, who has a marginal tax rate of 37%, transfers UK pension money to his fund but exceeds the non-concessional contributions cap by $400,000. X gets his fund's annual tax return to the ATO quickly after the end of the tax year, so that the ATO processes it quickly. On 1 October the ATO issues an excess non-concessional contributions determination. This calculates the associated earnings from 1 July the previous year to the date of determination. This is a calculation of $46,582.
The determination shows the total release amount of $439,594 ($400,000 plus 85% x $46,582). X elects option 1 on form NAT 74824: "release amounts from superannuation".
Therefore X receives $439,594 from his super fund. The ATO amends his personal assessable income for the year in which the transfer happened by adding $46,582 to his personal assessable income. Taking into account the medicare levy, this increases his personal tax bill by $18,167. However X can use the notional tax offset of $6,987 (15% of $46,582), so the net additional tax to pay is $11,180.
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 47%).
Since under either of these options the member is receiving personally some UK sourced pension money, the effect of UK law should also be considered here. Special arrangements to put the money into drawdown are required. See whether UK tax payable on rollover or withdrawal below.
In the case of a defined benefit occupational pension scheme (a salary based scheme operated 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 penson benefits in the 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, so you need to check this. You can find out about this by asking the scheme administrator.
You need to take into account that defined benefit (salary based) schemes offer substantial additional benefits, for example increases for inflation and a pension to your spouse on death. Although such benefits will inflate the CETV, should you consider transferring the money from such a scheme you will need advice about the prudence of the transfer. The provision of such advice is 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, called the "applicable fund earnings" or AFE. 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 calculation of the AFE. 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 Australian tax residence the calculation is the difference between the amount transferred and the value of the fund at the time of tax 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.
It is probably 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 start of Australian tax 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 ATO is willing to consider other methods of calculation if they are fairer. One of these is to apply tax based on inflation since the date of tax residence; another might be the application of a simple multiplier on the annual pension entitlement on the two dates.
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. Another way to handle this is to get the AFE calculated for you. I can provide advice on this on request.
Who pays the Australian tax arising on the AFE? 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, to make the election the tranche must extinguish the sending fund. See the transfer: how financial caps apply for a discussion on whether you may have to send the money in tranches, but also see intentionally exceeding the contributions cap.
Secondly, making the election affects the amount counted towards the contribution cap. The amount you elect as assessable income of the fund does not count towards the contribution cap. As an example, suppose your UK pension fund was worth $100,000 at the time you became tax resident in Australia. When you transfer it to your Australian superannuation fund it is worth $130,000. This means that the applicable fund earnings are $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 $100,000 and not $130,000.
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) will be taxable on receipt.
If the usual rules applied by both Australia and the UK produce the same result, then you be confident about your tax residency on any given date. But if the results differ then you may need advice or a determination.
For Australia, the usual rule is that a migrant becomes a tax resident when they arrive 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 the ATO residency site. There is a residency calculator there which will help.
For the UK there has been a new test for tax residency since 6 April 2013 - see the RDR3 test. The HMRC residency calculator has been withdrawn, hopefully temporarily. However there are useful flowcharts available from KPMG and from Berwin Leighton Paisner.
There is a similar 6 month window in the case of an Australian tax resident who has 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.
If having made the transfer from the UK pension scheme to the Australian QROPS, the member ceases to be an Australian tax resident within the relevant period then the 25% tax will be chargeable when that happens. However, this is only charged on the amount of the transferred money left in the QROPS or former QROPS at that time. Some care needs to be taken here, because the new priority rules are capable of deeming withdrawals as coming from earlier UK sourced pension money before later money.
This also works the other way, so that if the 25% tax arose at the time of the transfer and subsequently the member becomes resident in the country of the QROPS, the tax paid can be recovered back.
What is the relevant period for these purposes? It is five full UK tax years from the date of the transfer. UK tax years start on 6 April. So the five full tax years could effectively be six years less one day (if the transfer were done on 7 April).
There are different rules which apply depending on when the transfer of the UK pension money to the QROPS took place.
If it was before 6 April 2017 then UK tax will still apply if the member:-
at the time of the rollover or withdrawal is tax resident in the UK or had been earlier in that UK tax year or in any of the 5 preceding UK tax years
If it was on or after 6 April 2017 then UK tax will still apply if the member:-
- at the time of the rollover or withdrawal is tax resident in the UK or had been earlier in that UK tax year or in any of the 10 preceding UK tax years, or
- a period of 5 years has not passed since the transfer of UK pension money to the QROPS took place.
If UK tax does not apply under the above rules, then a rollover of UK sourced pension money to a non-QROPS or a withdrawal by the member can be done without incurring UK tax. Note that the investment restrictions continue to apply even if UK tax does not apply, and there are also special rules for the reporting obligations.
If UK tax does apply under the above rules, then it is necessary to consider how and to what extent it applies. The next two sections deal respectively with rollovers (transfers to another Australian superannuation fund) and withdrawals to the member (lump sum and pension payments).
If UK tax does apply under the above rules, then even authorised withdrawals of UK sourced pension money will be chargeable to UK tax, unless arrangements are made to put the money into drawdown. To explain, the types of withdrawals available from UK pension money changed on 6 April 2015. Now, as far as UK tax is concerned, there are only three things which can happen to UK sourced pension money:-
The UK tax result (for withdrawals if UK tax applies) is 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 assumes that such payments are outside the Double Taxation Convention because they are lump sums and not "pensions". There is some suggestion to the contrary in the Pension Tax Manual (PTM113210) but this refers to Double Taxation Conventions very generally and cannot be relied on for the UK-Australia DTC.
To be absolutely sure that a payment to the member is made in the correct category, special arrangements to put the money into drawdown are required. There is also an obligatory notice to the member and a report to HMRC. I can provide advice on these matters, including the necessary paperwork.
This will also be important 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 associated earnings arising from the excess contribution. Where the member is 55 or over, but UK tax still applies, then the member will need to make special arrangements to ensure that a withdrawal of the correct type is made. This may not be feasible until the member has reached Australian preservation age. Again I can provide advice on these matters, including the necessary paperwork.
If there is any danger that UK Inheritance Tax might apply because of these provisions, then the following should be noted. Unless there is a specific provision in the trust deed, a member's account balance in a superannuation fund will not form part of the member's estate on death because the trustee has a discretion to whom it should be paid. This means it would not be taken into account for UK Inheritance Tax purposes. However in Australia, a binding death benefit nomination (BDBN) is often used to direct the trustee to pay the account to a particular person or persons on the member's death. If a BDBN is made it removes the trustee's discretion and causes the account balance to fall into the member's estate. This means that it would be taken into account for UK Inheritance Tax purposes after all. For this reason, migrants should be careful when making a BDBN before they have definitely lost UK domicile or deemed domicile if their total estate is above the current UK Inheritance Tax threshold. And if there is any risk of a reversion to UK domicile then any BDBN should be reviewed.
These provisions apply from 6 April 2017 as a result of amendments to sections 267 and 272 of the Inheritance Tax Act 1984 in the Finance Act (No2) 2017, which received Royal Assent on 16 November 2017.
The information which must be given is shown on the relevant forms or on the above HMRC or UK Gov pages. Below should be treated only as an informal guide, and reference should always be made to the correct form and directly to the HMRC requirements:-
The reporting requirements are in 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 is on the fifth anniversary of the letter from HMRC saying that the fund is going on the ROPS notification list, and every five years anniversary after that.
HMRC will send a reminder to the QROPS - this may be by 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 are bringing back the previously abandoned QROPS online system. For new funds, details will be in their QROPS letters from HMRC when the new system is up and running. Existing funds should ensure their contact details held by HMRC are current. In any case, all forms for use from 6 April 2017 are online. They have multi-option functions so to ensure that the right questions appear they must be completed online. Then they should be printed out, signed and posted.
If the TATF/RFTATF 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 UK sourced pension money to invest in such assets. The rules apply however long you have been continuously resident in Australia and however long it has been since the transfer from the UK.
There are however, some exceptions. 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.
Also, from 6 April 2018, they don't apply to money in drawdown. Please note there are procedures which need to be followed to put the money into drawdown. And if you transfer the investment out of the fund, or within the relevant period leave Australia, the rules will start to apply again. Advice may be needed to get things right.
Reg 4A of The Pensions Schemes (Application of UK Provisions to Relevant Non-UK Schemes) Regulations 2006.
In some cases, such as if you are in receipt of a UK scheme pension (where you are receiving pension payments for life), the receiving scheme must mirror the arrangement and provide benefits "like for like".
In other cases, such as if the transferred money is in a member's drawdown pension fund or flexi-access drawdown fund, then there are two important rules. Firstly, the money must be transferred into an arrangement in which no other sums or assets are held. This can be achieved within an Australian superannuation fund by having a segregated account (if permitted by the fund's trust deed). Secondly, the current HMRC view is that the whole fund must be transferred. In practice this will mean that the fund can no longer be split into separate funds to enable transfers in a tax efficient way (see above). Also, although a withdrawal of 25% of a UK pension is UK "tax free", it will not be tax free in Australia for an Australian tax resident. This is because it is regarded as a lump sum received by the member from a foreign pension fund, and the growth element since Australian tax residency (the applicable fund earnings) will be taxed (and payable by the member at the member's top personal tax rate) unless the transfer was within six months of tax residency: see the six month window.
The Pensions Schemes (Application of UK Provisions to Relevant Non-UK Schemes) Regulations 2006 as amended (the most recent amendment applying from 6 April 2018).
14 May 2018
Copyright © Jeremy Gordon
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