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The United States income tax treatment of Australian superannuation funds owned by US Persons paper

Published on 25 Aug 16 by NATIONAL DIVISION, THE TAX INSTITUTE

This paper covers:

  • current law and reason for suggested changes
  • superannuation guarantee scheme should be classified as a social security tax for U.S. tax purposes
  • treasury regulations promulgated under Sections 402 and 83 should be clarified to exempt the Australian superannuation funds
  • since Australian superannuation funds are the equivalent to a social security program they should not be analyzed as foreign employee trusts under U.S. tax law
  • several areas of U.S. tax law already exempt social insurance programs of foreign governments from tax and reporting obligations.

Author profiles

Roy Berg
Roy Berg JD, LLM, is Director, US Tax Law, and Barrister and Solicitor of Moodys Gartner Tax Law LLP and has more than 23 years of experience in cross-border tax matters, IRS controversy, estate planning and finance. He has been admitted to the Bar associations of the US Tax Court, California, Washington, and Alberta, Canada. Roy is a fellow with the American College of Trust and Estate Counsel (ACTEC) and a member of the US and Canadian Society of Trust and Estate Practitioners (STEP) and American Bar Association tax sections. He is a frequent writer and speaker on the Foreign Account Tax Compliance Act (FATCA), IRS tax controversy, regulation, cross-border tax and estate planning issues. Roy received his LLM (US Taxation) from the New York University School of Law, a JD cum laude jointly from New York University School of Law and Willamette University, and a BA in Economics from the University of California, Berkeley. - Current at 19 September 2016
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Marsha Laine Dungog
Marsha is a partner in the private client and tax team and is the Office Managing Director of the San Francisco Office. Marsha provides US international income, trusts and estate tax planning for high net worth individuals, and family businesses based in the US and abroad with respect to their cross-border assets, investments and activities. She also advises trustees, executors and fiduciaries as well as financial, tax and legal advisors on international tax exposures and reporting obligations for beneficiaries and heirs of trusts and estates with US connections. Marsha’s practice includes US tax planning for foreign investors, founders and entrepreneurs deriving income from US-based sources and operations, as well as tax advisory services for foreign legal, financial and tax advisors on the US taxation of foreign pensions and retirement arrangements, US-based investments and exit strategies for corporate executives, global employees and US persons living abroad. She is an author and frequent speaker on international tax issues. Marsha has published tax technical papers that have been presented to the tax-writing committees of the US Congress and the US Treasury Department on the US taxation of Australian Superannuation Funds, Mexican AFOREs and Canadian registered plans (RESPs and RDSPs). She has also spoken at international conferences and seminars in the US, Canada and Australia on the US taxation of foreign pensions and retirement, cross-border estates and trusts, international withholding and compliance enforcement initiatives, IRS voluntary disclosure programs and U.S. expatriation and green card termination alternatives. Prior to joining Withers, Marsha was a director at a large accounting firm in San Francisco providing international tax consulting and compliance services to high net worth clients with a global footprint, businesses and entrepreneurs. She also worked in Canada providing US tax advisory and compliance services for global high net worth individuals, cross-border families and businesses. Marsha is a public arbitrator for the US Financial Industry Regulatory Authority (FINRA) and instructor in US international tax for the American Institute of Certified Public Accountants (AICPA). In 2018, she was recognized by the Canadian Business Chicks as a Woman of Inspiration (Authentic Leader Category) and in 2020, by the California Society of CPAs as a Woman to Watch (Experienced Leader Category). - Current at 22 September 2021
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This was presented at 2016 National Superannuation Conference .

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