|May 18, 2017||0|
For the majority of Australians superannuation can be an individual’s biggest asset, the notion of losing it when declaring bankruptcy is a very legitimate concern for the majority of our clients. With certain aspects of the economy doing quite well and other parts experiencing tough economic times, bankruptcy numbers in Australia still continue to increase. Economists don’t mention Australia’s two-speed economy much anymore, but it undoubtedly still is two-speed. With the help of a long-term boom in the Sydney and Melbourne housing markets, these major centres are doing quite well running at a nice speed, with no sign of stopping anytime soon. Nonetheless mining areas in North Queensland and Western Australia have basically stopped dead and in some areas firmly stuck in reverse.
The Past: Superannuation and bankruptcy. Not very long ago, the Bankruptcy Act 1966 ruled that all property (including superannuation) that belonged to a bankrupt at the start of their bankruptcy was to be awarded to their creditors. This raised the question: was there an interest in a superannuation fund property? The law expressly answered this question with a dubious no – the interest of a bankrupt in a regulated superannuation fund was not property divisible among creditors. Nonetheless, this protection of superannuation was not set in stone. In 2007 the laws changed, at that time the excess of a bankruptcy’s interest in a superannuation fund that exceeded the pension ‘reasonable benefit limit’ or (RBL) did constitute property that was divisible among creditors.
Post 2007 we have ‘Simpler Super’. The simpler super changes indicated a considerable change for superannuation and bankruptcy. The main change was, put simply, your superannuation is safe over and above the pension RBL amount. This means that protection of superannuation upon bankruptcy is now absolute, technically, a bankrupt can now have a great amount of super and it will be safe. The government officially described the changes through its explanatory memorandum, Superannuation Legislation Amendment (Simplification) Bill 2007, as follows:
Currently, under the Bankruptcy Act 1966, a bankrupt’s interest in a superannuation fund up to the bankrupt’s pension RBL is protected from being divisible among creditors. A bankrupt’s superannuation interest in excess of the pension RBL automatically vests in the bankruptcy trustee. The amendments remove references to RBLs from the Bankruptcy Act 1966 to ensure consistency with the new Simplified Superannuation rules, which abolish RBLs with effect from 1 July 2007. This means that, from 1 July 2007, a bankrupt’s entire interest in a superannuation fund is protected, if you know what you are doing.
Frequently Asked Questions
Question: Does this mean that I can intentionally contribute extra funds to my superannuation before I declare bankruptcy and it will be safe?
Answer: No. Although these changes safeguard your superannuation, 100% voluntary contributions beyond your employers required 9.5% will be seen as an asset and available to creditors given that it will be deemed a preference payment. In other words, if you sell your house and make $50,000 profit from doing so, then shovel it off into your super fund, the trustee will see that as a preference payment, or in plain English you paid your super fund $50,000 in preference to your creditors, so the trustee will claw back that excess from the fund, and allocate it towards your debts.
Question: What about my Self-Managed Super Fund (SMSF), is it also safe?
Answer: Yes. But there are things you will need to do once you are bankrupt; When it comes to a self-managed super fund and bankruptcy, bear in mind that the Superannuation Industry Supervision Act 1993 rules that a “disqualified person” must not be a trustee of a superannuation entity. Basically, if you are bankrupt you can no longer be a trustee of any trust including a super fund. A disqualified person includes a person who is an insolvent under administration, for instance, an undischarged bankrupt.
Essentially this means if you have a SMSF, you need to retire or resign as the trustee, or director of the corporate trustee, prior to becoming bankrupt or within six months after declaring bankruptcy. Failure to do so can result in imprisonment for a maximum of 2 years. As soon as the person resigns/retires, the SMSF will most probably fail to fulfill the basic conditions needed to be an SMSF and will mandate a restructure.
Restructuring can include transferring the bankrupt’s superannuation interests to a regulated superannuation fund and terminating the SMSF. Or you can delegate a registrable superannuation entity (RSE) licensee to act as trustee of the SMSF, wherein the fund would cease being an SMSF and would emerge as another form of superannuation fund. While RSE licensees can be costly, this is more suitable where the fund has ‘lumpy’ non-liquid assets (for example property) that can not freely be rolled into another superannuation fund. More often than not, a person who holds an enduring power of attorney in respect of a member can act as trustee of the SMSF in place of the member.
Question: I’m old enough to draw down my super, are all my payments to myself safe irrespective of how much?
Answer: Take care here, this could seriously cost you! As per the discussion above, an interest in a superannuation fund is utterly protected upon bankruptcy. The same applies to any lump sum collected from a superannuation fund as mentioned by the Bankruptcy Act. So as an example, you as a bankrupt who acquires a lump sum of $10 million from your superannuation fund could keep that money and it will be safe. Then again be warned the same is not true of pension payments received from superannuation funds. They are not protected in a similar way. Pension payments are considered as income and income only receives minimal protection from creditors. The precise level of protection afforded to pension payments is adjusted for inflation twice a year, but as at 22 February 2017, the level is as follows:
Dependants Income Limit
over 4 $74,441.00.
Anything you earn over these amounts annually, 50% of the excess is payable to the trustee similar to any income earned during bankruptcy and paid to creditors.
The difference in the treatment between lump sums and pensions has significant practical ramifications now that account-based pensions have been introduced; don’t assume it’s all safe and no matter what you do, get the right advice. At this point we advise you to call us and we will point you in the right direction. In other words, your super must be handled with care. Every case has a unique set of circumstances and between our firm and your financial advisor, we will secure the right outcome for you. If you need to know more, call Fresh Start Solutions Darwin on 1300 818 575.