Timing everything with a DIY pension

Super is tax-free once members turn 60 and retire, but it is the potential for large tax-free capital gains that has attracted Treasury's attention, especially now that self-managed super funds (SMSFs) are allowed to invest in property.

In 2010, Treasury famously referred to SMSFs as the new tax-minimisation vehicle of choice.

While super funds pay capital gains tax at concessional rates on the disposal of assets during the accumulation phase, all income is tax-free in the pension phase, including income from the sale of investments.

The technical director of the SMSF Professionals' Association of Australia, Peter Burgess, says it has been incorrectly reported that there is an anomaly in the system that allows only SMSFs to shift investments from the accumulation phase to pension phase without paying capital gains tax.

"This is not the case," he says. "It applies to all super funds but a lot of large funds use [the shift to pension phase] as a capital gains tax event. The law does not require them to do that but for administration purposes they may choose to do so."

Beyond the grave

Burgess argues that any move to treat the transfer of assets into a super pension as a disposal for tax purposes would not help the budget position or bring in additional revenue.

"A lot of funds are sitting on large unrealised capital losses as a result of the global financial crisis," he says. "Funds could use this to offset capital gains so revenue would be minimal. If they keep changing the rules, it dents confidence in super and people may turn to holding assets outside super, which is not as heavily regulated."

While capital gains are tax-free while retirees draw a pension, this preferential treatment does not necessarily extend beyond the grave.

In a controversial draft ruling last year, the Australian Taxation Office ruled that when members die, their fund ceases to be a pension and all underlying assets must be sold to fund their death benefit. This means the fund loses its ability to sell investments on a tax-free basis.

Instead, capital gains will be taxed at a rate of 15 per cent if held for less than 12 months and 10 per cent if held for longer.

This can result in a large unexpected tax bill for the member's beneficiaries where assets have been held for a long time.

The exception to this rule is where the deceased has what is called a reversionary pension. A pension can only be reverted to a spouse and this allows them to continue receiving pension income with the capital gains tax exemption intact.

Confusion about capital gains tax rules and how they are applied when someone dies is widespread. A senior adviser for Donnelly Wealth, Russell Lees, says clients often want to know if the estate will be hit with a capital gains tax bill when assets are sold and, if so, who foots the bill.

When people die, their assets are distributed according to their will. If shares, property or other investments held outside super are sold and the proceeds distributed in cash to their beneficiaries, then normal capital gains tax rules apply. Realised capital gains must be included in the deceased's final tax return and tax paid at their marginal rate.

The family home remains tax-free provided it is sold within two years.

However, Lees says assets such as shares or property can be transferred into the name of a beneficiary with the original cost base intact, and capital gains tax deferred until they sell the assets.

The one exception is assets purchased before September 1985, whereby the cost base becomes the market value at the time of death.

But things become more complicated if the assets are held inside a super fund, especially when the fund is already in pension phase.

Reversionary pension

"It pays to have a reversionary pension," Lees says. Failing that, he says, people should consider selling down assets with large unrealised capital gains while they are alive and their fund is still tax-free.

Not doing so can produce a double blow for a surviving spouses who receive a lump-sum death benefit and want to put it back into a tax-free super pension.

Not only will they be liable for capital gains tax, but if the lump-sum benefit exceeds their annual contribution cap they may have to drip-feed the cash back into super over several years.

Lees says the situation is even worse when a super lump sum is paid to an adult child who must also pay death benefits tax of 15 per cent on the taxable component of the account balance. (Death benefits paid to a surviving spouse or financial dependant are tax-free.)

Burgess says Treasury has been listening to the industry's concerns about the ATO draft ruling affecting the treatment of capital gains in pension accounts on the death of a member.

"One option Treasury is looking at is considering a fund as a pension until six months after death," he says. This would give funds time to sell assets supporting the pension death benefits and pay the proceeds out to beneficiaries while they are not subject to capital gains tax.

The final ATO ruling is overdue, which makes Burgess think it's likely Treasury is planning to adopt the six-month rule.

How capital gains tax works

Capital gains taxwas introduced by the Hawke-Keating government on September 20, 1985, and applies to all assets acquired on or after that date.

Notable exceptions are the family home and assets held in a super pension.

Capital gains tax is paid at your marginal rate on any net profits you make from the sale of assets, or at the concessional rate of 15 per cent for investments held

inside super.

Net profits, or capital gains, must be included in your income tax return for the year in which they were made. Your net capital gain is total capital gains minus any capital losses, including unused net capital losses brought forward from previous years. If you hold assets in your name for at least 12 months before selling, then any capital gain is discounted 50 per cent. In otherwords, you only pay tax on half your profit. This means that someone on the top marginal tax rate of 46.5 per cent

pays an effective 23.25 per cent tax on capital gains. If assets are held inside super

for more than 12 months, the discount is 33.33 per cent before tax is payable at the

superannuation rate of 15 per cent. This results in an effective tax rate of 10 per cent (66.66 per cent of 15 per cent). Once the fund is in pension phase, all capital gains are tax-free.