Super Reforms – Non Compliance

Super Reforms – Non Compliance

On 15 January 2018, Craig commences a $3 million superannuation income stream in his SMSF, Cormac Super Fund. Craig’s transfer balance account is $3 million and he has a $1.4 million excess transfer balance on this date.

On 20 January, the Commissioner issues a determination to Craig stating his crystallised reduction amount as $1,401,765 ($1.4 million excess plus 5 days of notional earnings). Craig does not have any other superannuation income streams and therefore Craig does not make an election.

On 13 April 2018, the Commissioner issues a commutation authority to Cormac Super Fund requiring the trustee to partially commute Craig’s $3 million superannuation income stream by $1,401,765.

Craig does not think he should have to commute his superannuation income stream and therefore, as trustee of Cormac Super Fund, chooses not to comply with the commutation authority.

On 14 May 2018, as Cormac Super Fund has failed to comply with the commutation authority, Craig’s $3 million superannuation income stream ceases to be in the retirement phase with effect from 1 July 2017. Consequently, Cormac Super Fund is not eligible to claim any earnings tax exemption in respect of this superannuation income stream for the 2017-18 income year or a later income year.

When Craig’s superannuation income stream ceased to be in the retirement phase, a debit arises in Craig’s transfer balance cap for the value of the superannuation interest that supported the superannuation income stream. In this case, the debit is $3 million. Therefore, Craig’s transfer balance account on 14 May 2018 is $1,765 ($3,001,765 less $3,000,000). Craig is entitled to commute his superannuation income stream and start a new superannuation income stream in the retirement phase with up to $1,598,235.

Essentially, failing to comply with a direction from the Commissioner causes the pension to cease entirely from the beginning of the relevant year just as it would if the minimum pension payment had not been met.