Labor's franking policy is a ticking bomb for all super funds

If you are in an APRA regulated fund which has no tax liability and therefore can't make use of franking credits under the proposed Labor changes, you're in the wrong fund!

The present legislation discriminates against SFRs who are in APRA regulated funds as they can't claim the bogus franking credit the SMSFs can.

From my simple perspective the proposed confiscation of franking credits is faulty because of the fact that markets and returns are unknown and volatile, wouldn't it be "fairer"to let excess franking credits be accumulated for say five years to smooth out the inevitable market fluctuations, i.e. carried over credits accumulated like carried over losses.With Labours well documented appetite for "other people's money OPM"I fear reintroduction of double taxation is the ultimate goal. On millennials whining about retirees getting a tax break they didn't have 20% to 25% interest rates on their homes and business, retirees didn't get paid to have babies or get government sponsored babysitting.

Um. The median Sydney house price was 68,000 in 1980 and it's now 815,000. Who pockets that increase? Yeah, so sorry you have 20% interest payment on your house in the 80's.

Millennials are getting paid to have babies because funding your retirement has made it too expensive to have them...

Andrew, you may need to visit average wages during the time.

Whilst absolutely no fan of the current government, I am at a loss to the ALP proposed legislation, mainly at the prospect of catching out those investors at the low end of the spectrum ( just above the pension level, and potentially leaving them worse off than the pension) whilst allowing the very wealthy to earn income to write off against their credits.
Much prefer a simple tax on all income over a certain accepted comfortable retirement level .

I have read the cuffelinks newsletter each week in anticipation over the last few years. Please don’t let the labor franking policy articles that have had an inordianate percentage of your website content turn you into a lobby group advocate sympathiser.

Thanks, Oliver, appreciate your long-term readership. On 'lobby group advocate sympathiser', we're publishing content relevant to our readers and they are certainly interested in the franking debate. I thought Don Hamson's latest was a valuable addition to the debate. G

For people thinking of moving wealth from companies to (say) property trusts to get some unfranked income, the Labor Party plans to do you over as well. The Labor Party plans to apply a minimum tax rate of 30% to income distributed from trusts which won't be refundable from the beneficiary's return.

"this proposal may represent a ticking time bomb for the whole superannuation industry"

Indeed it's like a Ponzi scheme for funds that currently have lots of contributing members but few pension members. Like a Ponzi scheme, it relies on lots of contributions from newer members to provide value for the franking credits of old and especially retired members and like a Ponzi scheme this is not going to end well.

The return of Franking Credits was to compensate people for the 10% devaluation of their fund which occurred when GST was introduced and the money they had saved bought 10% less.

Copy of letter sent to Chris Bowen:

I note first that the exemption of pensioners means that those of us without a government pensioner in the household prior to march 2018 will lose ALL franking credits, but that pensoners with as little as $1 will secure ALL franking credits

Q1 is this correct?

This means of course that many of those of us who painfully saved a bit above the 800k limit will be worse off than those who did not…I for example had to earn all mine after the age of 55 due to unemployment in Australia for older people(I got a job in Uk after a number of years, and commuter there and saved every penny)

Q2 Next that if we secure some employment or investment income outside the SMSF that puts us potentially into taxable income territory, will we only get the tax payable credited against the taxable income? or will we get the full franking credits then? even if not fully covered by the tax otherwise paid?

This has direct implication on our actions immediately, so please advise

Q3 currently franking credits are to be declared as ‘income” as they should be—but if we do not qualify under your new regimen, will the franking credits still be deemed to be ‘income’ although we get none of them?

Q4 further to this, if the tax we are due to pay is less than the franking credits we are owed, what level of the unrepaid franking credits will be deemed as ‘income’ (which would further take funds away from SMSFs still further

As you can see, the answers have a substantial and very negative aspect for all Directors of SMSFs as we are bound to act in best interest of the members, which means switching out of Australian shares

I have as a precaution we have already begun disinvesting in Australia as the ROI without the franking credits we have paid for drops well below tolerable test rates of return.

Q5 Is his what you intend to occur? we are bound by probity and director duties to act in this direction: we have no choice.

Please provide an impact analysis of your proposed policy,as no doubt the Parliamentary Library has already done for you.

SMSFs with between 800 and 1.5m would be be reduced to income levels below pensioners with just under the benchmark 800k to get a pension, yet have saved hard to fund their super... This does not seem to be fair in any way . Let alone the other issues above.


This is not the ALP I thought that I knew

Yours faithfully

Marc

I am in a SMSF pension because I had issues with my managed fund, paying an advisor 0.3% of my balance (for no real advice) and 0.4% of my balance to the company to 'monitor' my fund (mistakes were made but corrected - I believe). My advisor told me that I was his only customer who took a real interest in their portfolio. We spoke fortnightly to monthly often at his instigation - a pattern long established when I received meetings free of charge (until I signed on the dotted line). In 6 months I received advice to avoid purchasing equities on two occasions and told my advisor what to purchase on all other occasions - our talks were more about golf, fishing, engineering and occurred at the local hotel, where we went 'shout for shout'. I received 'good value for my money', he responded when I asked him. Now I pay circa $2000 in total for the same level of advice and monitoring - A SIMPLE ECANOMIC DECISION! I am sure that ALL of the contributors make the same choice regularly and cannot criticise this choice.
I have contributed to this debate before and make no apologies to anyone for my stance on the matter. It was law that I get my franking credits returned when I retired, just as the negative gearing was - I still cannot see how one can have a grandfathering clause and the other not. Maybe the people making the rules have negative gearing properties?? They are clearly not retired.
I believe that the law says that I don't pay any tax because I am old. Franking credits are the realm of the ATO held and distributed by them. So this is clearly a tax that I am paying if Labor invoke this idea. BUT I pay no tax 'by the current law'. HOW IS THIS VALID OR FAIR? The no tax rule needs to be revoked before anything else can happen.
Currently the only 'government money that I can access is Medicare - the taxation collected for Medicare is ~ 2%, so if I pay this amount I am not costing Australia anything and I am still paying tax as GST.
Two options are possible, as I see it -

I am looked at as a person earning an income from my investments and have associated franking credits, administered by the ATO. I am entitled to the same exemptions as all other tax payers, the tax free threshold, the tax rates according to my earnings and return of tax in excess of my earnings - franking credits above my tax obligation.

I am a superannuant and according to superannuation laws, earnings are taxed at 15%. Labor wishes to have pension holders exempt, so people earning less than the maximum amount of money, which means no pension pay no tax and receive their franking credits. All other retirees pay no tax on this same amount of money and then consistent with current taxation of incomes, a 5%, 10% and 15% tax rate is put on others according to their earnings. BUT no deductions are allowed as typically those with the largest earnings should have the largest balances.

I was talking to a lady who works for 'an accounting firm dealing with trust funds' and she told me that 'they were busy in June as monetary movements had to be finalised by June 30th to fit taxation requirements. Some of these trusts pay tens of thousands of dollars in fees, so you can imagine how much tax they are saving.' I have no reason to doubt her and no ability to check this BUT I am sure the ATO could look into this and help the Government to modify the trust laws to place a maximum benefit they can receive - it seems fair and fits in with the limit on superannuation balances in pension phase.
Fortune favours the wealthy, not the brave.

I have sent a longer version of this to Chris Bowen and I am hoping for a response before the end of October!??!

What we need is for a few knowledgeable journalists to ask the tough questions to Shorten about this new "tax" and make it into a J Hewson GST "cake" moment for Shorten.


Only then will this issue receive its proper investigation and maybe educate the millennials who believe this to be a baby boomer tax rort. ( Whilst the millenials collect free childcare...sarc )

But it is a baby-boomer tax rort my dear Shylock. Dividend imputation was designed to avoid double taxation. In other words, if company tax is paid at 30% anyone on a higher MTR than this would pay the difference. It was a sensible and rational policy in it's original form. Then Costello came along and changed the system to allow for refund of excess franking credits, as a sop to the grey vote. This was also during a time when there was a spike in national income so there was plenty of scope for this type of Howard/Costello largess along with things like negative gearing and 50% discounts to CGT (which have played role in stoking a housing bubble). Even those around the world with dividend imputation (4 countries in total) don't include this latter feature. It's costing the budget billions and has also distorted investor decision-making, magnifying home bias and reduced diversification, to the detriment of portfolio returns over last 10 yrs almost. Companies are also incentivised to pay everything out as dividends vs re-investing earnings to compound over time, which is perhaps why our stock market when no-where for 10 yrs..

Sounds to me like you would like to get someone up there who is going to just say what you want them to say. Perhaps I could have a role on the panel. Don't think of it as a new tax. Think of it as retirees allowing companies to pay corporate tax on their profit streams so it;s not just the wage slaves payign for hospitals, schools, defence and roads.

Well said, and accurate! Remember the income from the mining boom was only every temporary, yet the tax decisions made in 1999 and 2000 assumed the mining boom would be permanent. Mining booms are always temporary (e.g the early-mid 1960's and mid-late 1970's), and always result in mining busts, so any prudent govenment would save the income from the boom and use it when the inevitable mining bust occurs and tax revenues drop, and not make silly decisions such as introducing CGT discounts for holding assets short term or refunding franking credits. Refundable franking credits have been a blight on our economy and caused great harm to our companies, causing them to pay out too much of their profits in dividends rather than spend on the growth of the business (such as increasing spending on R&D).

It is perhaps not surprising that Australia's most successful company CSL, has not included any franking with its dividends for a decade. Where are the rest of the CSL's ? They don't exist because Australian companies are too concerned with paying high fully franked dividends rather than investing in growing their businesses..

Peter,

One inference that could be drawn from your last comment is that Australian companies can choose whether to pay franked or unfranked dividends. I beg to differ. The level of franking is beyond the control of the company. It is mandated by legislation. The ability to pay franked dividends is a function of the amount of Australian tax the company has paid on its earnings. CSL earnings are predominantly sourced from offshore and taxed in these jurisdictions. As such, it is limited in its ability to pay franked dividends. On the other hand, CBA sources its income predominantly onshore and as a result pays Australian tax. Hence, if it pays a dividend, it must be franked to the extent of its franking surplus.

I have been concerned since the announcement of this policy - i am not a "wealthy" pensioner but have an SMSF and depend on the franking credits to maintain the balance of the account each year - now a widow my husband and i worked hard and saved to fund our retirement with no governmental support required - ethically we preferred to be independent if possible. My concern is how will this effect the australian share market? Many of us choose to invest in wholly owned Australian Companies to access the franking credits. Lose of those will surely affect investment choices now and the Australian Share Market and Australian Companies could suffer. And now ALP wants to give 3 year olds 15 hours free kinder which will not be means tested - taking from the elderly independents, who worked hard and contributed their tax as PAYE all their lives - hip pocket politics at its worst

Hi Jackie, agree, I worked with some very wealthy people at the time of the $3,000 baby bonus, non means tested. To simply give these people $3,000 to have a baby to be looked after by nannies and au pairs and picked up from kindy in the Porsche was ridiculous. They thought so too.

Ticking time bomb - so you think this policy will blow up "the whole superannuation industry"? Hyperbole much?

I understand Funds are required to track returns for each member, and not allocate one member’s funds to a different member. So if one member is in accumulation mode and due to pay contributions tax, and another member is in pension mode with excess franking credits. Is it legal for the fund to “transfer” the franking credits from pension members to accumulation members? Has the accumulation member received an advantage at the expense of the other member, that they were not entitled to? Has the fund acted in the best interest of the pension member, so should they rearrange the investments to (for example) more property which do not pay franking credits?

You understand wrong, a large public offer fund or industry fund does a global return for all members. Fund income is contributions/ investment income/ realised gains, franking credit value. Its expenses, insurance premiums are deducted from this number and taxable income for fund is arrived at.

This article from Australian Super's Tom Garcia https://cuffelinks.com.au/direct-investment-options-deal-franking-credits/ covers how franking credits are managed by normal super funds, which will help answer your question.

The article is helpful but does not go to the principle of how to credit individual portfolios with the benefits of franking credits. Do all credits go to member with dividends or does member with tax liability get to share some of the credits?

I was surprised to read that franking credits can be used to 'pay' the contributions tax on incoming money. Anything i have read says that concessional contributions get 15% deducted on the way in, which the naive reader would imagine was implemented by the government getting a payment of the tax amount.

Without having tried to work it out, perhaps in net terms it doesn't make any difference to the tax payable by the fund but i would have thought that on equity grounds everyone ought to pay the 'entrance fee' (ie contributions tax) 'direct' to the government and that the CGT, earnings tax, franking credits and any refund be allocated amongst the members. Is that in effect what actually happens due to detailed accounting for each member of their particular share of the pool and tax liabilities?

This tax is very much like the illogical tax on tampons which the current government has announced it will remove. The Labor Party is elected at the next election intends taxing those senior citizens who have worked hard, contributed to the community and endeavored to lessen the burden on the community by saving and investing, within their Self Managed Super Funds, in Australian stocks to continue to support Australian enterprises. There is no justification for the introduction, regardless of how hard the Labor party works to convince otherwise. It is a TAX on retirement.

This appears to be heavy on hyperbole and sensationalism and light on facts. The whole point of the original dividend imputation system introduced by Keating was to remove 'double taxation' so that taxpayers wouldn't pay tax at their MTR in addition to the tax already paid by the company at 30%. Then Costello came along and changed the system in search of the grey vote to allow excess franking credits to be refunded to 0% taxpayers at a substantial cost to the budget. ($4.6bn 2012-13). These 'çashbacks' were not part original design of the policy but were funded by a spike in national income during the mining boom years. Now this is over it has left us with a large permanent structural budget costs (see above). Dividend imputation is unusual in itself in that only 4 countries on earth do it. But none go and step further like we do with excess franking credits..

At the end of the day it about what is fair and sustainable. Costello should never have changed the dividend imputation rules in the first place, and should only have permitted investors to offset franking credits against tax that they have paid. This was the initial rationale behind dividend imputation – i.e. that tax gets paid on company profits, but not twice over when paid out as dividends.

I understand why those who will be affected are a little upset. This is rational behaviour. But when it turns into squealing about a high-taxing Govt, looking to 'tax the rich' and 'raid retirement savings' in descends into self-serving propaganda driven by vested interests.

Hi Dane
I could debate this policy with you for ever ,as one who has recently retired and am relying on franking credits to top up our annual income which was law is a real blow for us to take them away.
Fay cat Bill was saying it isn't fair on the tax payer to support this and also as you have mentioned the only country to give credits.
If he wants to play that game why is it fair for tax payers to be paying all federal employees 15.8% super when the mandatory rate is 9.5% I have done my figures on that and it is just on 1.2 billion pa, also Australia is the only country in the world that has compulsory long service leave I would like to see the reaction of the people if they tried to change any of those. We have never received a helping hand from anyone paid all our taxes and now in retirement trying to get a little back.
There are people I have spoken to and are very seriously considering spending some off their money putting some under the bed and going on the $35500.00 pa pension plus a health card.

Paul

All I can do is to refer to my original article on this, which I believe addresses Dane's issues. https://cuffelinks.com.au/basics-franking-credit-refunds-fair/
The fact that many exemptions to the proposed removal of the refund (for charities, pensioners, etc) demonstrates clearly that the principal behind allowing tax-free investors to claim back imputation credits as a refund is accepted. The principal is not a rort, it's not a baby boomer tax grab or anything like it.
As I said in that article, why should someone who earns $15k a year from a private unlisted business - that is below the tax free threshold - be in a better position than someone whose $15k income is from a listed vehicle, but has tax withdrawn from it before they even get to see it?
If there are tax payers currently not paying tax who should be, then change their tax rate, but leave the imputation system alone. (I've written about that, too, suggesting that the $1.6 mn cap on super in pension mode deals sufficiently with the coverage of zero taxed retirees.)
And please, Dane and friends, stop using unnecessary, inaccurate emotive arguments that only sidetrack from the genuine policy considerations that need to be understood and on which decisions should be based!

Thank you once again Warren for wading into this issue and pointing out the fundamental basis and rationale behind the imputation system. I am continually surprised by how many people still believe and state as "fact" that the rationale is to avoid "double taxation", as opposed to ensuring people pay tax at their marginal rates. Unfortunately, I think you will be doing it until the cows come home, as there will always be people who just don't get it. Nevertheless, your comments on this matter over the last 6 mths are always welcome, and hopefully will continue to educate more and more people.

Warren,

I trust that you will be canvassing the thoughts you have shared with Cuffelinks readers in a submission to the Parliamentary Committee that is reviewing refundable franking credits.

Our superfund's share portfolio, which has one member in pension phase, is largely in BHP shares. With BHP planning a huge share buyback which will, as previously, consist of a low share purchase price and a massive fully franked special dividend payout, how likely is it that Labor, if it wins the next election, make their cancellation of franking credit refunds retrospective and thus make the BHP share buyback wholly unattractive?

To my knowledge, the only retrospective tax legislation was on Bottom of the Harbour schemes oh so many years ago. Is it likely to happen on franking credits?

Yes, as an adviser, a crucial question about recommending funds/platforms now becomes the proportion of accumulation members v pension members. This then plays into Best Interest on a proposal of who to use as a platform or whether you move from one cheaper platform across to a more expensive one, just because that fund has more accumulation members. This policy is so poorly thought through and the ALP is either a) completely unaware of the knock on implications (what I suspect) or b) are aware and, by stealth, are planning to steal more of an investors rightful credits over time as more members move to pension phase.

There can be situations where two members with identical portfolios, but in different platforms, can get different returns based on the platforms percentage of accumulation v pension members.

Unfortunately Paul, Chris Bowen has made this a mater of personal pride now by stating that Labor will not change the policy.

In my opinion no politician should be entitled to rule out revisiting proposed policies until they have been subject to apolitical expert review. Certainly no supposed representative of the people should be arrogant enough to dismiss voter concerns without a genuine attempt to understand the validity or otherwise of those concerns.

I can't decide if Mr Bowen understands the impacts of the policy but is driven by political motivations, or whether he genuinely doesn't understand the detail. I am with him, more or less, on most of Labor's other tax related proposals, but this one is just muddleheaded.

Either way, it reflects poorly on his professionalism and basic grasp of sound tax principles.

The arrogance to make this policy effectively retrospective (given the back dating of which SMSF's are exempt) from OPPOSITION is galling...

That is the key point - the "platform" you use should under no circumstances determine the outcome of identical portfolios - stupid, wrong and discriminates specifically agst SMSF's in Pension mode.

However what is really wrong here is the tax law - far easier for Bowen to change franking refunds than, in effect, say he is increasing tax on SMSF's. You might recall the old ALP policy at the last election was to tax all income over $75k pa at 15% - in so many ways cleaner and more honest