When Can You Take Your Super ?

when can you take your Super?If you’re short on cash, that little pot of gold in your Superannuation fund can look mighty tempting. But if you’re not yet due to call time on your working life, is there a legal way to get your hands on your Super?

The answer lies in the ‘sole purpose’ test, which underpins access to your Superannuation. The sole purpose of Superannuation is to provide retirement benefits to fund members, or to their dependants if a member dies before retirement. It’s important to keep this in mind when you hear someone spruiking a scheme guaranteeing you early access to your Super.

The ATO recently warned against a scheme spreading through suburban Australia where scammers encourage people to access their Superannuation early to pay debts, take a holiday or provide money to family overseas in need. All the scammers need is a fee for their services and for you to sign blank forms and provide identity documentation. Typically, the forms are used to roll-over your Super from an industry fund, establish a SMSF and open a bank account for the new SMSF. Once the Superannuation is rolled into the SMSF, the funds are accessible to withdraw.

BUT accessing that Superannuation is illegal unless you meet strict conditions. Any Super that’s withdrawn early is taxed at your marginal tax rate, even if the money is returned to your fund later, plus you are actually disqualified from being a trustee of your SMSF. And if you knowingly allow Super benefits to be accessed illegally from your fund, penalties of up to $1.1 million and a jail term of 5 years can apply. Ouch.

Generally, you can only access your Super when:

  • you turn 65;
  • you reach ‘preservation age’ and retire; or
  • you reach preservation age and choose to keep working and start a transition to retirement pension.

Currently, the preservation age is 55 years old for those born before 1 July 1960. It then increases by one year, every year, up to the maximum of 60 years for those born after 30 June 1964.

There are some very limited circumstances where you can legally gain early access to your Super. Treasury is in the midst of a review into the early release of Super, but for the moment early access is only granted on the grounds covered below.

  1. Compassionate Grounds

Superannuation benefits can be released on compassionate grounds to meet expenses related to medical treatment, medical transport, modifications necessary for the family home or motor vehicles due to severe disability, and palliative care. Funds may also be released on compassionate grounds to prevent foreclosure of a mortgage or exercise of a power of sale over the fund member’s home (principal place of residence); or to pay for expenses with a dependant’s death, funeral or burial.

Early access to Super needs to be a last resort. It’s up to the person applying for early access to prove to the regulator that they don’t have the financial capacity to meet these expenses without access their superannuation.

In 2016-17, the Department of Human Services received 37,105 applications for early access to superannuation on compassionate grounds, with 21,258 approved. The average amount released was $13,644. The great majority (72%) of funds released were on medical grounds, 18% were released for mortgage payments

A person seeking early release for medical treatment must provide written evidence from at least two medical practitioners – one of whom must be a specialist – certifying that the treatment or medical transport:

  • is necessary to treat a life-threatening illness or injury; or
  • alleviate acute or chronic pain; or alleviate an acute or chronic mental disturbance; and
  • is not readily available to the individual or their dependant through the public health system.

Since 1 July, the Australian Taxation Office has taken over administration of early release applications, streamlining the process so applicants and Superannuation funds receive the compassionate release notice electronically and simultaneously.

  1. First Home Buyers

The First Home Super Saver Scheme (FHSS) enables first-home buyers to save for a deposit inside their superannuation account, attracting the tax incentives and some of the earnings benefits of superannuation.

Home savers can make voluntary concessional contributions (for example by salary sacrificing) or non-concessional contributions (voluntary after-tax contributions) of $15,000 a year within existing caps, up to a total of $30,000. Mandated employer contributions cannot be withdrawn under this scheme, it is only voluntary contributions made from 1 July 2017 that can be withdrawn.

  1. When you Die

Superannuation is not an asset of your Estate, so your superannuation is provided to your eligible beneficiaries – your spouse (de facto), children or a financial dependant – by the fund trustee.

Putting in place a binding death nomination, however, will direct your Superannuation to whoever you nominate, as long as they are an eligible beneficiary. If you have nominations in place, it is essential that you keep these current. Death benefits are normally paid as a lump sum but in some circumstances can be paid as an income stream.

Just be aware that with the $1.6 million transfer balance cap in place, if your Superannuation is paid as a death benefit pension to your nominated beneficiary, this could tip them over the cap. It’s a good idea to get estate planning advice to manage it correctly.

Divorce and Super

The Family Law Legislation Amendment (Superannuation) Act 2001 allows Superannuation to be split during a divorce either by agreement or by court order.

Before making a Superannuation agreement, the parties must receive separate and independent legal advice. The agreement must be in writing and must be endorsed by a qualified legal practitioner. Where the Superannuation is split by order of the family court, the court decides on how the fund is split.

Essentially, the amount of split Super is rolled into the other parties Superannuation fund. The same rules apply to accessing Superannuation, with access not granted until you turn 65 or reach perseveration age. If you and your spouse have a SMSF, you need to continue to manage the fund. Relationship breakdown does not suspend your obligations as trustee.

What happens if you contributed too much?

If you contributed too much Superannuation to your fund, you cannot simply withdraw the amount. If you breached your contribution caps, you can apply to withdraw the amount above your cap from the fund. The excess amount is treated as personal assessable income and taxed at your marginal tax rate plus an excess concessional contributions charge. Withdrawal of the excess amounts should not occur until the ATO provides you with a release authority that then needs to be given to the Superannuation fund.

If you did not breach your contribution limit but simply overcommitted to Superannuation, you cannot simply withdraw the amount.

Using SMSF Assets and Funds

In general, the assets of a SMSF cannot be used for the personal use or enjoyment of the fund members (or their associates such as friends or family). If the SMSF owns a holiday home, you cannot use it. If the fund has vintage cars, you cannot drive them. If your fund owns art, you cannot hang the art in your home or your office.

The exception to this is business real property. For example, assuming the trust deed allows for it, business owners can use their SMSF to purchase a building, then lease that building back to their business. Business real property is land and buildings used wholly and exclusively in a business.

So there you have it. Whilst your Super balance can look like a tempting pot to tap, in most cases you’ll have to wait your turn like everybody else…

If you’d like tailored Superannuation advice, or would simply like a helpful review of your current fund, we recommend you book a complimentary consultation with the Super experts at Odyssey Financial. Call them on 1300 362 489 or book your review online today.