How Australian Superannuation Funds are Taxed in the U.S.

There are currently more than 100,000 Australian-born people living in the United States. Many of these individuals have an Australian Superannuation account. A superannuation is an Australian pension program created by a company to benefit its employees. Funds deposited in a superannuation account will grow through appreciation and contributions until retirement or withdrawal. As with many foreign pension plans, the U.S. federal taxation of superannuation accounts is a gray area. The most common type of superannuation is the Self-Managed Superannuation Funds. This article will focus on Self-Managed Superannuation Funds. This is because Self-Managed Superannuation Funds are the most common type of superannuation.

Many tax professionals consider a superannuation fund to be a foreign grantor trust for U.S. tax purposes. If a superannuation fund can be classified as a grantor trust, all contributions and all growth income is taxed in the U.S. Many issues arise if a superannuation fund is treated as a foreign grantor trust. Other tax professionals take the position that a superannuation fund should be treated as an exempt foreign social security plan for U.S. tax purposes.

The Department of Treasury and the Internal Revenue Service or (“IRS”) has not officially classified the Australian superannuation for U.S. tax purposes. This article attempts to discuss how the Australian superannuation may potentially be taxed under U.S. federal law and under international treaty law. In order to better understand how a superannuation fund is taxed, it is important to discuss the domestic and international treaty law that govern foreign retirement accounts such as the Australian superannuation Fund.

The Australian Social Security System and Superannuation Funds

The U.S. Social Security Administration’s 2010 publication titled “Social Security Programs Throughout the World” analyzes Australia’s overall comprehensive social security system. The publication identifies the 1908 Invalid and Old-Age Pensions and the 1942 Widows’ Pensions Act as the first set of laws that formed Australia’s first social security system. The current regulatory framework of Australia’s overall comprehensive social security system is the 1991 Social Security Act, the 1992 Superannuation Guarantee Administration Act, and the 1999 New Tax System Family Assistance Act 1999. The 1991 Social Security Act provides the traditional, minimal, and basic means-tested social assistance, but it also introduced the concept of “superannuation guarantees” to replace the general social security contributions that started with the 1945 Social Services Contribution Act. See Australia Social Security Act, Section 9(1).

The 1999 Superannuation Guarantee Administration Act mandated compulsory employer contributions to state-mandated occupational pensions that are privately managed. Under current Australian law, employers must contribute 10% of an employer’s salary to state-mandated occupational pension funds called “superannuation funds.” These state-mandated employer contributions are referred to as the “superannuation guarantee.” Additional employee contributions to superannuation funds are optional, but, when contributed, they are treated no different; fully preserved, restricted, and inaccessible until retirement. Thus, regardless of whether the contribution is a “superannuation guarantee” or a “concessional contribution,” they both form a part of the same fully preserved and restricted fund. There are no longer any social security contributions to publicly managed social security accounts in Australia due to Amending Acts from 1945 to 1969 and the final 2014 Repeal Act; they have been entirely replaced by the superannuation guarantee. This represents the privatization of Australia’s traditionally government-run social security pensions.

There are various types of superannuation schemes identified in the 1991 Social Security Act, including, but not limited to, public sector funds established for federal and state government employees, corporate funds established by medium to large private sector companies for their employees, industry or multiemployer funds, retail fund public offer funds, and self-managed superannuation funds. Australia’s current social security system has two components: a means-tested Age Pension funded through general revenue; and the superannuation guarantee funded through compulsory employer contributions to state-mandated superannuation funds, which are similar to compulsory contributions under U.S. Federal Insurance Contributions Act.

In Australia, the Superannuation Guarantee Act of 1992 was adopted in recognition of the fact that Australia, along with many other industrialized nations, had and would continue to experience significant increases to life expectancy due to advances in the field of medicine, which would slowly make their social security system insolvent over time. The proposed solution was the privatization of their social security system that included a very basic need-based age pension system that served as a safety net, private savings generated by state-mandated employer contributions to a superannuation fund that served as the centerpiece of the privatization proposed, and the option for voluntary quasi-after-tax contributions to a superannuation fund. Australian superannuation funds can be characterized as state-mandated occupational pensions with the primary purpose of providing for benefits at retirement.

There are typically six different types of Australian Superannuation Funds which can be identified as follows: 1) Retail Funds: these are profit funds offered to individuals and companies by large financial institutions; 2) Industry Funds: these are not-for-profit funds are are typically open to the general public; 3) Public Sector Funds: these are typically not profit funds that are offered to government workers; 4) Corporate Funds: these are typically established by an employer for their employees; 5) Self-Managed Superannuation Funds: these are typically funds established by wealthy households; 6) Small APRA Funds: these are typically established for a maximum of four beneficiaries.

The U.S. Taxation of an Australian Superannuation Account

Under current U.S. tax law, a distribution from an Australian superannuation fund to a U.S. beneficiary may either be taxed either a distribution from a grantor trust or as a distribution from a foreign social security plan.

If a superannuation fund is more than 50% funded by an employer and the plan does not favor highly compensated employees, the superannuation fund may be considered a nonexempt employees’ trust and governed under Internal Revenue Code Section 402(b). In such a case, employer contributions are generally taxable income to the employee, but growth inside the plan is tax-deferred until distribution. Upon distribution, the fund functions similar to an annuity under Section 72 of the Internal Revenue Code and the U.S. beneficial would be permitted to recover his or her basis or contributions to the fund as nontaxable return of capital. As a result, the amount ultimately excluded from taxable income for U.S. tax purposes will be equal to the U.S. taxpayer’s investment in the contract. The taxpayer’s investment in the contract will generally include contributions and earnings that were previously included in the taxpayer’s U.S. taxable income, as well as amounts previously included in the taxpayer’s non-U.S. taxable income during a period when the taxpayer was a nonresident alien of the U.S.

The second method that a superannuation fund may be taxed is under the foreign grantor trust rules. The grantor trust rules are included in the Internal Revenue Code to attribute income tax liabilities associated with income received by a trust to the person that is considered to control a trust. The grantor trust rules attribute income tax to trust income regardless if the income has been distributed. Unless a specific provision of the Internal Revenue Code excludes the application of the grantor trust rules, the annual earnings accumulated in Australian superannuation funds will be attributed to the U.S. owners of such plans and are taxable in the U.S. under Section 671 through 679 of the Internal Revenue Code. Under the grantor trust rules, if a superannuation fund contains mutual funds, the superannuation fund may be subject to the harsh passive foreign investment company (“PFIC”) tax regime.

Finally, some tax professionals have taken the position that superannuation funds should be treated as social security. Superannuation funds are unique in that they are mandated by the Australian government with the primary purpose of providing for benefits at retirement and as a result, arguably, superannuation funds should be recognized as social security for U.S. tax purposes. A state-mandated “occupational pension scheme” such as a superannuation fund seems to fit the precise definition of social security. For reasons discussed below, if a superannuation distribution can be treated as social security.

Whether or not a superannuation fund can be classified as grantor trust or social security for U.S. tax purposes depends largely on one’s interpretation of the U.S.-Australia Totalization Agreement. A totalization agreement is an international tax treaty that seeks to eliminate dual taxation with regards to social security taxes. The United States signed the Totalization Agreement with Australia that went into effect on October 1, 2002. The Totalization Agreement specifically recognizes “superannuation guarantee” contributions as being social security contributions since the funds are part of Australia’s larger, comprehensive national social security system. For Australia, the Totalization Agreement covers Superannuation Guarantee contributions that employees must make to retirement plans for their employees.

As discussed above, some tax professionals take the position that the U.S. has acknowledged that a superannuation distribution should be treated as social security. This is because the totalization agreement specifically states that a superannuation contribution is the same or similar to social security contributions. Other tax professionals believe that the goal of the U.S.-Australian Totalization Agreement was to avoid having a taxpayer income withheld in each jurisdiction for employment.Thus, the U.S.-Australian Totalization Agreement should not be interpreted to mean an Australian Superannuation Fund falls under the definition of social security.

Most income tax treaties have special rules for social security payments. Under Article 18, Paragraph 2, of the U.S.- Australian income tax treaty, “social security payments and other public pensions paid by one of the Contracting States to an individual who is a resident of the other Contracting State or a citizen of the United States shall be taxable only in the first mentioned State.” In other words, the country of source has exclusive taxing rights to social security income. Under Article 18, Paragraph 2, of the U.S. Australian income tax treaty, if an Australian superannuation fund can be classified as a public pension or social security, Australia would have exclusive taxing rights to the income.

In order to determine if Article 18 can encompass a superannuation fund, the term public “social security” must be defined. The U.S.-Australia does not define this term. Since the treaty or its technical explanations do not define this term, it may be possible to refer to definitions provided by the Organization for Economic Cooperation and Development (“OECD”).  The OECD publishes guidance in the form of commentaries, which are intended to aid in interpreting the provisions of the tax treaties. The OECD Commentaries are updated from time to time to reflect evolving consensus among the member OECD countries regarding the meaning of particular Model Treaty provisions. If both the U.S. and a treaty partner were members of the OECD when the treaty was drafted, U.S. courts may refer to OECD commentary to interpret terms in that income tax treaty. See Podd v. C.I.R., 76 T.C.M. 906 (1998) (citing U.S. v. A.L. Burbank & Co., 525 F.2d 9, 15 (2d Cir. 1975); North W. Life Assurance Co of Canada v. C.I.R., 107 T.C. 363 (1996); Taisei Fire & Marine Ins. Co. v. C.I.R., 104 T.C. 535, 546 (1995) (construing the Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Mar. 8, 1971, U.S.-Japan, 23 U.S.T. 969, with reference to the Model Treaty and its commentary).

The United States joined the OECD in 1961 while Australia joined in 1971. The U.S.-Australia income tax treaty was signed in 1982 and went into effect in 1983 with an amending protocol in 2001. Therefore, U.S. courts may defer to the OECD with regard to interpreting treaty terms. According to the OECD, the term “social security” generally “refers to a system of mandatory protection that a state puts in place in order to provide its population with … retirement benefits.” See 2014 OECD Commentary, Art 18, 28. However, the OECD Model Income Tax Treaty does not specifically cover social security; it merely suggests that “payments under a social security system… could fall under Article 18, 19 or 21,” which reference pensions from government services, private sector service, or other income, respectively. See 2014 OECD Commentary, Art 15, 2.14. On the other hand, the U.S.-Australia income tax treaty, unlike the OECD Model Income Tax Treaty, does specifically have a provision addressing taxing rights with regard to social security. Nevertheless, the OECD commentary broadly interprets “payments under a social security system” to include payments under a “worker’s compensation fund,” which is not considered “social security” in the United States. The OECD has also impliedly recognized Australian superannuation as a part of Australia’s social security system. See Pensions at a Glance 2013: Country Profiles – Australia. (Although the report refers to superannuation as a private pension, the report seems to be referring to the fact that superannuation funds are privately managed).

The OECD takes a very broad and inclusive approach as to what constitutes “social security.” The Australian state-mandated superannuation system fits the precise definition of social security as provided by the OECD. Under the OECD definition of “social security,” a superannuation account can be classified as social security for purposes of Article 18, Paragraph 2 of the U.S.-Australia income tax treaty.

Even though a compelling argument can be made that the definition of “social security” is broad enough to encompass a superannuation fund, Article 18, Paragraph 2 of the U.S.-Australian income tax treaty provides an implicit (or indirect) definition of “social security” as being a kind of “public pension.” A superannuation fund could be considered “privatized social security.” Defining a superannuation account as “privatized social security” may remove it from Article 18, Paragraph 2 of the treaty. An IRS Chief Counsel Memorandum characterizes Australian superannuation funds as private retirement plans. See IRS CCA 200604023 (October 24, 2005). We are aware of at least one former tax practitioner that took the position that Australian Superannuation Funds should be classified as Australian Social Security and are therefore not taxable under Article 18 paragraph 2 of the United States-Australian income tax treaty. Under this position, income and distributions are not taxable in the United States. In claiming a treaty position, this former tax practitioner claimed that an Australian Superanniation Fund did not need to be disclosed to the IRS on a Form 8938. (Page 6 to the instructions of Form 8938 provides that “Foreign Social Security” does not need to be disclosed on Form 8938). If an Australian superannuation fund consisted only of mandatory contributions, such an argument may have support. The problem is that most Australian superannuation funds consist of funds from multiple sources.

At this point, it is unclear if an Australian superannuation fund can be treated as a public pension or social security under the U.S.-Australia income tax treaty. There is a case pending before the United States Tax Court that may eventually offer guidance in this area.  In Dixon v. Commissioner, No. 13874-19 (2019), Dixon argued that his superannuation funds were exclusively taxable under Article 18, Paragraph 2 of the U.S.-Australia income tax treaty. The IRS challenged this position. The case has been continued and it remains to be seen if the Tax Court will issue an opinion on this issue. In the meantime, we can take a closer look at how a U.S. citizen or resident that receives a distribution from a superannuation fund could potentially exclude the distribution under the treaty.

Article 19 of the U.S.-Australia Income Tax Treaty

Article 19 of the U.S.-Australia income tax treaty provides that “wages, salaries and similar remuneration, including pensions, paid from funds of one of the Contracting States, of a state or other political subdivision thereof or an agency or authority of any of the foregoing for labor or personal services performed as an employee of any of the above in the discharge of government functions to a citizen of that State shall be exempt from tax by the Contracting State.” The Savings Clause contained in Article 1(4)(b) of the U.S.-Australia income tax treaty except Article 19 for U.S. persons that are not U.S. citizens or green card holders. Thus, Article 19 may potentially be utilized by an individual who is a U.S. person only by reason of the substantial presence test from being taxed on distributions from an Australian superannuation fund.

Can a Superannuation Fund be “Rolled Over”

In some cases, U.S. taxpayers may “rollover” an “eligible retirement plan” on a tax-free basis to another “eligible retirement plan.” Under Australian law, a superannuation fund can be rolled over from one superannuation fund to another tax-free. Although a tax-free “rollover” of a superannuation fund may be permissible under the tax law of Australia, there are no provisions in the Internal Revenue Code or its regulations that permits a tax-free “rollover” of a superannuation fund for U.S. tax law purposes.

U.S. Reporting Requirements for Superannuation Funds

FBAR Reporting Requirement

In general, U.S. persons having a financial interest in, or signature authority over, a bank, securities, or other financial account in a foreign country whose aggregate balance exceeds $10,000 on any given day of the calendar year, must file a FinCEN 114 (“FBAR”). A U.S. person has a financial interest in a foreign financial account for which he or she is the owner of record or holder of legal title, regardless of whether the account is maintained for the benefit of the U.S. person or for the benefit of another person. A person has signature authority over an account if the person can control the disposition of assets held in a foreign financial account by direct communication (whether in writing or otherwise) to the bank or other financial institution that maintains the financial account. A superannuation fund is a foreign financial account located in a foreign country. If a U.S. person is a beneficiary of a superannuation fund and the valuation of the fund exceeds the legal threshold, the fund must be disclosed on a FinCEN 114. The IRS can assess an annual penalty of $10,000 per year for failing to disclose a superannuation fund on a FinCEN 114 if the IRS determines violation was non-willful. If the IRS believes that the failure to disclose a superannuation fund on an FBAR was “willful,” the IRS can assess an annual penalty of $100,000 or 50% of the balance of the account, whichever is greater.

Form 8938 Reporting Requirements

Form 8938 is used to report interests in specified foreign financial assets. Specified foreign financial assets include: 1) financial accounts maintained by a foreign financial institution; 2) stock or securities issued by someone that is not a U.S. person; 3) any interest in a foreign entity; and 4) any financial instrument or contract that has an issuer or counterparty that is not a U.S. person. The reporting thresholds generally range between $50,000 and $150,000. A superannuation fund is a financial account maintained by a foreign financial institution that needs to be disclosed on a Form 8938 by a U.S. person if its value exceeds the threshold range. The penalty for not disclosing a superannuation fund on a Form 8938 is $10,000 per year.

Form 8621

If the investments held by a superannuation fund is composed of foreign mutual funds and the superannuation fund can be classified as a grantor trust for U.S. tax purposes, the U.S. person beneficiary will need to report any PFIC held by the superannuation fund on a Form 8621 to the IRS.

Conclusion

The foregoing discussion is intended to provide the reader with a basic understanding of the U.S. taxation of an Australian superannuation fund. It should be evident from this article that this is a relatively complex subject. A U.S. holder of an Australian superannuation fund should review his or her particular circumstances with a qualified U.S. international tax attorney. We have significant experience providing planning and compliance advice to U.S. holders of Australian superannuation funds.

Anthony Diosdi is one of several tax attorneys and international tax attorneys at Diosdi & Liu, LLP. Anthony focuses his practice on providing tax planning domestic and international tax planning for multinational companies, closely held businesses, and individuals. In addition to providing tax planning advice, Anthony Diosdi frequently represents taxpayers nationally in controversies before the Internal Revenue Service, United States Tax Court, United States Court of Federal Claims, Federal District Courts, and the Circuit Courts of Appeal. In addition, Anthony Diosdi has written numerous articles on international tax planning and frequently provides continuing educational programs to tax professionals. Anthony Diosdi is a member of the California and Florida bars. He can be reached at 415-318-3990 or adiosdi@sftaxcounsel.com.