Issue
Can the taxpayer's 'legal personal representative' roll over the taxpayer's benefit to an approved deposit fund (ADF) and is such a rollover an eligible termination payment (ETP)?
Decision
Yes. The taxpayer's legal personal representative is able to make the election under section 27D of the Income Tax Assessment Act 1936 (ITAA 1936) on behalf of the taxpayer and the payment to the ADF would be an ETP under paragraph 27A(1)(b) of the ITAA 1936.
Reasons for Decision
When a member of a superannuation fund is under a legal disability, the member's 'legal personal representative' (as defined in section 10 of the Superannuation Industry (Supervision) Act 1993 has the legal authority to act on the member's behalf.
Assuming the legal personal representative wishes to roll over the taxpayer's benefits to an ADF, it is necessary, first, for the taxpayer to make an election under section 27D of the ITAA 1936. The section allows a taxpayer to elect to treat a qualifying termination payment as a rollover. Paragraphs 27A(12)(a), (b), (c) and (d) of the ITAA 1936 determine what constitutes a 'qualifying eligible termination payment'. The payment rolled over to the ADF will be an ETP under paragraph 27A(1)(c) of the ITAA 1936.