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Taxing unrealised gains in superannuation under Division 296

 

Australia’s superannuation system has seen a number of significant changes in recent years.

 

 

One of the most noteworthy is the proposed additional 15 per cent tax on earnings on superannuation balances above $3 million (Division 296 tax), due to commence on 1 July 2025.

The Division 296 tax was originally announced in the lead-up to, and as part of, the Government’s Federal Budget 2023–24. The details of the Division 296 tax are contained in the exposure draft Treasury Laws Amendment (Better Targeted Superannuation Concessions) Bill 2023 (draft Bill) and accompanying explanatory memorandum (draft EM) which was released for consultation on 3 October 2023.

The draft Bill and draft EM follow the release of an earlier consultation paper on 31 March 2023 and propose to insert new Division 296 into the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) to give effect to the announced measure.

Below, we examine how Division 296 will operate if implemented in its current form, some tips and traps that may catch out taxpayers and tax professionals, and some concerns with the design of the draft Bill.

How Division 296 tax is proposed to operate

Determining the amount of Division 296 tax that superannuants with a total superannuation balance (TSB) of more than $3 million may be liable to pay will require them to undertake several calculations.

Broadly, impacted superannuants will be required to use the relevant formulas in the draft Bill to:

  1. calculate the percentage of the earnings that are attributable to the proportion of the individual’s TSB above $3 million — this is based on the difference between the TSB at the end of the income year (year end) and the proposed $3 million threshold (Division 296 tax will apply only to earnings on balances above the proposed $3 million threshold);
  2. calculate the individual’s adjusted TSB by adding certain withdrawals, and subtracting certain contributions, for the year from the TSB at year end;
  3. calculate the amount of the basic superannuation earnings (BSE) used to determine the Division 296 tax liability — by subtracting the TSB at the end of the previous income year from the adjusted TSB calculated in Step 2 above;
  4. calculate the taxable superannuation earnings (TSE), which is the proportion of the BSE that will be subject to Division 296 tax, by multiplying the BSE (less any unapplied transferrable negative earnings), as calculated in Step 3, by the percentage calculated in Step 1 above; and
  5. calculate the amount of Division 296 tax — by multiplying the amount in Step 4 by the proposed tax rate of 15 per cent.

Tips and tricks

As is the case with most legislative provisions, in understanding the operation of Division 296 tax, regard must be had to important notes, numerous exceptions and common misunderstandings.

Some key points are discussed below.

Withdrawals and contributions

The purpose of adding back withdrawals, and subtracting contributions, from the TSB at year end in step 2 above is to ensure that the TSB used in the calculation of Division 296 tax reflects only the change in the value of the member’s balance from the start to the end of an income year.

In effect, this is a ‘balance sheet’ proxy for calculating the actual earnings of the superannuation account, instead of basing this on the member’s share of the ‘profit or loss’ made by the fund. Withdrawals are added back to prevent taxpayers from taking money out of their superannuation account(s) to avoid being liable for Division 296 tax.

Conversely, contributions are excluded from the calculation as they do not represent the fund’s earnings but rather an injection of capital. However, various exclusions to the withdrawals and contributions components are proposed in the draft Bill. These exclusions are broadly intended to ensure more equitable outcomes result when calculating the TSB at year end.

Negative earnings Individuals may find themselves in a position where their earnings on a TSB above $3 million are negative. This occurs when the BSE amount, as calculated in step 3 above, is less than nil. In these instances, the individual can ‘carry forward’ the losses to reduce the BSE in a later income year.

Shortcuts to calculating the Division 296 tax

Some common misconceptions are that Division 296 tax will, in effect, either tax all withdrawals at 15 per cent or tax all the earnings of the fund at 30 per cent. Neither of these statements are accurate.

When calculating the amount of Division 296 tax, it is important to correctly follow the steps outlined above in order. The correct amount of Division 296 tax can be accurately worked out only by following all the applicable steps and formulas.

Further, the steps ensure that only the proportion of the earnings on balances above the $3 million threshold is subject to Division 296 tax. There are no shortcuts or quick methods to work out the correct amount of tax payable.

Liability to pay

Akin to the current operation of Division 293 of the ITAA 1997 (where a member’s concessional contributions are subject to an additional 15 per cent tax where their income exceeds $260,000, it is proposed the Division 296 tax liability will be assessed to the superannuant and not the fund, and will be calculated by the Australian Taxation Office (ATO) based on available information.

Individuals subject to Division 296 tax will be able to choose to pay it using funds outside superannuation or request the funds be released from their superannuation account (via a request to the trustee of the fund). The individual will have 60 days to request a release of the amount from their fund (if they choose to) and 84 days to pay the tax.

Impact on franking credits

Proposed Division 296 will impose a new tax on the superannuant, and does not affect or modify the taxable income or income tax position of superannuation funds in any way. This includes the extent to which funds can claim a refund of excess franking credits.

Exceptions to Division 296 tax Several exceptions to Division 296 tax include:

  • individuals who are child recipients of a superannuation income stream at the end of an income year;
  • amounts relating to structured settlements in any income year; and
  • individuals who die before the last day of the income year. Interestingly, this means that an individual who dies on any day from 1 July to 29 June of an income year is not subject to Division 296 tax for that income year, irrespective of their fund balanc.. However, an individual who dies on 30 June of an income year is liable to Division 296 tax for that year if their TSB is above $3 million. Further modifications Some types of superannuation accounts may not readily lend themselves to the steps above. This is primarily due to the nature of, or legislative restrictions around, that type of superannuation account. For these reasons, special rules are proposed to work out the amount of Division 296 tax for:
  • individuals with defined benefit interests (including Commonwealth and Territory judges); and
  • superannuation contributions to constitutionally protected funds.

Valuation of superannuation assets on 30 June 2025

The TSB at the end of the previous income year directly affects the calculation of an individual’s BSE. Accordingly, particular care should be taken to ensure the value of superannuation assets on 30 June 2025 is accurate and not inflated to try to minimise the individual’s TSE for 2025–26.

Issues of concern

The draft Bill raises important issues that are of concern to many practitioners and their clients. Several aspects of the measure could be improved which would ensure the operation of proposed Division 296 is more equitable.

The Tax Institute’s submission to the Government considers in detail these concerns and potential solutions, the most significant of which are summarised below. Taxation of unrealised gains Division 296 proposes to tax the ‘earnings’ on superannuation balances that exceed $3 million, based on the movement in the member’s TSB during an income year.

Accordingly, Division 296 ‘earnings’ will include the unrealised gains of the fund. As a fundamental principle, taxing unrealised gains is inconsistent with the general approach to taxing capital gains in our current system.

Taxing unrealised gains is likely to place superannuation funds under financial stress, or their members in inequitable positions, if they are forced to sell large, illiquid assets to fund a Division 296 liability because the member has insufficient funds outside superannuation to pay the tax.

The measure should be redesigned to exclude the taxation of unrealised gains. However, if the measure proceeds as drafted, the proposed approach of taxing unrealised gains should not serve as a precedent in the design of future tax and superannuation policy.

A further key issue caused by taxing unrealised gains is the misalignment between the taxing point and the available cash flow. The Government should consider ways to minimise the impacts of this mismatch.

This could be achieved by, for example, including an optional deferral mechanism that would allow taxpayers to defer, with interest, the payment of their Division 296 tax liability until the relevant asset is realised and the funds become available.

Threshold not indexed

The $3 million threshold is not currently proposed to be indexed. This means that, over time, more people are likely to be subject to Division 296 tax. It is important that all thresholds across our tax and superannuation systems are indexed or regularly reviewed.

Indexing the $3 million threshold would ensure that the threshold reflects true market conditions and does not inappropriately expose more than 0.5 per cent of all Australians to Division 296 tax (the Government’s announcement on 28 February 2023 indicates that around 80,000 people will be affected by the measure in 2025– 26).

Utilising losses

The draft Bill proposes to allow superannuants with negative earnings to carry forward their losses to be applied against future gains. However, in some circumstances, a carried forward loss will not be permitted to be recognised or may result in inequitable outcomes.

These include, but are not limited to:

  • superannuation funds incurring large and unforeseen losses (for example, losses resulting from a severe recession or market crash) that exceed cumulative future gains; and
  • individuals who die after incurring a loss and are unable to recoup the loss or transfer it to their estate. As an alternative, the draft Bill could be revised to allow members to carry back losses and seek a refund of previously paid amounts of Division 296 tax.

Such an approach would resolve the inequitable scenarios noted above.

Making information available

Currently, it is proposed that the ATO will calculate an individual’s Division 296 liability and notify impacted taxpayers each year. Assuming the ATO will have the relevant information available to undertake these calculations, it is reasonable to ask whether, and if so, how, this information should also be made available to taxpayers and their advisers.

Without this information, a significant cost and time burden will be imposed on taxpayers who want to verify or estimate a Division 296 liability. Making the information available will also be of use to advisers who are engaged to provide taxpayers with accurate and timely investment and planning advice.

It may also be possible to utilise existing digital systems, such as MyGov or online services for tax agents through which the information can be provided.

Final comments

The consultation for the draft Bill and draft EM concluded on 18 October 2023. We await further progress of the measure and hope that the key issues and concerns raised by the professional associations and industry are addressed before the enabling bill is introduced into Parliament.

 

By Robyn Jacobson
April 05 2024
smsfadviser.com
 
 

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Chris Wybenga

B.Bus, CA

Chris is the Managing Director of the Firm who established the practice in August 1994 and has been responsible for its growth and development since that time.

Chris has over 40-years experience in the Chartered Accountancy profession, predominantly spent in small to medium sized firms, advising both small business and individuals in areas such as taxation and accounting as well as business restructuring and superannuation advice.

Chris is active in the development of young accountants both in mentoring cadets at the Firm and lecturing in taxation for the CA Program for the Institute of Chartered Accountants & New Zealand.

  • 1980 – Commenced employment and part time university studies
  • 1985 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1986 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia & New Zealand
  • 1988 – Registered as a Registered Company Auditor
  • 1994 – Established Wybenga & Partners (formerly known as Farrar & Wybenga)

Dianne Bechara

B.Bus, CA

Dianne is responsible for the day-to-day operations and administration of the practice.

Dianne has over 30-years Chartered Accountancy experience and has significant expertise in providing advice and solutions to high-net-worth individuals and their associated entities. Dianne also has considerable knowledge in the areas of taxation, business services, superannuation, and compliance.

Dianne is active in promoting gender equality in the industry through various programs and mentoring opportunities. Dianne is also committed to the development of young accountants and donates considerable time to sharing her expertise.

  • 1992 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1993 – Commenced employment in acounting profession
  • 1996 – Commenced career with Wybenga & Partners
  • 1997 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia & New Zealand
  • 2002 – Appointed as Director of Wybenga & Partners

Roger Potter

B.Bus, CA

Roger is responsible for the HR aspect of the Firm, cultivating the culture, and maintaining the highly social environment we pride ourselves on.

Roger has over 35-years in the Chartered Accountancy profession and significant expertise in providing advice and solutions to small businesses and high-net-worth individuals. He also has extensive experience in the areas of Self-Managed Superannuation Funds and retirement strategies.

Roger is active in the development of young accountants both in mentoring cadets at the firm and lecturing in taxation for the CA Program for the Institute of Chartered Accountants & New Zealand.

  • 1985 – Commenced employment and part time university studies
  • 1990 – Graduated Bachelor of Business from University of Technology, Sydney
  • 1992 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia & New Zealand
  • 1998 – Commenced career with Wybenga & Partners
  • 2002 – Appointed as Director of Wybenga & Partners

Tess Uncle

B.Sc, M.Com, CA

Tess has over 22-years experience in Chartered Firms and in this time has had a broad range of experience in superannuation, taxation, and business services. In particular, Tess has had significant experience in MYOB and assisting clients in day-to-day bookkeeping activities and periodic reporting.

Tess is responsible for the Firm’s training and development needs.

Tess is active in promoting gender equality in the industry through various programs and mentoring opportunities. Tess is also committed to the development of young accountants and donates considerable time to sharing her expertise.

  • 2001 – Commenced employment with Wybenga & Partners and part-time accountancy studies
  • 2004 – Graduated Masters of Commerce from the University of New South Wales
  • 2005 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia & New Zealand
  • 2007 – Promoted to Manager at Wybenga & Partners
  • 2012 – Appointed as Associate Director
  • 2016 – Appointed as Director of Wybenga & Partners

Schedule a Meeting with Tess


Adam Roberts

B.Bus, B.Sc, CA

Adam has over 18-years experience in Chartered Firms and in this time has had a broad range of experience in superannuation, taxation, and business services. In particular, Adam has had significant experience in MYOB and assisting clients with periodic management reporting.

Adam is responsible for the implementation of technology in the Firm and sourcing new areas of innovation and efficiency.

Adam is active in the development of young accountants and donates considerable time to sharing his expertise.

  • 2005 – Commenced employment with Wybenga & Partners and part-time Accountancy Studies
  • 2005 – Graduated Bachelor of Science from the University of Western Sydney
  • 2007 – Graduated Bachelor of Business from the University of Western Sydney
  • 2010 – Admitted as an Associate Member of the Institute of Chartered Accountants Australia & New Zealand
  • 2010 – Promoted to Manager at Wybenga & Partners
  • 2012 – Appointed as Associate Director
  • 2016 – Appointed as Director of Wybenga & Partners

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Accounting Cadetships

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    Each year we offer several school leavers or undergraduates the opportunity of beginning their career with us via an Accounting Cadetship. If you are interested in pursuing a career in accounting please read the information below. Our accounting cadetships could be perfect for you!

    What is an Accounting Cadetship?

    An Accounting Cadetship enables you to commence your career whilst attaining the necessary university qualifications by studying part-time.

    How Does It Work?

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    What Are the Benefits of Accounting Cadetships with Wybenga and Partners?

    Our cadets benefit from the following:

    • Career path – on completion of their degree our cadets have significant practical experience which will assist them in advancing their careers.
    • Work helps your studies – by working full-time our cadets are able to apply their practical knowledge in the university subjects.
    • Camaraderie with other cadets – the Firm has a number of cadets at various stages of their career.
    • Mentoring – cadets are paired with a senior staff member who oversees their progress and training both at work and with their studies.
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    • Culture – the Firm promotes a friendly social culture with a number of functions throughout the year.
    • Modern environment – including ‘socialising’ areas such as pool table and break out area.
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    What Happens When I Complete My Degree?

    The completion of your degree is the first step of what we hope to be a long and successful career with us. The next step is the commencement of your CA Program with the Institute of Chartered Accountants Australia and New Zealand whilst at the same time continuing your employment with us.

    A number of cadets have progressed to Seniors, Managers, and Directors within the firm.

    Who Should Apply?

    Current Year 12 students or first/second year University Students who:

    • want to commence their career in accountancy;
    • are due to commence or are currently completing a part-time business or commerce degree at university with an accounting major;
    • want to gain valuable hands-on experience while completing their qualifications;
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    • are motivated and mature minded.

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    For further information about our Cadetship program, please send your enquiry to .

    Skilled Accountants

    Wybenga & Partners offers a stimulating work environment giving you the opportunity to develop your future success.

    Wybenga & Partners recognises and promotes that there is more to life than work. We know that your needs change and we provide support to balance your work, academic and lifestyle pursuits.

    We welcome enquires from trained accountants regarding a career with Wybenga & Partners. Please email us your details to .