The ATO’s draft ruling was issued in July 2011. Some of the positions the commissioner took in that ruling were controversial and “not something that the industry necessarily agreed with”, managing director of the SMSF Academy Aaron Dunn told SMSF Adviser.
One of the changes to the draft relates to the point at which a pension is considered to have ceased when a full commutation request is received, AMP SMSF’s head of policy and technical, Peter Burgess, told SMSF Adviser.
“The draft said it ceases when the trustees receive a full commutation request but the final ruling says it ceases when the commutation request takes effect,” Mr Burgess said.
“Unlike the draft, the final ruling makes allowance for clauses in the trust deed which may state when the commutation has been accepted by the trustee and therefore when the request takes effect,” he added.
“It appears to allow a correctly worded trust deed clause to give the trustee time to sell the pension assets without paying CGT as long as it is done before the commutation request takes effect.”
Mr Dunn added that the finalisation of this ruling is generally positive for the superannuation sector, as it provides clear certainty and the industry can rely on its legally binding status.
“Over time we’ve seen the fairly robust discussion in the industry with the regulator and government about removing some of the issues [found] in the original draft form, the government in that consultation process listened to some of those,” Mr Dunn added.
For a full analysis of this ruling, see today’s column from Aaron Dunn.