The bill that will allow taxpayers to refund their excess non-concessional contributions remains in the lower house, and it will not pass until at least the Autumn sitting of parliament, AMP SMSF’s head of policy, technical, educational services Peter Burgess told SMSF Adviser.
The industry was hopeful this legislation would pass before the end of this calendar year, Mr Burgess said, with the delayed start date raising several points to consider for SMSF practitioners and their trustee clients.
“One of the implications of that is we may see a delay in the issue of some of these excess determinations, because once this law is passed the commissioner will be able to issue people that exceed their non-concessional cap with a release authority, but they can’t do that until obviously the law is passed,” Mr Burgess said.
The delayed introduction could also cause the associated earnings figure to be larger than would’ve been the case if the legislation was passed this year.
“That’s calculated based on the number of days that the excess amount is in the superannuation environment. One theory is that this delay will mean that the determinations will be delayed and as a result of that the associated earnings figure will perhaps be higher than what it would’ve otherwise been,” Mr Burgess said.
In light of the delayed passage of this legislation, SMSF practitioners should ensure they are not releasing funds now, Mr Burgess noted.
“As the law currently stands, you’re not able to release an excess non-concessional [amount] unless you’ve satisfied conditions of release. So [clients] need to wait for the law to change before they can get these amounts released,” he said.
Mr Burgess also said some changes that were made to the legislation when it was introduced to parliament are “good news” for the SMSF sector.
“When you’re refunding the associated earnings, under the previous draft, 100 per cent of those earnings would be added to your assessable income. Under the … legislation that’s before parliament, only 85 per cent of those associated earnings will actually be added to your assessable income,” Mr Burgess said.
“It’s to take away the double taxation effect which was in the draft.”
In addition, there were some minor changes made to reporting details in the revised version of the bill. Under the draft, where a fund had released an excess amount to the member, they had seven days to report it to the ATO.
Under the revised legislation, this is now 21 days, Mr Burgess said.