Division 296 tax legislation (revised)
For nearly 3 years now the Government has been proposing to bring in a new tax on taxpayers with high total superannuation balances. It has been referred to as the $3 million tax.
Previous versions of the draft legislation resulted in significant opposition from both industry groups and political parties due to the unfair and unintended consequences of poorly worded legislation. Most significant was the taxing of unrealised capital gains within Self-Managed Superannuation Funds (SMSFs).
Prior to Christmas, the Government finally released their updated draft legislation for the introduction of the new Division 296 tax. The main points are as follows:
· The introduction of the tax will commence on 1 July 2026 (rather than 1 July 2025), which means the first financial year will be the year ending 30 June 2027.
· The tax of 15% will apply on the portion of earnings on total superannuation balances above $3 million.
· An extra tax of 10% will now also apply on the portion of earnings on total superannuation balances above $10 million.
· The $3 million and the $10 million thresholds will now be indexed in line with CPI (previous legislation had no indexation).
· After the first year the calculation of the portion above the $3 million will be based on the higher of the opening and closing total superannuation balance during the financial year. This is a significant change as previously it was only based on the 30 June balance at the end of each year. This allowed taxpayers to withdraw superannuation assets prior to 30 June to reduce their member balance and therefore avoid any application of Division 296 tax.
· The definition of earnings has also changed. Earnings will now be based on normal tax principles and be closer to the calculation of taxable income (which is much fairer). Unrealised capital gains will no longer be considered as part of earnings.
· Special protections will be included to ensure any capital gains accrued up to 30 June 2026 will not be included in future earnings calculations.
The draft legislation was open for industry comment up to 16 January 2026.
The Self-Managed Superannuation Fund (SMSF) Association and other industry groups have tabled concerns regarding the complexity and over-complicated nature of the draft legislation. In their eyes this can only lead to higher compliance costs (in addition to the tax).
We will keep you informed if there are any further proposed changes prior to this legislation becoming law.
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