UK proposes further transfer red tape
The UK government is consulting on a "stronger nudge to pensions guidance" when transferring pension benefits from an occupational defined contribution scheme. The idea is that members will need to discuss the transfer with a "pensions guidance specialist" (a specialist from a Citizens Advice Bureau or the Pensions Advisory Service) either face to face or electronically. A member will be able to opt-out of the advice if they have already had advice about the transfer from a UK licensed IFA. The consultation is here and ends on 3 September 2021.
In the case of a QROPS transfer, such a discussion is quite pointless, and the extra layer of red tape will simply serve to delay perfectly legitimate transfers.
The Financial Conduct Authority has already consulted on similar rules applying to personal pension schemes, such as an ordinary SIPP - see here. Under their proposals, the member can eventually opt-out generally, but this would trigger further enquiries from the provider.
Awaiting new UK regulations
The UK government has now completed its consultation on the new regulations to be made under the the Pension Schemes Act 2021. The consultation is here. As expected the plan is to restrict QROPS transfers to those who have been resident for at least six months (prior to the transfer request) in the same country as the QROPS is established. This would come into effect in Autumn 2021 and would only affect recent migrants.
|UK proposals affecting transfers
||The age of 55 (when a person can flexi-access UK pension money, and also therefore when the money can be transferred to the Australian superannuation regime) will be increased to 57 in 2028. This will affect those currently in their forties who plan to emigrate and transfer. On current plans, some types of employees and those whose pension schemes give them an unqualified right to their pension benefits from age 55 will be exempt from the increase. See the consultation response here
||UK Law: Finance Bill 2021
||The standard (unprotected) lifetime allowance is likely to be fixed at £1,073,100 (and no longer indexed) until April 2027.
|HMRC now using email instead of post for some things - see below.|
|HMRC is now sending out renotification notices.|
Funds started five years ago will need to renotify in order to keep their QROPS status - see below.
|Aus changes affecting transfers|
BUDGET 2021! The Government plans to abolish the work test from 1 July 2022 for non-concessional contributions (and therefore for UK pension transfers). It will still apply for concessional contributions. Allied to this it seems, the Government plans to increase the age limit to 74 for the bring forward rule.
The Government has already increased from 65 to 67 both the age under which people can make concessional and non-concessional contributions without satisfying the work test, and the age limit for the bring forward rule. These changes have effect from 1 July 2020.
Please note that neither page gives advice one way or the other. It is for you to decide based on the information you can gather.
|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 the six month window and Australian tax payable on the transfer into the QROPS.
Whether any UK tax is payable on rollover or withdrawal of UK sourced pension money which is in an Australian fund
How Australian tax residents are taxed on withdrawals from a UK pension scheme (opens in new window)
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 notifications). 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 until it is showing as "complying" on the Super Fund Lookup. These days, this usually happens soon after registration with the ATO.
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 have been tried and tested over many years.
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 invest 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.
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. A fourth will be how withdrawals from the scheme would be taxed in Australia as for which see this separate page. 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.
* From 1 July 2021 this will increase to $110,000.
† From 1 July 2021 this will increase to $330,000. The Government plans to increase the age limit for the bring forward rule to under age 75.
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.
† In previous years back to 1 July 2017, this cap was $1.6 million or more.
You will be unable to take advantage of the "bring forward rule" for transfers if you are aged 67 or over.† See "The Australian annual 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 Government plans to abolish the work test from 1 July 2022 for non-concessional contributions (and therefore for UK pension transfers). † The Government plans to increased this to 75 or over.
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 appears on the member's MyGov tax account, but is also sent by post. It invites the member to complete an election form (this is also known as ATO form NAT 74824).
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 in the release 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 the Excess Non-concessional Contributions Election Form: "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 (this is not the best option). 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 charged at 47% on the excess over the cap.
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.
Firstly, money purchase schemes: these are where the amount of the benefits depend on how much money is in the scheme. Contributions would have been made into these schemes and normally the money is invested one way or another.
Secondly, defined benefit schemes: these are where the amount of the benefits are calculated (in the first instance anyway) on some other basis, usually in the case of occupational schemes on final or average salary and length of service. Although contributions may have been made into these schemes, this would be to support the ability of the scheme to pay the benefits, rather than affecting the amount of those benefits.
You can transfer your benefits in these types of schemes. Normally the transfer is in the form of money. But, depending on the terms of the scheme it may be possible to transfer the assets underlying the scheme in specie, that is without selling the assets. Typically stocks and shares can be transferred in this way. After the transfer, such stocks and shares can be held in a stockbrokers' account in the name of the receiving fund's trustee. For other types of assets you need to check whether the transfer is permitted by Australian rules about acquisition of assets from related parties.
These schemes can also be transferred even if in payment (drawdown or "crystallised"), but special rules about the transfer apply. See special rules about this.
The transfer is achieved by completing the forms provided by the UK pension scheme. Normally you will not need any additional help to do this, and in my pack there is guidance as to what to expect and how to achieve the transfer.
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 from a UK licensed independent financial advisor (IFA) is a UK legal requirement unless the value is small. The advice which should be given is governed by the UK's Financial Conduct Authority (FCA). Such advice will cover whether you could get equivalent or better benefits by investing the transfer value instead. It is now clear that FCA expects the advice to compare the financial consequences for an Australian tax resident of taking the defined benefits from the UK scheme as lump sum and pension, with the consequences of transferring its value into the Australian superannuation regime and investing it there instead.†
One issue here is that by themselves, UK IFAs are normally not equipped to advise about the investment opportunities and tax arrangements applying to superannuation in Australia. Hence such advice has become difficult and expensive to obtain. This is one of the reasons why it is often best to transfer the CETV into a UK registered SIPP fund in the first instance. Several SIPPs accept non-UK residents. I can provide a list on request.
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.
† See sections 5.61 to 5.64 of the FG21/3 guidance available from this page.
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.
In the case of a defined contribution (money purchase) scheme then assuming 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.
In the case of a final salary (defined benefit) scheme the calculation is more difficult. If the member is still in the scheme then the value of the benefits will be affected by final salaries and changes in periods of qualifying service, and the question is whether this should be taken into account.
If the member has left the scheme (and is therefore entitled to a "deferred pension") then the most accurate calculation, which is acceptable to the ATO, is based on a comparison of the annual pension entitlement on the date of Australian tax residence and the date of transfer, calculated from known inflation revaluations for each component of the scheme.
Sometimes a value of the pension benefits is available for the date of Australian tax residence. However, in many cases it will be wrong simply to take the difference between the current CETV and that value to calculate the AFE. This is because the value may simply be a notional value of the benefits and not a transfer value; in other cases it will be a transfer value which is inaccurate because it is affected by unusual factors.
Liaison with the ATO about the AFE 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 professionally. I can provide such calculations on request, for a fee.
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 your level of taxable income in Australia in the year in question.
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 you must have no further interest in the sending fund. In other words, all the money in the UK pension fund must be transferred. This means that careful planning may be needed if the money needs to be transferred in tranches because of the non-concessional contributions cap. Care should be taken to use completely seperate accounts for the tranches if they contain AFE.
Secondly, making the election affects the amount counted towards the non-concessional contribution cap. The amount you elect as assessable income of the fund does not count towards the 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.
It is not always appreciated that due to a quirk in the legislation governing how the AFE is calculated, the ATO regard all the AFE in a foreign superannuation fund as loaded into a partial transfer or withdrawal from that fund (see ATO ID 2012/48), and not just a proportion of it.
This has implications when considering whether to take a pension commencement lump sum ("tax free cash") from a UK pension scheme.
Joe (an Australian resident) has a UK pension pot of £400,000 in a money purchase (defined contribution) scheme. This was worth £310,000 when he first became an Australian tax resident, so the AFE is £90,000. He withdraws 25% "tax free" cash of £100,000 from the UK pension pot leaving the rest in cash. In Australia the whole £90,000 is charged to tax, payable by Joe at his marginal rate. The remaining pension pot of £300,000 held by the UK pension scheme no longer contains any AFE, however.
If instead, Joe had taken his tax free lump sum from a UK defined benefit scheme, and therefore started his annual pension from that scheme at the same time, the loading of the AFE into the lump sum would not happen (the AFE would be apportioned as explained in ATO ID 2012/49). However his pension receipts would be charged to Australian tax on receipt.
In the context of pension transfers, this loading of AFE into a partial transfer has other effects which provide opportunities to reduce the overall amount which needs to be transferred, and so help to keep within the non-concessional contribution caps.
Ingrid's UK pension fund (SIPP A) holds the equivalent of $640,000 of which $200,000 is AFE. Ingrid transfers $200,000 from SIPP A to SIPP B which is a completely separate SIPP account, leaving $440,000 in SIPP A. See why SIPP B must be a completely separate account. Because of the effect described in ATO ID 2012/48, all the AFE is now held in SIPP B and there is no AFE in SIPP A. Ingrid then withdraws a 25% pension commencement lump sum from SIPP A, reducing it to $330,000. Since there is no tax in SIPP A there is no Australian tax to pay on this withdrawal, and it is not subject to UK tax either. Ingrid then transfers both SIPP A and SIPP B to an Australian QROPS being careful to transfer SIPP A into a segregated account because it is now in drawdown (see the reason for this). She completes form NAT 11724 for the QROPS to pay tax on the AFE of $200,000 at 15%. Since there is no AFE in SIPP A there is no further Australian tax to pay.
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 is a useful flowchart available from KPMG.
All links open in new windows.
If these rules produce the same result, then you can be confident about your tax residency on any given date.
But if the results differ then you may be tax resident in the two countries at the same time, which is perfectly possible under UK and Australian domestic law. However, Article 4(3) of the Double Taxation Convention provides that you can only be tax resident one or the other country for the purpose of the Convention. Since the Convention covers most taxes which are payable by an individual, for most practical purposes, Article 4(3) will apply. Then there is a tie-break provision which determines tax residency for the purpose of the Convention, determined by closeness of personal and economic relations, nationality, or by agreement between the tax authorities.
There is a similar 6 month window in the case of an Australian tax resident who has worked overseas and who receives a superannuation lump sum termination payment as a consequence of a termination of employment. For such a payment, 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).
Eliza, a UK citizen aged 65, follows her family to Australia on a permanent resident visa. She arranges for her UK pension benefits of £180,000 to be transferred into an Australian QROPS. It is put into drawdown and she withdraws it in full, tax free. She returns to the UK for unexpected personal reasons three years after her arrival in Australia. She is therefore classed as a temporary non-UK resident between the time she left the UK and her return to the UK. Since she has withdrawn more than £100,000 whilst a temporary non-UK resident she should declare £180,000 to the UK tax authority on return, and pay the tax arising on this money.
There are two different tests for this. Which one should be used depends on when the transfer of the UK pension money to the QROPS took place.
If it was before 6 April 2017 then UK tax rules 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 rules will still apply if:-
- at the time of the rollover or withdrawal the member 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 rules do not apply under the above tests, 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 rules do not apply, and there are also special rules for the reporting obligations.
Note also that it is possible for these periods to revive if you revert to UK tax residency.
If UK tax rules do apply under the above tests, 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 rules do apply under the above tests, then even some authorised withdrawals of UK sourced pension money held in an Australian fund will be chargeable to UK tax. This can be avoided by making sure the money is in drawdown. To explain, the types of withdrawals available from UK pension money changed on 6 April 2015. Now, as far as UK tax rules are concerned, there are only three things which can happen to UK sourced pension money:
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"
The UK law which applies to UK sourced pension money in a QROPS is in Schedule 34 of the Finance Act 2004. There is no attempt to tax payments of type (a) or (b) made from a QROPS. But payments of type (c) are subjected to UK tax. Since payments of type (c) are from funds not in drawdown it will be essential when making withdrawals from UK sourced pension money in a QROPS to make sure it is in drawdown first. This is because a payment from money in drawdown (in UK terms) can never be a Uncrystallised Funds Pension Lump Sum (UFPLS).
Starting an Australian type account based pension will automatically put UK sourced pension money into drawdown, but it can also be done by designating the UK sourced pension money to pay a pension sometime in the future. Either way, it is obligatory under UK law to provide a flexi-access statement to the member if this is the first time the member has "flexi-accessed" pension money (in UK terms). What needs to be in the statement is described in the HMRC Pension Tax Manual (PTM166200), but I can provide formal advice on this if required.
The issue about a UFPLS paid from UK sourced pension money from an Australian superannuation fund being charged to UK tax 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. 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 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.
Does it matter to lose status as a QROPS?
Not if all transfers have been completed. A fund only needs QROPS status to be able to transfer-in UK pension money. Note however, that all the other things which apply to the UK sourced pension money continue to apply despite the loss of QROPS status - this includes the reporting obligations, UK tax and transfer restrictions, and restrictions on what the money can be used to invest in.
When does renotification 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. Since all Australian funds were removed from the list in 2015 (except one),* and the first new fund to receive the notification letter was 13 August 2015, it is in late 2020 that renotification started.
* See why this was so (opens in new window) .
Will the QROPS be informed it needs to renotify?
HMRC will send a reminder to the QROPS - this will be by email if the QROPS has confirmed to HMRC that it wishes to use email, otherwise it will be by post. 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 email and postal address to HMRC. If they change then HMRC can be notified on form APSS251A.
How is renotification done?
This is done on form APSS251. Some of the questions on the form may be difficult for you to answer because they ask for references to Australian law. If you established your QROPS using a DirectDocs establishment pack then you can simply repeat the information you gave originally on this form from instructions in the step by step guide. Otherwise you can purchase the instructions for $50 from here.
HMRC will correspond by email to your QROPS if you (as scheme manager of the QROPS) confirm to HMRC:
The postal contact details are:
QROPS Transfers and Registrations Team, Wealthy Midsized Business Compliance, Ferrers House, Castle Meadow Road, Nottingham, NG2 1BBplease contact me if you need the email contact details
The above notification will only work if HMRC recognises that the communication has come from the correct source.
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 this is an unauthorised payment and 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 which has been put into drawdown on or after 6 April 2017. 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 if you leave Australia within the relevant period, 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.
Subject to the Australian age and financial limits the fund can usually still be transferred, but a crystallised fund is generally indivisible and so partial transfers are not allowed. In practice this will mean that the fund cannot be split into separate funds which may be required to enable transfers in a tax efficient way (see above). For this reason, if it is sensible to take a pension commencement lump sum, it is often better to do this after splitting the fund. But see how "tax free" cash from a UK scheme (a pension commencement lump sum) is taxed.
It is important that a fund in drawdown 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).
For all other types of scheme you will need to check with the administrators of the scheme whether they are transferable once in payment. Generally, defined benefit schemes cannot be transferred once pension payments have been started. Other types of pension schemes which provide a pension or an annuity may be transferable but only if the receiving scheme mirrors the arrangement and provide benefits "like for like".
Regulations set a priority of payments and transfers from UK sourced pension money, depending on how and when it got into the fund and the nature of the withdrawals.* The provisions are complex and advice may be needed. The priority rules can be a concern where a member has pre-6 April 2017 UK sourced pension money and later UK sourced pension money across one or more funds and the member wishes to rollover the earlier money to a non-QROPS. Unless precautions are taken the deeming provisions may convert this innocent transaction into an unauthorised payment.
* 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).
25 July 2021
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