Editor: As 1 July 2017 approaches, many practitioners will be faced with the challenge of advising clients who have pension phase interests in superannuation in excess of $1.6 million to partially commute existing superannuation income stream interests (i.ie., pensions) by 30 June 2017, to get their clients under the $1.6 million transfer balance cap.
As acknowledged by the ATO in PCG 2017/5, a fund member may not by in a position on 30 June 2017 to now precisely the value of the superannuation interests that support their superannuation income streams.
One strategy to address this is for the member to make a request, which is subsequently accepted by the trustee of the SMSF, to commute their superannuation income stream(s) by the amount that the value of the superannuation interests that support their superannuation income streams exceeds $1.6 million.
A request to commute is valid if it is consistent with the governing rules of the superannuation fund and the agreement between the member and the trustee under which the superannuation income stream is provided.
Whether and at what time a valid communication takes effect is a question of fact to be determined from the circumstances. It must be clear that some or all the member’s right, or dependent beneficiary’s right, to receive future superannuation income stream benefits has been exchanged for a right to receive a lump sum.
The ATO’s compliance approach
The commissioner will not apply compliance resources to review the commutation of a superannuation income stream a member has in an SMSF that is made before 1 July 2017 where the request and acceptable to commute:
- Are both made in writing (the agreement by the trustee may be documented as a trustee resolution);
- Are made before 1 July 2017;
- Specifies a methodology that allows the precise quantum of the amount commuted to be calculated (such amount may be ascertained at a later point in time);
- Specifies the superannuation income stream which will be subject to the commutation. Where the request may cover more than one superannuation income streams that may be covered and the order of priority in which the commutations will occur; and
- Do not conflict with a similar agreement to commute that the member has agreed to with a trustee of a different superannuation fund. Entering into an agreement with the trustee of one superannuation fund to which the Guideline applies in conjunction with the commutation of a specific amount from another superannuation fund does not in itself cause a conflict.
The amount of the commutation is required to be worked out by the trustee of the SMSF, and reflected in the SMSF’s financial accounts for the year ended 30 June 2017, no later than the due date of the SMSF’s annual return for the year ended 30 June 2017.
The agreement to commute cannot be subsequently revoked after the date of the agreement. If the agreement to commute or the governing rules of the superannuation fund allowed a discretion for either the member or the trustee of the SMSF to revoke the agreement, it would be questionable whether a valid commutation had in fact been effected before 1 July 2017.