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14 November 2023

This is an updated version of an article first published on 3 July 2023. It has been updated to reflect additional details contained in exposure draft legislation released for comment on 3 October 2023.

The Government intends to introduce a new 15 per cent tax on the investment earnings of super balances of above $3 million. This would be in addition to the existing tax arrangements that apply to investment earnings at the superannuation fund level.

Following consultation on the policy details, the Government released an exposure draft of legislation along with draft explanatory materials on 3 October 2023 for comment by 18 October 2023.

The exposure draft proposes to insert new ‘Division 296 – Better targeted superannuation concessions' into the Income Tax Assessment Act 1997 which (together with imposition legislation) will give effect to the new tax. Hence, the tax is proposed to be called ‘Division 296 tax’.

In this article for financial services professionals, we provide a summary of the proposal and explain, with examples, how it is intended to operate.

Why the change?

The change was announced in the context of an open consultation on legislating the policy objective of superannuation, which (as proposed) is “to preserve savings to deliver income for a dignified retirement, alongside government support, in an equitable and sustainable way”. The Government has since released an exposure draft of legislation to give effect to this change.

It also came the same day Treasury released its annual 2022-23 Tax Expenditures Statement, which shows superannuation tax breaks are worth about $50 billion per year, the majority of which flow to high income earners. Treasury projects that the cost of the super tax concessions will exceed that of the age pension by 2050.

More broadly, the announcement has come as the Government has been working to improve the federal budget position.

Against this backdrop, the change is intended to better target the superannuation concessions, improve equity and make the superannuation system more sustainable.

When will it commence?

The new tax is intended to be effective from 1 July 2025, with the first assessments being issued in 2026-27 or later.

The change is not yet law. Following public consultation, the Government aims to introduce legislation as soon as practicable.

Who will be impacted?

Individuals with a Total Superannuation Balance (TSB) over $3 million will be subject to an additional tax of 15 per cent on earnings corresponding to the amount above the $3 million threshold.

According to the Government, the new tax will apply to around 80,000 people.

Individuals with balances below the $3 million threshold will not be impacted by the change.

The Government has affirmed its intention not to automatically index the threshold, so the number of people subject to the tax may increase over time as super balances grow.

Exceptions

An individual who meets any of the following three exceptions in an income year will not be liable for Division 296 tax:

  • an individual who is a child recipient of a superannuation income stream (because of the death of their parent) at the end of the income year
  • an individual who has made a structured settlement contribution during the income year or in any earlier income year
  • an individual who dies before the last day of the income year.

How is it proposed to work?

The approach to implementation is intended to minimise compliance costs and complexity, particularly given it will initially impact just 0.5 per cent of superannuation fund members. In the Government’s own words:

As the overwhelming majority of superannuation members are unaffected by this measure, the Government’s implementation approach seeks to avoid imposing significant (and potentially costly) systems and reporting changes that could indirectly affect other members. The proposed approach is based on existing fund reporting requirements. Noting that funds do not currently report (or generally calculate) taxable earnings at an individual member level, the calculation uses an alternative method for identifying taxable earnings for members with balances over $3 million.1

Rather than the new tax being applied at the super fund level as with existing earnings tax arrangements, it will be levied on impacted super fund members directly, in a similar way to Division 293 tax (the existing additional 15% tax that applies to the concessional contributions of higher income earners). The member will have the choice to pay the tax out-of-pocket or from their superannuation balances.

Only the proportion of earnings corresponding to balances above $3 million will attract the additional 15 per cent tax.

Earnings will be calculated with reference to the differences in TSB at the start and end of the financial year, with adjustments made for contributions and withdrawals made during the year.

According to Treasury, accounting for withdrawals and contributions is not intended to represent a comprehensive adjustment for all cash flows throughout the year. Rather, these adjustments make provision for events that would otherwise skew the estimated earnings calculation due to their direct impact on an individual’s TSB at the end of the financial year.2

The exposure draft released in October 2023 provides additional details on the contributions and withdrawals which will be factored into the calculations.

If an individual experiences an earnings loss in a financial year, the loss can be carried forward to reduce earnings in future years.
 

Calculation process

While the draft legislation has introduced some new concepts and adjustments to the calculation process that was initially proposed in the consultation paper, the calculation methodology remains substantially unchanged and relies on the concept of Total Superannuation Balance.

 

Total Superannuation Balance

 

The Division 296 tax earnings calculation is based on the change in TSB from one year to the next. This approach is more aligned with an accrual basis for taxation compared to the current superannuation tax system which generally taxes amounts at the point of realisation.

 

Importantly, a client’s TSB on a particular 30 June may differ from the total of their account balances on that date. 

 

This is because, for accumulation phase superannuation interests and account-based pensions, the TSB is based on the total amount of the superannuation benefits payable if the member voluntarily closed their account(s), often referred to as the withdrawal value. When a member withdraws benefits from a fund, there may be accrued earnings not yet paid and/or costs associated with liquidating investments (eg transaction costs and capital gains tax), which are not reflected in the member’s account balance but which are taken into account in determining the withdrawal value.

 

For non-account based income streams, TSB is currently based on the Transfer Balance Account value.

 

To ensure Division 296 tax operates as intended, changes are proposed to the way TSB is determined. The intention is to remove the link between TSB and Transfer Balance Account when valuing non-account based income streams, ensuring valuations are applied on an annual basis. These changes will apply beyond Division 296 tax to TSB valuations made from immediately before 1 July 2025 onwards. The particular methods for valuing non-account based income streams will be dealt with in regulations, yet to be released.

 

The exposure draft also proposes that, for the purposes of Division 296 tax only, LRBA loans that would otherwise be included in TSB (for purposes other than Division 296) will be disregarded. This ensures the tax is calculated on net assets.

 

For more information, see ATO: Super contributions - too much can mean extra tax, Total Superannuation Balance.

 

Once it has been established that an individual’s TSB at the end of the relevant financial year exceeds $3 million and the amount of earnings for the year is greater than nil, the steps in the calculation process below will apply to determine the tax liability.3

 

Calculating Division 296 tax for an income year

 

Step 1 – Calculate Superannuation earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions

    Superannuation earnings = Adjusted TSBCurrent FY – TSBPrevious FY

If the amount calculated at step 1 is negative for an income year, the individual will have Transferrable negative superannuation earnings which can be used to offset positive earnings in a future income year. The Step 1 calculation in the relevant future income year is modified to account for Transferrable negative superannuation earnings. See example 5.

 

Step 2 – Calculate the proportion of earnings that corresponds to the TSB above $3 million

    Proportion of earnings = (TSBCurrent FY - $3 million)/TSBCurrent FY

 

Step 3 – Calculate Taxable superannuation earnings

    Taxable superannuation earnings = Proportion of earnings x Superannuation earnings

 

Step 4 – Calculate tax liability

    Division 296 tax = 15% x Taxable superannuation earnings

Components of the calculations

TSBCurrent FYmeans TSB as at 30 June of the financial year of calculation. In the first year of application, this will be TSB at 30 June 2026.
Adjusted TSBCurrent FY

Means TSBCurrent FY adjusted for withdrawals and contributions made in the current financial year, calculated as follows:

Adjusted TSBCurrent FY = TSBCurrent FY + Withdrawals total – Contributions total

Withdrawals total

means the total value of amounts withdrawn in the current financial year. Includes:

  • a superannuation benefit payment
    • for First Home Super Saver payments, an adjustment will apply to preserve the concessional treatment of associated earnings
  • superannuation benefits transferred via spouse contribution-splitting
  • superannuation benefits transferred to another person via a family law payment split
  • amounts withheld from an excess untaxed roll-over amount
  • amounts released under a valid requested release authority
  • any amounts prescribed by regulations (yet to be made).

According to Treasury, the intention is to reflect what the individual’s current TSB would have otherwise been had they not made the withdrawals, ensuring that earnings are not understated.

Contributions total

means the total of the following amounts received during the income year:

  • contributions made to the individuals superannuation plan (or 85% of the amount for concessional contributions)
  • contributions-splitting superannuation benefits payments
  • family law superannuation payments made due to a payment split
  • the TSB value of a superannuation death benefit interest when the individual becomes a retirement phase recipient
  • a death or total and permanent disability insurance payment (with the exception of continuous disability payments)
  • certain allocations from a fund reserve
  • a transfer from a foreign superannuation fund
  • the increase in TSB value of a superannuation interest as a result of a remediation payment or compensation for loss as a result of fraud or dishonesty
  • any amounts prescribed by regulations (yet to be made).

The intention is to reflect what the individual’s TSB would have been had there not been any contributions, ensuring that earnings are not overstated.

TSBPrevious FY

means the TSB as at 30 June of the year prior to the year of calculation. In the first year of application, this will be 30 June 2025.

 

If this is less than $3 million, it will be adjusted upwards to $3 million so as to ensure any growth that occurs below the $3 million threshold is not counted as earnings. This ensures that earnings on balances of less than $3 million will not be subject to the new tax.

Examples

Example 1 – Simple calculation4

Esther’s TSB at 30 June 2025 is $3.5 million. On 30 June 2026 her TSB has increased to $4 million. She makes no contributions or withdrawals during the 2025-26 financial year.

Step 1 – Calculate Superannuation earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions

Superannuation earnings   = Adjusted TSBCurrent FY – TSBPrevious FY

          = $4 million – $3.5 million

          = $500,000

Step 2 – Calculate the proportion of earnings that corresponds to the TSB above $3 million

Proportion of earnings   = (TSBCurrent FY – $3 million)/TSBCurrent FY

          = ($4 million – $3 million)/$4 million

          = 0.25

Step 3 – Calculate Taxable superannuation earnings

Taxable superannuation earnings= 15% x Superannuation earnings x Proportion of earnings

          = $500,000 x 0.25

          = $125,000

Step 4 – Calculate tax liability

Division 296 tax = 15% x Taxable superannuation earnings

          = 15% x $125,000

          = $18,750


Example 2 – Tax liability when there has been a withdrawal5

Carlos is 69 and retired. He has a TSB of $9 million on 30 June 2025, which grows to $10 million on 30 June 2026. He draws down $150,000 during the year and makes no additional contributions to the fund.

Step 1 – Calculate Superannuation earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions

Superannuation earnings   = Adjusted TSBCurrent FY – TSBPrevious FY

          = ($10 million + $150,000) – $9 million

          = $1,150,000

Step 2 – Calculate the proportion of earnings that corresponds to the TSB above $3 million

Calculate the proportion of earnings that corresponds to the TSB above $3 million

Proportion of earnings   = (TSBCurrent FY – $3 million)/TSBCurrent FY

          = ($10 million – $3 million)/$10 million

          = 0.7

Step 3 – Calculate Taxable superannuation earnings

Taxable superannuation earnings = Superannuation earnings x Proportion of earnings

          = $1,150,000 x 0.7

          = $805,000

Step 4 – Calculate tax liability

Division 296 tax = 15% x Taxable superannuation earnings

          = 15% x $805,000

          = $120,750


Example 3 – Tax liability when there has been a contribution6

Amanda is 48 and working full-time on a salary of $150,000. She has no other income. Amanda has a TSB of $4 million at 30 June 2025, which grows to $4.5 million at 30 June 2026. Amanda makes total concessional contributions to superannuation of $27,500. These contributions are taxed at 15 per cent. Her after-tax (net) contributions are $23,375 (85% x $27,500).

Step 1 – Calculate Superannuation earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions

Superannuation earnings   = Adjusted TSBCurrent FY – TSBPrevious FY

          = ($4.5 million – $23,375) - $4 million

          = $476,625

Step 2 – Calculate the proportion of earnings that corresponds to the TSB above $3 million

Proportion of earnings   = (TSBCurrent FY – $3 million)/TSBCurrent FY

          = ($4.5 million – $3 million)/$4.5 million

          = 0.333333

Step 3 – Calculate Taxable superannuation earnings

Taxable superannuation earnings = Superannuation earnings x Proportion of earnings

          = $476,625 x 0.333333

          = $158,874.84

Step 4 – Calculate tax liability

Division 296 tax = 15% x Taxable superannuation earnings

          = 15% x $158,874.84

          = $23,831


Example 4 – Tax liability when opening balance is below $3 million7

As noted earlier, if the previous year’s TSB is less than $3 million, then for the purposes of step 1, the previous year’s TSB will be substituted with $3 million to ensure that only the earnings above the threshold are captured.

Tim has an SMSF with a TSB on 30 June 2025 of $2.8 million. He makes $10,000 of concessional contributions to his superannuation fund over the 2025-26 financial year. After the 15 per cent contributions tax, Tim’s net contributions are $8,500. Tim has some strong investment returns in his SMSF and his TSB increases to $3.2 million by 30 June 2026.

Step 1 – Calculate Superannuation earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions

Superannuation earnings   = Adjusted TSBCurrent FY – $3 million

          = ($3.2 million – $8,500) – $3 million

          = $191,500

Step 2 – Calculate the proportion of earnings that corresponds to the TSB above $3 million

Proportion of earnings = (TSBCurrent FY – $3 million)/TSBCurrent FY

          = ($3.2 million – $3 million)/$3.2 million

          = 0.066667

Step 3 – Calculate Taxable superannuation earnings

Taxable superannuation earnings = Superannuation earnings x Proportion of earnings

          = $191,500 x 0.066667

          = $12,766.73

Step 4 – Calculate tax liability

Division 296 tax = 15% x Taxable superannuation earnings

          = 15% x $12,766.73

          = $1,915


What happens if earnings are negative?

If the earnings amount calculated at step 1 is negative, the amount will be able to be used to offset positive earnings in future years. This will be done before the proportion at step 2 is calculated. These amounts will not expire and will be able to be used across multiple years. No distinction will be made between different types of earnings (e.g. capital gains versus income). Negative earnings will not be able to be used to offset positive income elsewhere (either at the fund or individual level).

Example 5 – Treatment of negative earnings8

2025-26 Financial Year

Returning to example 2, we will now assume that Carlos’ TSB falls from $9 million on 30 June 2025 to $8 million on 30 June 2026. He draws down $150,000 during the year and makes no additional contributions to the fund.

Step 1 – Calculate Superannuation earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions

Superannuation earnings   = Adjusted TSBCurrent FY – TSBPrevious FY

          = ($8 million + $150,000) – $9 million

          = –$850,000

Carlos does not pay Division 296 tax and has Transferrable negative superannuation earnings (TNSE) for the 2025-26 year of $850,000.


2026-27 Financial Year

By 30 June 2027, Carlos’ TSB has recovered to $8.5 million and he has made a further $150,000 in withdrawals.

Carlos carries forward his loss of $850,000 from the previous financial year. He uses this to offset the $650,000 earnings from the 2026-27 financial year.

His Superannuation earnings are calculated under a modified calculation as follows.

Step 1 – Calculate earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions. Where there are Unapplied TNSE, a modified calculation applies.

Superannuation earnings (modified) = Adjusted TSBCurrent FY – TSBPrevious FY – Unapplied TNSE

          = ($8.5 million + $150,000) – $8 million – $850,000

          = –$200,000

Carlos does not pay Division 296 tax and has TNSE of $200,000 for the 2026-27 year which can reduce superannuation earnings in future income years.


Example 6 – Treatment of negative earnings where TSB in current year is less than $3 million9

2025-26 Financial Year

Jamal has a TSB on 30 June 2025 of $3.2 million. By 30 June 2026, his TSB has reduced to $2.8 million. He has made no contributions or withdrawals during the year.

Jamal will not have Taxable superannuation earnings in the 2025-26 year because his TSB at the end of the year is less than $3 million and his Superannuation earnings are less than nil.

However, as his TSB on 30 June 2025 is greater than $3 million and he has negative Superannuation earnings, Jamal will have Transferrable negative superannuation earnings (TNSE). Where the current year’s TSB is less than $3 million, the TSBCurrent FY is substituted with $3 million to ensure that only the negative earnings for the part of his TSB over $3 million are captured and transferred to future years.

Step 1 – Calculate Superannuation earnings based on the change in TSB from one year to the next, with adjustments for withdrawals and contributions

Superannuation earnings   = $3 million – TSBPrevious FY

          = $3 million – $3.2 million

          = –$200,000

Jamal does not pay Division 296 tax and has TNSE for the 2025-26 year of $200,000.

 

Administrative arrangements

The ATO will rely largely on existing reporting mechanisms to determine who is subject to the new tax and to calculate the tax liability. However, some of the information the ATO will require to calculate the tax liability is not currently reported by super funds to the ATO. For example, APRA-regulated super funds do not currently report benefit payments, including pension payments. The Government has noted a preference to deal with any missing data through targeted reporting obligations and sought views on the method as part of the consultation process. The exposure draft legislation released in October 2023 does not provide any further detail on additional reporting requirements.

Once the tax liability has been calculated (by the ATO), a notice of assessment for the tax will be sent to individual, who will have the choice of paying the amount out-of-pocket or electing to release an amount from one or more of their super funds.

Similar to Division 293 tax, the new earnings tax will be separate from regular income tax arrangements. It will not be possible to reduce the tax liability through deductions, tax offsets and losses available via the personal income tax system.

The exposure draft proposes administrative arrangements that largely mirror those applying to Division 293 tax. However, a longer period of time will be provided for payment of Division 296 tax following the notice of assessment compared to Division 293 tax (84 days compared to 21 days). In addition, where a Division 296 tax liability remains unpaid after the due date, the debt will attract a specific general interest charge rate that is lower than the standard rate, calculated under the same method as the shortfall interest charge. The draft explanatory memorandum states that this allows taxpayers to be charged a rate of interest that is broadly similar to market rates and means that the rate of interest does not penalise taxpayers if they do not have liquidity within or outside of superannuation to meet the tax liability.

What about defined benefit superannuation interests?

Through the initial consultation process, the Government sought views on how it can apply a broadly commensurate treatment to defined benefit superannuation accounts. Aside from removing the link between TSB and Transfer Balance Account to ensure income streams are valued on an annual basis, the exposure draft leaves much of the detail around how these interests will be valued to the regulations, which are yet to be released.

In recognition that a defined benefit interest in the accumulation phase typically cannot be accessed to pay tax debts, Division 296 tax will be deferred to a debt account specific to the particular superannuation interest. The debt account arrangements largely mirror those applying to Division 293 tax, with interest calculated at the long-term bond rate at the end of the year. The exposure draft provides for deferral until 21 days after the first superannuation benefit is paid. Exceptions are proposed for certain kinds of superannuation benefits, for example a rollover or a benefit paid under severe financial hardship or on compassionate grounds. A member will be able to make a voluntary payment prior to this time (either from money outside superannuation or with money released from other funds under a release authority).

Constitutionally protected funds and interests of certain judges and justices

Constitutionally protected funds (CPFs) are prevented from being taxed directly due to constitutional limitations. Certain individual members of CPFs may also have certain tax protections. Amendments are proposed that exclude earnings on interests in CPFs from Division 296 tax. However, these interests will be counted for the purposes of determining if TSB exceeds the $3 million threshold.

In addition, no Division 296 tax will be imposed on earnings in respect of a defined benefit interest in a superannuation fund established under the Judges’ Pension Act 1968 of a sitting Commonwealth justice, where that person was appointed prior to 1 July 2025 and whilst they remain employed. Once again, the interests will be counted in the $3 million threshold but the excluded interests will not be counted when calculating the taxable superannuation earnings.

What’s next?

Once the Government has considered feedback on the exposure draft, a bill containing the changes will be introduced in Parliament.

Further details, including on the treatment of defined benefit interests, will be contained in regulations, yet to be released.

1Better Targeted Superannuation Concessions, Factsheet, The Australian Government the Treasury, 28 February 2023, p2.

2Better targeted superannuation tax concessions, Consultation paper, The Australian Government the Treasury, 31 March 2023, p.9

3If TSB at the end of the previous year was greater than $3 million and is reduced to below $3 million by the end of the relevant year due to negative earnings, the negative earnings on the portion above $3 million can reduce positive superannuation earnings in future years, see example 6.

4Based on Example – Calculating Earnings, Better targeted superannuation tax concessions, Consultation paper, The Australian Government the Treasury, 31 March 2023,  p.9. Updated to align with draft legislation process.

5Based on Example - Calculating earnings with a withdrawal, Better targeted superannuation tax concessions, Consultation paper, The Australian Government the Treasury, 31 March 2023,  p.9. Updated to align with draft legislation process.

6Based on Example – Calculating earnings with a contribution, Better targeted superannuation tax concessions, Consultation paper, The Australian Government the Treasury, 31 March 2023,  p.10. Updated to align with draft legislation process.

7Based on Example – Calculating earnings where opening balance is below $3 million, Better targeted superannuation tax concessions, Consultation paper, The Australian Government the Treasury, 31 March 2023,  p.10. Updated to align with draft legislation process.

8Based on Example – Negative earnings, Better targeted superannuation tax concessions, Consultation paper, The Australian Government the Treasury, 31 March 2023, p.11. Updated to align with draft legislation process.

9Based on Example 1.6 from Better Targeted Superannuation Concessions – Exposure draft explanatory materials, 3 October 2023, available at https://treasury.gov.au/sites/default/files/2023-09/c2023-443986-em.pdf.

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