Issue
How is the superannuation pension rebate calculated?
Decision
The superannuation pension rebate is ascertained in accordance with the formula found in subsection 159SM(1) of the Income Tax Assessment Act 1936 (ITAA 1936).
Facts
The taxpayer receives a pension from a complying superannuation fund.
The superannuation fund has never been a 'constitutionally protected fund'.
The superannuation fund is a taxed superannuation fund.
The taxpayer is aged 55 years or older.
Reasons for Decision
Subsection 159SM(1) of the ITAA 1936 details the entitlement to a superannuation pension rebate. It states: Subject to subsection (2), for each rebatable 27H amount included in a taxpayer's assessable income of a year of income in respect of a rebatable superannuation pension, the taxpayer is entitled to a rebate of tax in the taxpayer's assessment for the year of income worked out using the following formula: Reduced 27H amount x Rebatable proportion of pension x 15% where: "Reduced 27H amount" is the rebatable 27H amount, reduced by the total of the amounts specified in notices under section 159SS given in relation to payments of the pension during the year of income (other than payments made before the taxpayer's 55th birthday).
Subsection 159SM(2) states: The taxpayer is not entitled to a rebate for a rebatable 27H amount included in the taxpayer's assessable income of a year of income in respect of a rebatable superannuation pension if the applicable fund in relation to the superannuation pension is not a taxed superannuation fund in relation to the year of income of the fund that corresponds with the year of income of the taxpayer.
The payments must be made from a fund that is a 'taxed' superannuation fund in relation to the year of income of the fund that corresponds with the relevant year of income of the taxpayer (subsections 159SJ(1) and 159SM(2) of the ITAA 1936).
A superannuation fund that is an eligible superannuation fund will only qualify as a taxed superannuation fund if it is a resident fund in relation to the relevant year of income (subsection 27A(1) of the ITAA 1936). A fund that is a constitutionally protected fund, within the meaning of Part IX of the ITAA 1936, in the relevant year of income, is not a taxed superannuation fund.
An eligible superannuation fund in relation to a year of income means a fund that is a complying fund, or a non-complying fund, for that year of income (subsection 267(1) of the ITAA 1936).
When payments are made from a complying superannuation fund that is not a constitutionally protected fund they are made from a 'taxed' fund. Subsection 159SM(3) of the ITAA 1936 states that if the fund was a constitutionally protected fund on the first day of the period to which the pension relates then the taxpayer is not entitled to any rebate.
Where the payments are made from a complying fund, that is not and has never been a constitutionally protected fund, the formula in subsection 159SM(1) of the ITAA 1936 can be applied to calculate the amount of the taxpayer's rebate.