Labor’s superannuation related reform proposals

We have received a large number of calls and emails from clients concerned about the proposed legislation to deny refunds for excess franking credits from 1 July 2019 should Labor win the upcoming election.  This proposal would largely impact individuals and self managed superannuation funds (‘SMSF’).

There is much being discussed on the impact and significant changes depending on the outcome of the election. Labor have a number of super and related tax proposals as outlined below. Of course, until a proposal or change is finally introduced as law, it cannot be relied on as law.

Franking credits

Labor proposes to deny refunds for excess franking credits from 1 July 2019. Cash refunds would not be available if the franking credits exceed the taxpayers tax liability.

The imputation credit system under current laws allows a taxpayer to be entitled to a credit for the tax paid on dividends paid by companies to shareholders.  This means a taxpayer who receives the dividends can either use those credits to reduce their tax payable or, if there is no tax payable, obtain a cash refund.  This system effectively avoids the double taxation of earnings distributed by the companies (tax at the company level and again on the individual).

This proposal largely affects members on retirement pensions (self-funded retirees) when the SMSF is 100% tax free or individuals who fall below the tax free threshold. Currently the refund of franking credits provides a cash ‘top-up’ to the pension account for a SMSF member by way of an ATO refund payment.

Many SMSF funds that are fully in pension mode and have investments in shares that pay fully franked dividends will be the losers if this is enacted.  For example a mum and dad super fund with a combined balance of $900k (so they don’t qualify for the aged pension) currently receives franking credit refunds of $16k which helps top up their pension drawings.  The refund will stop if the legislation is introduced.

There are some exemptions to the proposed changes, under Labor’s Pensioner Guarantee:

• Every recipient of an Australian Government pension or allowance with individual shareholdings will still be able to benefit from cash refunds. This includes individuals receiving the Age Pension, Disability Support Pension, Carer Payment, Parenting Payment, Newstart and Sickness Allowance.
• SMSFs with at least one pensioner or allowance recipient before 28 March 2018 will be exempt from the changes. For example, if one member was receiving a part Centrelink age pension of $100 before 28 March 2018, the SMSF will be exempt under the proposal.

The Standing Committee on Economics has advised against Labor’s policy to remove refundable franking credits after determining that it would impact individuals on modest incomes and discriminate against SMSFs in favour of APRA-regulated super funds. Large industry and retail superannuation funds will typically be able to offset any franking credits received against the tax payable for their members with accounts held in accumulation phase, these funds will generally not be adversely affected by this proposal.

The committee released the report last month which stated in the report “any policy that could reduce Australian retirees’ income by up to a third should only be considered as part of an equitable package for wholesale tax reform”.

In its conclusion in the report, the committee said that it determined that the Australian Labor Party’s (ALP) policy will hit people of modest incomes who have already retired, and who are unlikely to be able to return to the workforce to make up for the income they will lose.

“In doing so, the ALP’s policy will force many people, who have saved throughout their lives to be independent in retirement, onto the age pension. This defeats the stated purpose of the policy, which is to raise revenue,” the report stated.

“The ALP has said that its policy to scrap refundable franking credits is designed to tax the wealthy. This is an unfair and untrue characterisation of the 900,000 Australians who will be affected by the ALP’s policy, and the distributional data relied upon to assess the distribution of refundable franking credits does not factor in the introduction of the transfer balance cap.”

The report also referred to research undertaken by the Alliance for a Fairer Retirement System that claimed that, in 2014–15, over half of those receiving cash refunds for their franking credits had incomes below the $18,201 tax-free threshold of the time, and that 96 per cent had taxable incomes of less than $87,000.

“These people are hardly wealthy, yet they stand to lose up to 30 per cent of their income under the ALP’s plan,” the report stated.

“The policy may also reduce the value of some Australian shares and reduce investment in Australian companies,” the report said.

Many SMSF’s with members who have pension entitlements over the $1.6m cap now have accumulation entitlement/s within their SMSF.  The SMSF is paying tax on the income associated with the accumulation entitlements and as such the franking credits can still be used to reduce the tax for these funds.  If the proposal was aimed at the high net worth pension recipients it certainly doesn’t achieve that.

Some SMSF members may consider whether having a SMSF in retirement phase is worthwhile if the fund is not eligible for the refund of the excess franking credits. If the pension drawings are not required, the SMSF can accumulate assets for the longer-term in the concessionally taxed superannuation environment and the franking credits are not ‘lost’.

We understand that there are many companies carefully examining what their optimal dividend distributions will be prior to 30 June 2019 given this proposal. Naturally, if a refund is available to individuals or SMSFs prior to 30 June 2019 (but not afterwards), then a greater distribution prior to this proposal being introduced may be more attractive.

Superannuation guarantee

Labor propose to increase the current superannuation guarantee charge rate from 9.5 per cent to 12 per cent as soon as practicable instead of the current gradual increase which is already law to 12 per cent from 1 July 2025. Should this be achieved, Labor then proposes to achieve its original objective of increasing the minimum rate to 15 per cent.

Non-concessional contributions cap

Labor will lower the annual non-concessional contributions (NCC) cap from $100,000 to $75,000.

This also impacts on the bring-forward cap which will reduce from $300,000 to $225,000 (i.e., 3 x $75,000). Non-concessional contributions are not available to those with a Total Superannuation Balance of $1.6m and above.

Division 293 threshold

Labor is proposing to lower the threshold at which high income earners pay additional contributions tax paying 30% instead of 15% on their superannuation contributions.  Labor will drop the threshold from $250,000 to $200,000.

Tax deduction for personal superannuation contributions

Labor propose to reintroduce the 10 per cent rule to restrict personal contributions. Under current law, individuals regardless of their employment circumstances, can make concessional contributions (CCs) up to the CC cap following the removal of the 10 per cent test on 30 June 2017.

The 10 per cent test prior to 30 June 2017 precluded individuals from claiming personal superannuation contributions where they earned more than 10 per cent of their overall earnings was from employee type activities.

For example, under current law, if an employer makes superannuation contributions of $10,000 on behalf of an employee, the employee may make an additional $15,000 of personal CCs to superannuation, and claim a deduction in their personal tax return for the $15,000 despite having 100 per cent of their earnings from being an employee (subject to having sufficient taxable income to offset the deduction).

Ban new LRBAs

Labor is committed to banning SMSFs entering into new limited recourse borrowing arrangements (‘LRBA’). As part of Labor’s housing affordability policy, in April 2017, it announced that it would ‘restore the general ban on direct borrowing by superannuation funds, as recommended by the 2014 Financial Systems Inquiry’.

Should you have any concerns or queries regarding the above information please do not hesitate to contact our Superannuation Manager Helen Cooper on (08) 9316 7000.

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The Personal Property Securities Register (PPSR) turns 7!

As of the 30^th of January 2019, the Personal Property Securities Register (PPSR) turned 7 years old. Whilst this may seem like an insignificant occasion, the movement of the PPSR into it’s 7^th year could potentially have implications for a large number of businesses.

7 years marks the maximum duration for a security interest which required registration by a serial number, or for other interests, a 7 year registration period represented the cheapest registration option (in terms of fees charged by the PPSR). So common is the 7 year duration that up to 115,000 registrations were automatically discharged on the day following the PPSR’s anniversary, 31 January 2019, that is 115,000 separate assets which small business and the people behind them lost protection for, and which could, in the wrong circumstances negate their ownership interests.

But what exactly is the PPSR again?

The PPSR is a national online register that stores the security interests of parties over assets. The purpose of the PPSR was to take lead from Canada and New Zealand to improve the ability of individuals and small to medium businesses to more effectively use their property to secure lending. To provide protection for consumers or businesses making large purchases, that are not real estate, e.g. motor vehicles, boats, trading stock, second hand goods and financial assets (shares).  Or when selling the above goods on credit terms or when leasing, renting and hiring out such goods.

Who uses the PPSR?

Most commonly the register is used by banks and other institutions which provide credit, as through this register they are able to secure their interests in the property which they facilitate the purchase of should their customer default.

Another common example is second hand car dealers. They will frequently review the register before purchasing a vehicle from a member of the public or from a fleet arrangement to ensure that no other parties (besides their seller) has a claim to the vehicle.

Doesn’t a clause in my contract protect me, and what is “Perfection?”

A retention of title clause is common in contracts where you are providing a good, the purpose of these clauses is to ensure that the title remains with you until the goods are paid for in full. However, these clauses no longer protect you on their own. With the PPSR in place, if another party has registered an interest in the same good (e.g. taken it as collateral for another loan) they will be ahead of you in the queue should your mutual customer default or go broke.

Perfection is a technical concept particular to the PPSR. Perfection over the security interest in an asset provides your interest in the asset with priority over other claimants. To have a perfected interest, it must have an attached security interest, be enforceable against third parties, and is either PPS registered or the collateral is in the possession or control of the secured party.

How can I check if my assets are still protected?

It is quick and easy to access the PPSR and have a “Registrations due to expire” report generated. Simply follow the link here, and follow the instructions provided. This process will require you to sign into the account you used to register your interest or to create a new account (this is free). Also note that all reports are generated as Excel files (.CSV and .XML) so for best compatibility download the report onto a laptop or desktop computer.

What should I do next?

Once you have a copy of the above report, review your interests and their expiry dates. It is key to renew your interests before they expire, as if they expire you must register a new interest, this will compromise your interest’s priority over the asset, putting it behind other parties. Further, if you have any other assets which you think may be applicable go about registering them onto the PPSR at the same time.

If you have any further questions or concerns regarding the PPSR please contact the team at GeersSullivan on (08) 9316 7000.

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