Law Companion Ruling

LCR 2018/5

First home super saver scheme

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What this Ruling is about

1. This Ruling provides guidance on the operation of the First home super saver (FHSS) scheme.

2. All references are to Schedule 1 to the Taxation Administration Act 1953 (TAA), unless otherwise indicated.

Date of effect

2A. This Ruling applies from 1 July 2018.

2B. Changes made to this Ruling by addenda that issued since its original publication have been incorporated into this version of the Ruling. Refer to each addendum for details of how that addendum amended the Ruling, including the date of effect of the amendments.

2C. Where an addendum applies both before and after its date of issue, both the pre-addendum wording of the Ruling and the revised wording in the addendum apply for the overlapping periods of time. In these circumstances, entities can choose to rely on either version when applying the Ruling during that period of time.

Overview of the FHSS scheme

3. The FHSS scheme is designed to allow individuals who make voluntary contributions into the superannuation system on or after 1 July 2017, to withdraw those contributions (up to certain limits) and an amount of associated earnings for the purpose of purchasing their first home.

4. Eligible individuals can apply to access the FHSS scheme from 1 July 2018. A withdrawal under the FHSS scheme is made by application to the ATO, and the amount withdrawn under the FHSS scheme will attract concessional tax treatment.

Eligibility for the FHSS scheme

5. To be eligible for the FHSS scheme, you must:

•

never have held a stipulated property interest in Australia^[1] (unless specific financial hardship requirements are met)^[2]

•

be 18 years or older^[3], and

•

not have requested a release authority under the FHSS scheme previously.^[4]

6. A stipulated property interest in Australia includes:

•

a freehold interest in real property in Australia

•

a lease of land in Australia (including a renewal or extension of such a lease) that is for at least 50 years, and

(i)

at the time of the grant, renewal or extension of the lease, it was reasonable to expect that it would continue for at least 50 years, and

(ii)

the terms of the lease, renewal or extension as they apply to the lessee are substantially the same as those under which the lessor owned the land or held a lease of the land^[5]

•

a company title interest (within the meaning of Part X of the Income Tax Assessment Act 1936) (ITAA 1936) in land in Australia. This form of interest provides for the right to occupy land (or a building or part of a building erected on the land) that arises by virtue of holding shares in a company that owns the land or building.

7. There is no definition of 'freehold interest' in the FHSS scheme provisions. In another instance in the tax law^[5A], 'freehold interest' is defined to be limited to a legal interest in real property. In the absence of any evidence of an intent to limit the meaning of the term in the FHSS scheme provisions, the Commissioner's view is that a 'freehold interest' includes any type of interest in the relevant real property. This means that 'freehold interest' includes both legal and equitable interests in the relevant real property.

8. This interpretive approach is, in the Commissioner's view, consistent with the broader policy framework evidenced by the specific inclusion of situations where a person has acquired a lease of land within the FHSS scheme as a stipulated property interest.^[5B] Entering into a contract to acquire real property, including vacant land, may mean that the individual acquires an equitable interest in the real property even before settlement of the contract.

9. [Omitted.]

10. If you have held a stipulated property interest in Australia, the only circumstance in which you may request the Commissioner to make a FHSS determination is where you have suffered a financial hardship which will allow you to be eligible for the FHSS scheme subject to the other requirements referred to in paragraph 5 of this Ruling being satisfied.^[6] A hardship determination will be issued where the Commissioner is satisfied that:

•

you suffered a financial hardship that resulted in you ceasing to hold the stipulated property interest that you held at the time of the hardship, and

•

you have not held any other stipulated property interest since that time.^[7]

Eligible contributions

11. A contribution must be an 'eligible contribution' in order for it to be released under the FHSS scheme.^[8]

12. An eligible contribution is a contribution^[9] made in respect of you in a financial year and must be a concessional or non-concessional contribution that is either:

•

an employer contribution that is not a mandated employer contribution (within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations 1994), or

•

a member contribution that is made by you.^[10]

13. Some contributions are specifically excluded from being eligible contributions, including:

•

any part of a contribution to the extent it is required to be made because of the law of the Commonwealth or of a State or Territory, or the rules of the relevant superannuation fund^[11]

•

contributions made in respect of defined benefit interests^[12], and

•

contributions made to constitutionally protected funds.^[13]

14. [Omitted.]

15. Examples of contributions that are not eligible contributions include:

•

amounts that reduce an employer's potential liability for the superannuation guarantee charge

•

amounts required to be made by an employer under an industrial agreement (such as an enterprise agreement or an award)

•

member contributions made in respect of you by another person (such as a friend, spouse or other family member)

•

Government co-contributions

•

amounts transferred from a KiwiSaver scheme that are Australian-sourced amounts or returning New Zealand-sourced amounts^[13A]

•

applicable fund earnings from a foreign fund transfer that you elect to include in the receiving fund's assessable income

•

contributions that relate to structured settlements or orders for personal injuries

•

certain CGT-related payments to the extent they do not exceed your CGT cap amount when made

•

amounts paid due to a contributions splitting arrangement, and

•

amounts that are COVID-19 early release of superannuation re-contributions.^[13B]

15A. Where the rules of the relevant superannuation fund require a member to make either a concessional or non-concessional contribution within a particular range (for example, 1% to 5% of the member's salary), only the proportion of the concessional or non-concessional contribution that equals the 'minimum' contribution amount is excluded from being an eligible contribution. For example, where a member is required under the rules of the superannuation fund to make a contribution between 1% to 5% of the member's salary, and the member contributes 5%, an amount equal to 1% of the salary is excluded from being an eligible contribution and the remaining amount of the contribution (4%) is an eligible contribution under the FHSS scheme.

16. Where you have exceeded either your concessional contributions cap or your non-concessional contributions cap, the amount of the excess contribution is not eligible to be released under the FHSS scheme. Ordering rules apply to ensure that an excess concessional contribution for a financial year is first applied against an 'ineligible' concessional contribution with any excess reducing the amount of an 'eligible' concessional contribution for that financial year. Similarly, an excess non-concessional contribution for a financial year is first applied against an 'ineligible' non-concessional contribution with any excess reducing the amount of an 'eligible' non-concessional contribution for that financial year.^[14] For the purposes of the FHSS scheme, an excess concessional contribution is not treated as a non-concessional contribution.^[15]

Withdrawals under the FHSS scheme

17. Where you are eligible to withdraw an amount from your superannuation account under the FHSS scheme, you can apply to the ATO in the approved form for the ATO to make a FHSS determination.^[16]

18. The FHSS determination^[17] sets out the maximum amount that can be released under the FHSS scheme to you (the FHSS maximum release amount).^[18] This amount comprises your FHSS releasable contributions amount and associated earnings calculated by reference to those contributions. The FHSS releasable contributions amount is the sum of:

•

eligible non-concessional contributions you made on or after 1 July 2017, and

•

85% of eligible concessional contributions you made on or after 1 July 2017.^[19]

19. When the ATO issues the FHSS determination, you can request the ATO issue a release authority to a superannuation provider for the release of an amount up to the maximum amount set out in the determination from superannuation interests held by the superannuation provider.^[20]

20. The ATO may amend or revoke a FHSS determination at any time before a release authority is issued to a superannuation provider.^[21]

21. You can withdraw a maximum amount of $15,000 of eligible contributions made in a particular financial year, to a total of $30,000 of contributions across all years where a determination is requested on or before 30 June 2022 or $50,000 where a determination is requested on 1 July 2022 or later.^[22] Whilst the full amount of eligible concessional and non-concessional contributions are counted towards these limits, the amount that is able to be released to you depends on the type of contributions that have been made. The full amount of eligible non-concessional contributions can be released. However, only 85% of the eligible concessional contributions are releasable. For example, if you contribute $20,000 of eligible concessional contributions in a financial year, you only have $12,750 of FHSS releasable concessional contributions (85% of $15,000). You can also withdraw associated earnings in respect of each of these contributions.^[23] The associated earnings are not counted towards the eligible contribution limits.

22. An amount is included in your assessable income (assessable FHSS released amount) for the year in which you request the ATO to issue a release authority.^[24] Your assessable FHSS released amount includes the eligible concessional contributions and the associated earnings set out in the FHSS determination.^[25] However, this amount is reduced if you requested that a lesser amount be released under the release authority, or a lesser amount is released from your superannuation provider than you requested. In this situation, the amount is reduced by the difference between the eligible concessional contributions and the associated earnings set out in the FHSS determination and the amounts that have been released under a release authority.^[26]

23. The assessable FHSS released amount is included in your assessable income in the year in which you request the ATO to issue a release authority even if the amount is released from the superannuation provider in the following income year.

24. You are entitled to a non-refundable tax offset that is equal to 30% of the assessable FHSS released amount in the income year in which you request the release authority.^[27]

25. The amount released by the superannuation fund will be paid to the ATO. The Commissioner will withhold a pay as you go (PAYG) amount from the assessable FHSS released amount before releasing the balance amount to you. This is to assist in meeting any increased tax burden that you face as a result of having the assessable FHSS released amount included in your assessable income for the financial year you requested the release under the FHSS scheme. The balance after withholding may also be offset against Commonwealth debts, such as those relating to taxation liabilities, Centrelink amounts and child support obligations.^[27A] Any remaining amount left over after offsetting will be paid into your nominated account.

Obligations following the request for release of an amount under the FHSS scheme

26. The FHSS scheme broadly requires the released amount to be used to purchase your first home. Therefore, the following conditions must be met under the scheme^[28]:

•

you receive a FHSS determination and you make a valid request for the release of an amount of superannuation in relation to that determination.^[28A] This must be your first release request

•

you enter into a contract to purchase or construct a CGT asset that is a residential premises^[29], located in Australia, within the period beginning 14 days before the day you make the valid request for release, and ending 12 months after the day you make the valid request for release (or a further period allowed by the ATO up to a maximum of 12 extra months)^[29A]

•

the price for the purchase or construction of the premises is at least equal to the total amount to be released that is stated in the valid request for release

•

you have occupied the premises, or intend to occupy the premises as soon as practicable

•

you intend to occupy the premises for at least six months of the first 12 months after it is practicable to occupy the premises. Determining when it is 'practicable' to occupy the premises will depend on the facts and circumstances of a particular case. However, it is necessary for your intention to occupy the premises for the requisite period of time to be genuine^[30], and

•

you notify the ATO in the approved form of the matters outlined above within 28 days (or further period allowed by the ATO) after you enter into the contract to purchase or construct the residential premises, which could be prior to your settlement.

27. The Commissioner may extend the period for entering into a contract by up to 12 months.^[31] Where the Commissioner provides an extension, this means that you will have up to 24 months from the day after you make a valid request for release to enter a contract to purchase a residential premises.

28. Where you do not meet the conditions in paragraph 26 of this Ruling following the valid request for release of an amount under the FHSS scheme, you will be subject to FHSS tax^[32] unless:

•

you make non-concessional contributions within the period beginning 14 days before the day you make the valid request for release, ending 12 months after the day you make the valid request for release (or further period allowed by the ATO up to a maximum of 12 extra months)^[32A]

•

the amount of the non-concessional contributions is at least equal to your assessable FHSS released amount less any PAYG amount withheld from the assessable FHSS released amount, and

•

you notify the ATO in the approved form that you made the non-concessional contributions within the period beginning 14 days before the day you make the valid request for release, ending 12 months after the day you make the valid request for release (or further period allowed by the ATO).^[33]

FHSS tax

29. Where you do not notify the ATO in the approved form that you have entered into a contract to purchase or construct residential premises located in Australia, or made the required non-concessional contributions within the stipulated time periods^[33A], you will be subject to FHSS tax at a rate of 20% of the assessable FHSS released amount.^[34] Your assessed FHSS tax is due and payable at the end of 21 days after the Commissioner gives you notice of the assessment of the amount of the FHSS tax.^[35]

30. Where the requirements referred to in paragraph 26 of this Ruling are not satisfied you must make non-concessional contributions as referred to in paragraph 28 of this Ruling in order to avoid being subject to the FHSS tax.

Ordering rule for release of contributions

31. When you make eligible contributions to a superannuation provider, the order and type of the contributions can make a difference to the amount that can ultimately be released under the FHSS scheme.

32. Subsections 138-30(2) and (3) set out specific rules governing which eligible contributions will be included in your FHSS releasable contributions amount. The rules are based on when a contribution was made and whether it is a concessional or non-concessional contribution.

33. Your contributions are counted towards your release amount in the following order:

•

contributions are counted in the order in which they are made to your superannuation fund (from earliest to latest)^[36]

•

if an eligible concessional contribution and an eligible non-concessional contribution are made in respect of you to your superannuation fund at the same time (for example in the same payroll process), your non-concessional contributions are taken to be made first^[37], and

•

where you personally make both eligible non-concessional and eligible concessional contributions in a year, for example because you claim a deduction for only part of the contributions you make in that year, the resulting eligible non-concessional contributions are taken to be made before the eligible concessional contribution.^[38]

Example 1 - ordering rule - contributions across multiple years

34. William makes regular $1,000 contributions on the first day of each month during the 2017-18, 2018-19 and 2019-20 financial years. William does not claim a tax deduction in respect of any of the contributions. Accordingly, the contributions are non-concessional contributions.

35. In July 2020, William applies for a FHSS determination.

36. The contributions are all eligible contributions under the FHSS scheme. As they are all non-concessional contributions, 100% of each contribution is eligible to be released under the FHSS scheme.

37. However, William could only release a maximum of $30,000 of his contributions under the FHSS scheme as his FHSS determination was requested before 1 July 2022. The FHSS determination will count the contributions in the order in which they were made as follows:

•

$12,000 from the 2017-18 financial year (12 contributions from 1 July 2017 to 1 June 2018)

•

$12,000 from the 2018-19 financial year (12 contributions from 1 July 2018 to 1 June 2019) and

•

$6,000 from the 2019-20 financial year (6 contributions from 1 July 2019 to 1 December 2019).

38. William's FHSS determination will also include associated earnings in respect of each of these contributions determined under section 138-40.

Example 2 - ordering rule - simultaneous contributions

39. Nicholas works for a company that pays their employees on the first day of each month.

40. Nicholas has an effective salary sacrifice agreement with the employer. The employer also makes voluntary after-tax contributions on behalf of Nicholas as part of the same payroll process. He has an agreement with his employer to make the following voluntary contributions on his behalf during the 2018-19, 2019-20, 2020-21 and 2021-22 financial years:

•

$750 per month under the salary sacrifice arrangement, and

•

$550 per month as an after-tax superannuation contribution.

41. In total, Nicholas has $9,000 a year in concessional contributions (those made under the salary sacrifice arrangement) and $6,600 in non-concessional contributions (those made after-tax) made on his behalf in each financial year.

42. In July 2022, Nicholas applies for a FHSS determination.

43. Subject to the restrictions set out in paragraph 44 of this Ruling, the FHSS releasable contributions includes 85% of the concessional contributions (under the salary sacrifice arrangement) and 100% of the non-concessional contributions.

44. Nicholas can have a maximum of $50,000 of eligible contributions made across all years under the FHSS scheme based on his determination request date, restricted to $15,000 per year. The FHSS determination will count the contributions in the order in which they were made, as follows:

•

A total of $15,000 of the voluntary contributions he made for the 2018-19 financial year. All of the contributions for July 2018 to May 2019 will be counted ($6,050 of non-concessional contributions and $8,250 concessional contributions) but this only leaves $700 of the annual limit remaining so the simultaneous contribution rule will apply for the June contributions. The full non-concessional amount of $550 will be included and $150 of the concessional contribution will also be included. Therefore, the total FHSS releasable contributions amount for the 2018-19 financial year will be $6,600 of non-concessional contributions and $7,140 of concessional contributions (85% of $8,400).

•

The same situation occurs for the 2019-20 and 2020-21 financial years with a capped total of $15,000 voluntary contributions being eligible. The releasable contributions will be $6,600 of non-concessional contributions and $7,140 of concessional contributions (85% of $8,400).

•

All of the voluntary contributions he made for July 2021 to September 2021 will be counted ($1,650 of non-concessional contributions and $2,250 of concessional contributions will count towards the limit). However, for October only $1,100 of further contributions can be released until he reaches his $50,000 limit. We apply the simultaneous contribution rule again. For the contributions made in October the full non-concessional amount of $550 will be included and $550 of the concessional contributions for that month. Therefore, for the 2021-22 financial year the releasable contributions amount will be $2,200 of non-concessional contributions and $2,380 of concessional contributions (85% × $2,800).

45. Nicholas' FHSS determination will include the total FHSS releasable contributions amount of $45,800 plus associated earnings in respect of each of these contributions determined under section 138-40.

Example 3 - ordering rule - deduction for personal superannuation contributions

46. Bianca makes regular $2,000 contributions to her super fund on the first day of each month during the 2017-18, 2018-19, 2019-20 and 2020-21 financial years.

47. For the 2017-18 and 2020-21 financial years, Bianca does not lodge a notice of intent to claim a deduction with her fund in relation to the superannuation contributions, and does not claim a tax deduction. This means all of the $24,000 contributions in each of those years are non-concessional contributions.

48. In September 2019 Bianca lodges a notice of intent to claim $10,000 as a deduction with respect of her personal contributions made in the 2018-19 financial year. She claims the tax deduction in her tax return lodged in October 2019. This will mean that for the 2018-19 year she made $10,000 of concessional contributions and $14,000 of non-concessional contributions.

48A. In August 2020, Bianca again lodges a notice of intent to claim $10,000 as a deduction for the contributions she made in the 2019-20 financial year. She claims the tax deduction in her tax return lodged in October 2020. This will mean that for the 2019-20 year she made $10,000 of concessional contributions and $14,000 of non-concessional contributions.

49. In July 2022, Bianca applies for a FHSS determination. As the determination was requested after 1 July 2022, the maximum total limit of $50,000 applies.

50. Subject to the restrictions set out in paragraph 51 of this Ruling, the FHSS releasable contributions includes 85% of the concessional contributions and 100% of the non-concessional contributions made by Bianca.

51. However, Bianca can only receive a maximum of $15,000 of the contributions in one financial year and $50,000 of the contributions in total. The FHSS determination will show Bianca is eligible to receive:

•

the maximum yearly limit of $15,000 of her voluntary member contributions made for the 2017-18 financial year (non-concessional contributions)

•

the maximum yearly limit of $15,000 of her voluntary member contributions made for the 2018-19 and 2019-20 financial years. The ordering rule for personal deductions will apply for each of these years resulting in the full $14,000 of non-concessional contributions and $850 of the concessional contributions (85% of $1,000) being eligible to be released for each of those years

•

$5,000 of her voluntary member contributions made for the 2020-21 financial year (non-concessional contributions) as she has now reached the $50,000 total contributions limit.

52. Bianca's FHSS determination will therefore include a total FHSS releasable contributions amount of $49,700 plus the associated earnings in respect of each of these contributions determined under section 138-40.

Commissioner of Taxation
15 August 2018

© AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA

You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).

Previously released in draft format as LCR 2018/D5

References

Business Line:  SEO

Related Rulings/Determinations:

GSTR 2012/5
TR 2010/1

Legislative References:
TAA 1953 Part IIB Div 3
TAA 1953 Div 131
TAA 1953 131-10(1)
TAA 1953 131-10(1)(a)
TAA 1953 131-65
TAA 1953 138-10(1)
TAA 1953 138-10(2)
TAA 1953 138-10(2)(a)
TAA 1953 138-10(2)(a)(ii)
TAA 1953 138-10(2A)
TAA 1953 138-10(2B)
TAA 1953 138-10(2)(b)
TAA 1953 138-10(2)(c)
TAA 1953 138-10(4)
TAA 1953 138-25
TAA 1953 138-30(1)
TAA 1953 138-30(2)
TAA 1953 138-30(3)
TAA 1953 138-30(3)(a)
TAA 1953 138-30(3)(b)
TAA 1953 138-35
TAA 1953 138-35(2)
TAA 1953 138-35(2)(b)
TAA 1953 138-35(2)(c)
TAA 1953 138-35(2)(d)
TAA 1953 138-35(3)
TAA 1953 138-35(4)
TAA 1953 138-35(5)
TAA 1953 138-40 Sch 1
GST Act 195-1
ITAA 1936 Pt X
ITAA 1997 104-115(1)(b)
ITAA 1997 290-169
ITAA 1997 292-90(2)(c)(iiib)
ITAA 1997 313-20(1)
ITAA 1997 313-20(2)
ITAA 1997 313-25
ITAA 1997 313-35
ITAA 1997 313-35(2)
ITAA 1997 313-40
ITAA 1997 313-50
ITAA 1997 313-60
ITAA 1997 313-65
First Home Super Saver Tax Act 2017 3
First Home Super Saver Tax Act 2017 4
Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 1) Act 2017
Superannuation Industry (Supervision) Regulations 1994
Taxation Administration Regulations 2017
Treasury Laws Amendment (2019 Measures No. 1) Act 2019
Treasury Laws Amendment (Enhancing Superannuation Outcomes For Australians and Helping Australian Businesses Invest) Act 2022 Sch 2 1
Register of Foreign Ownership of Water or Agricultural Land Act 2015 4

Other References:
Explanatory Memorandum to the Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures No. 1) Bill 2017
First Home Super Saver Scheme