How does Labor's new super tax work and why is it controversial?

Australia Broadcast Center

2 days ago

More than two years after it was announced, Labor's super tax is again in the headlines.
Nothing has changed, and in fact nothing has happened. The government's plan to collect more tax from a small number of people with multi-million-dollar super balances did not progress through the parliament in the last term and has not become law.
But it is still Labor policy, and a new-look parliament has raised the prospect that the tax could pass if a deal can be struck with the Greens or the Coalition.
Alarmed by that prospect, opponents of the new tax have renewed their criticism of it.
What is Labor's super tax proposal?
Labor wants people with super balances over $3 million to pay more tax.
Your super is usually taxed less than regular income like your wage or salary.
That's because the system exists to encourage — and to some extent require — you to save more for your own retirement.
In simplified terms: most money that goes into your super is taxed at 15 per cent, and so is money earned by your super fund (e.g. interest or dividends). Super is not taxed again when you access it in your retirement.
Critics say these arrangements are too generous and allow people to use super funds to accumulate wealth at lower rates of tax than they otherwise could, by piling property and other assets into their super funds far beyond what they need for retirement.
Super tax discounts cost the federal budget more than $50 billion in lost revenue each year, more than half of this going to the top fifth of earners.
To address this, Labor proposes a 30 per cent tax rate instead of 15 per cent on the earnings of those whose super balances are above $3 million.
This rate would only apply to the proportion of earnings that are above $3 million.
So for example, someone with $4 million in super who then earns $500,000 in a year would pay roughly $25,000 in extra tax, or five per cent extra (see box for more detail).
Today, around 80,000 Australians have enough super to be affected, most of them above retirement age.
(This is an adapted version of an example in the explanatory memorandum to the bill)
The example person has a super balance of $4 million at the beginning of the year and $4.5 million at the end of the year, a $500,000 increase.
Of that increase, $25,000 is a new contribution made by the person or their employer, which was taxed at 15 per cent.
Subtracting that amount, the person has $475,000 in earnings.
These earnings are already subject to the existing 15 per cent earnings tax.
But because the person has a super balance above $3 million, they will also pay the new additional 15 per cent tax.
This does not apply to full amount — it is scaled by the fraction of the person's super balance that is above the threshold.
In this case, one third of the person's $4.5 million super balance is above $3 million. That means they pay the extra 15 per cent tax on one third of $475,000 — a tax of $23,750.
Why isn't Labor's super tax proposal indexed?
One criticism of Labor's policy is that the $3 million threshold is not adjusted for inflation, so it will affect more than 80,000 people in the future.
By 2040, a $3 million threshold would be worth roughly $2 million in today's dollars.
That would still cover only a small proportion of people — recent data suggests only 1 in every 200 super fund members has a balance of at least $2 million, and that is more than three times what industry body ASFA says is needed for a comfortable retirement.
But if the threshold were not adjusted by a future government, the number of people paying the 30 per cent rate on some of their super earnings would keep growing.
Why does Labor's super tax proposal apply to unrealised gains?
A second criticism is that Labor's policy would apply not just to "realised" earnings like dividends or interest income as is now the case, but also to "unrealised" increases in the value of assets like property.
If a house, a painting or a farm is held in someone's self-managed super fund and it becomes more valuable, they would today only pay tax when that value is realised upon sale, but under the new arrangements that would change for those with over $3 million.
So the person in the example above, who has $4 million in super and then earns $500,000, would have to pay $25,000 in tax even if the earnings come from a house or some other asset that is not liquid.
The super industry says it is easier for them to implement the tax this way. Large super funds "pool" the money of their members and invest it as one, earning dividends and interest at the fund level.
Under current arrangements, they pay 15 per cent tax on behalf of all their members whenever they realised a gain, which they do very frequently.
But they say applying a higher rate to a small proportion of members every time would be complicated, whereas applying the new rate once annually based on members' total fund balances is easy.
Apart from that technical reason, Labor also argues it is fair for the small minority of people who put millions' worth of assets into their self-managed super funds for the purpose of managing their estates to pay more tax.
One concern from critics is that people will be unable to pay the tax they owe if their assets are not liquid.
Very few people are likely to be in that position, given that the average person with more than $3 million in super has an annual income of $381,000 according to ATO data.
But critics also argue that any tax on unrealised gains, even on those who can likely afford to pay it, could set a precedent for broader wealth taxation.
This is not unprecedented. Land taxes, including council rates, are applied to unrealised changes in value, with ratepayers typically able to defer payment if they lack cashflow.
While economists disagree on this specific proposal and on the merits of taxing unrealised gains, some argue it is more efficient than taxing only when an asset is sold, since this encourages people to hold onto their assets to avoid the tax.
For this reason, economists tend to favour a low and consistent tax across all types of assets, which Australia's tax system does not deliver with or without this proposal.

Does Labor's super tax have different rules for politicians?
There has also been some suggestion that this proposal would treat politicians with pensions differently.
Politicians elected prior to 2004 (when the scheme was axed) have "defined benefit" retirement plans where they receive a fixed amount each year, rather than the "defined contribution" retirement funds most people have where their retirement income depends on how much they have contributed over their working lives.
The defined benefit includes Anthony Albanese and Peter Dutton, and federal judges and some others who have similar arrangements.
Because defined benefits programs do not have "earnings" in the same straightforward way as regular super funds, it is not straightforward to apply this new tax, but Labor has indicated that special rules will be determined in regulation for these programs and that they will not be exempted.
Will Labor be able to pass its super tax changes?
In the new Senate, Labor can pass legislation with the support of either the Coalition or the Greens, without needing other crossbenchers.
The Coalition is staunchly opposed to the bill in its current form, but shadow treasurer Ted O'Brien has indicated openness to negotiating with Labor if it adopts indexation of the threshold and does not apply the tax to unrealised gains.
The Greens have called for a lower threshold of $2 million, but with indexation.