What is the issue?

One of the major effects of the 2016 superannuation reforms will be to further distance the nature of a TRIS from an ABP, because from 1 July 2017:

• a TRIS will no longer be eligible for the earnings tax exemption on assets supporting the TRIS;
• assets supporting an ABP will continue to be eligible for the earnings tax exemption; and
• a transfer balance cap will limit the total amount of superannuation assets a member can transfer into the tax-free earnings phase (this is referred to as retirement phase in the new laws, and can also be thought of as the ABP phase), but TRISs will not be limited by this transfer balance cap (since they are not eligible for the earnings tax exemption, there is no reason for the transfer balance cap to limit them).

Accordingly, many might want to be able to access an ABP as soon as possible and thereby access the tax-free earnings phase.

A person only needs to reach their preservation age to access a TRIS. There is no need for the person to have actually retired. Preservation age for a person is determined by the person’s year of birth and can range from 55 to 60 years old.

The main ways in which it is possible for a person to access their superannuation benefits as an ABP are for a person to retire for the purposes of superannuation law or reach 65 years of age. The timing on when somebody reaches 65 is beyond the ability of mortals to manipulate. However, retirement under superannuation law can require a close inspection of the quirks of the definition. Retirement is specifically defined under superannuation law and does not simply mean retirement in the ordinary sense of the word. Additionally, the growing importance of the condition of release may mean additional ATO scrutiny.

Meaning of retirement in the regulations

Under the Superannuation Industry (Supervision) Regulations 1994 (Cth) (‘SISR’), reg 6.01 provides that retirement can happen under either of two limbs as follows:

• Limb 1 — for a person who has reached their preservation age which for them was an age under than 60, such a person is taken to be retired if:
• an arrangement under which the person was gainfully employed has come to an end; and
• the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full-time or a part-time basis; or
• Limb 2 — for a person who has reached the age of 60 — such a person is taken to be retired if an arrangement under which the person was gainfully employed has come to an end, and either:
• the person attained 60 on or before the ending of the employment; or
• the trustee is reasonably satisfied that the person intends never to again become gainfully employed, either on a full-time or a part-time basis.

Gainfully employed is defined to mean employed or self-employed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment (reg 1.03(1) of the SISR).

Part-time is defined to mean gainfully employed for at least 10 hours, and less than 30 hours, each week (reg 1.03(1) of the SISR).

Restrictions in the definition

Examining the definition, it is not possible to retire if one has never worked. Also, it is impossible to meet the retirement definition before reaching preservation age. However there is quirk here, since under limb 1, it is possible for a person to cease gainful employment early (eg, at age 45), and then after reaching a preservation age that is less than 60 (say many years later at age 59) the trustee can at that later time be reasonably satisfied that the person never intends to be gainfully employed again. Accordingly, for limb 1, the ceasing of gainful employment can be early and does not have to be at the same time as the trustee’s inquiry.

What ‘gainful employment’ is sufficient to retirement from?

It is not possible meet the retirement definition by ceasing simply any job, work or task. Rather, both possible limbs of the test involve the ceasing of gainful employment. What does it mean to be gainfully employed? Gainfully employed means ‘employed or self-employed for gain or reward in any business, trade, profession, vocation, calling, occupation or employment’. This is narrower than many realise because ‘employment or self-employment’ is always required and ‘for gain or reward’ is also always required. Whether or not there is employment is a multi-factor legal test based on things such as degree of control, who bears the risk of the venture, whether standard working hours exist, etc. Accordingly, not every task or role is enough. For example, a director of a small private company is not likely to actually be an employee by virtue of that role, since a directorship is an office but is not necessarily employment (see, eg, Beljan v Energo Form Act Pty Ltd [2013] ACTMC 21 [22]). On the other hand, genuinely driving for Uber as a paid form of self-employment is likely to qualify.

Working two jobs and stopping one

For limb 2 of the definition, those over 60 have some greater flexibility to meet the definition since that limb only requires that ‘an arrangement under which the member was gainfully employed has come to an end’ and that the person attained 60 before the ending of the employment. This will mean that a person who works two genuine jobs can be taken to retire if one job comes to an end after age 60, even if the other job continues. This can be true even if the remaining job had the greater number of hours and remuneration flowing from it. For example, it is possible that a person over 60 with a full time job could be genuinely also self-employed as an Uber driver, and ceasing only the Uber self-employment could in some circumstances be enough to meet the retirement definition.

David Oon, senior associate, DBA Lawyers