What are the super and retirement rules for over-65s?

Q: My wife (age 63) and myself (age 65) have a small business. I was told by an organisation that at 65 or over I could put money into super, pay 15% tax on the way in and then draw it out when I wished and pay no tax. In fact I have been told to pay myself $30,000 or less and “launder” the rest of my income through my super fund. My accountant has told me that she thinks I have to set up a pension scheme. Could you please confirm what the correct situation is?

Trish’s response: I need to divide your question into four parts: making super contributions, accessing super benefits, running an income stream and tax management strategies.

Before I do provide an answer, I must point out that this site does not give financial advice or tax advice. We are an information site which means any response that I give is a general response for the benefit of all visitors to our site, rather than a response that you can rely on as personal advice. In short, I will be explain the contribution rules for over-65s, when Australians can access super benefits, the rules that apply when a super account is in pension phase and the tax management strategy that you mention in your question.

Making super contributions

Anyone aged 65 or over, must satisfy a work test before making super contributions. The work test involves working 40 hours in any 30-day period in the financial year in which you plan to contribute. You must be paid for that work.

Note: Anyone under the age of 65 can make super contributions without satisfying a work test.

You can make two types of contributions – concessional and non-concessional. Concessional (before-tax) contributions are subject to a 15% contributions tax upon entry to the super account, while non-concessional (after-tax) contributions are not subject to this super tax upon entry into the super fund. I explain the contribution rules for over-65s in more detail and related articles on the general contribution rules in the following articles:

• 65 and over: Making super contributions
• For over 65s: ten super tips when making super contributions

Note: Owners of small businesses may be eligible for special capital gains tax (CGT) concessions when planning for retirement (click here for the ATO link on the topic), including a special CGT cap when contributing business proceeds to super.

Accessing super benefits

You can access your benefits when you satisfy a condition of release. For most Australians, the condition of release that applies is reaching preservation age (at least age 55) and retiring.

Reaching the age of 65 is also a condition of release, which means that you don’t have to retire to access your super benefits on or after the age of 65.

An individual aged, say 63, would need to satisfy a condition of release, such as retiring or starting a transition-to-retirement pension (TRIP) to access preserved super benefits.

I explain the conditions of release in my article Accessing super early: 12 legal reasons to cash your super. You can also visit the ‘accessing super’ section of this website for more articles on accessing super benefits.

Note: If you access your super benefits on or after the age of 60, your super benefits are free of tax (unless you’re a member of certain public sector funds known as ‘untaxed funds’). You can find more information on the tax treatment of super benefits in the ‘super & tax’ section of this site.

Running an income stream

You don’t have to be receiving a superannuation pension (also known as a superannuation income stream) to access your super benefits, but earnings on a super account are taxed differently depending on whether your super account is in pension phase or accumulation phase.

In simple terms, accumulation phase is when you haven’t started a pension/income stream. Any earnings on fund assets while in accumulation phase are subject to 15% earnings tax. When a super account in pension phase, any earnings on fund assets are exempt from tax. Starting a pension means tax-free fund earnings.

Note: Tax-free fund earnings are different from tax-free super benefits payable from a super fund. The difference is that fund earnings relate to the super fund, while super benefits relate to the individual receiving the benefits.

If an individual is under the age of 65 and hasn’t retired, and wants to access super benefits then a popular strategy is to start a transition-to retirement-pension (TRIP) which enables a working individual aged at least 55 years to access a maximum of 10% of their super account each year as pension payments. I explain the rules applicable to TRIPs in my article TRIPs: 10 interesting facts about transition-to-retirement pensions .

Tax management strategies

Many Australians use a super fund to save for retirement because the Government provides tax incentives to do so. The deal is that you get tax breaks for locking your money away until you retire. I provide a summary of how super is taxed in my article Super for beginners, part 17: Four must-knows about super’s tax rules and in the ‘super and tax’ section on this website.

If you’re considering tax management strategies then the best person to talk to is a registered tax agent, typically an accountant. Any discussion in this article on tax matters is for illustrative purposes only.

The general rule is that if an individual is paying income tax of 15% or less on personal income, then saving via a super fund is not a tax-effective option (although the Government is planning to introduce a refund of contributions tax on employer super contributions for those paying less than 15% tax). For the 2011/2012 year, anyone with a taxable income of less than $37,000 pays a maximum of 15% income tax, which means saving via a super fund is usually a tax-neutral option.

If you have reached Age Pension age, then you’re likely to be eligible for the Senior Australians Tax Offset (SATO) which means you may not pay any tax on your non-super income. SATO is not available if your income is significant. I explain SATO in my article No tax in retirement because you SATO.

So, the main message is: if your marginal rate of income tax is 15% or less, then superannuation may not offer any tax breaks (With every general rule however there are a few exceptions including the following:

1. Accessing co-contribution scheme. A co-contribution is a tax-free payment from the Government, paid directly into your super account. If your income is under a certain threshold, and you’re working, and you make a non-concessional (after-tax) contribution, then the Government makes a tax-free payment to your super fund. Receiving a 100% tax-free return on a $1,000 super contribution can be a very tax-effective decision. I explain the co-contribution in my article Cashing in on the co-contribution rules.
2. Taking benefits from super on or after age 60. Super benefits paid from a super fund on or after 60 are tax-free (except for benefits paid from some public sector funds) which means tax-free super income beats paying income tax.
3. Starting an income stream/pension. A super account in pension phase is not subject to earnings tax on the account’s earnings, so an individual aged 60 receiving a superannuation pension receives tax-free benefit payments, and the super fund pays no tax on its earnings. The super payments are not counted as ‘taxable income’ which means an individual could receive, say, $100,000 a year, from his super fund and still earn nil taxable income. Even when an individual starts a pension before the age of 60, tax offsets and how an individual structures their salary (if any) and pension payments can mean a lower tax bill than if they hadn’t used the super structure.
4. Proposed refund of contributions tax for those on lower incomes. Subject to legislation, the Federal Government will contribute up to $500 each year to an individual’s superannuation account, where the individual’s adjusted taxable income is less than $37,000. The exact amount is calculated by working out how much contributions tax is payable on the actual Superannuation Guarantee contribution, and then refunding this amount as a payment to the individual’s super account.

Note: Seek tax advice if you’re considering using a super fund as a means of minimising tax.

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