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By: Simon Gow, Paul Banister, Adriarnne Ede
13 Oct 2025 7 min read
The revised framework aims to address concerns around fairness, bracket creep, and the taxation of unrealised gains, while still targeting high-balance superannuation accounts.
The original $3m threshold remains, but a new $10m tier has been introduced.
Both thresholds will now be indexed to inflation, preventing bracket creep and ensuring fewer Australians are unintentionally captured over time.
The revised proposal removes the controversial element of taxing unrealised capital gains, with the Treasurer announcing that the Division 296 tax will only apply to future realised earnings.
The revised tax framework is scheduled to commence from 1 July 2026, allowing time for consultation and strategic planning for those affected.
With the tax expected to apply for the 2027 financial year, there is time to assess any plans and implement strategies prior to 30 June 2027 to reduce the impact of the Division 296 tax.
It’s critical to wait until the final legislation is passed rather than withdrawing funds prematurely in anticipation of the tax, as re-contribution may not be possible if the legislation does not proceed as expected.
The effective tax deferral on unrealised capital gains is welcomed, but it will be a matter of understanding the details of the transitional rules so that the value generated pre-1 July 2026 can be protected from the new tax.
For many, superannuation will remain a tax-effective structure even with the new tax. For others, it may be an opportunity to review their current and alternative investment vehicles to identify the most tax effective strategies moving forward.
Treasury have advised that the precise method for calculating the tax liability will be settled during the consultation process, but anticipate that it will follow these five broad steps (as outlined in the Treasury Fact Sheet):
ATO notifies the super fund that there is an in-scope member (i.e. a member with a total superannuation balance of $3m or more)
Fund calculates realised earnings attributable to that in-scope member and reports this to ATO
Note: the trustee of the super fund could attribute earnings to in-scope members using existing processes or on a fair and reasonable basis (as supported by ATO guidance).
ATO calculates the proportion of the total super balance (TSB) exceeding the $3m threshold.
Proportion of TSB₁ = (TSB (Current Financial Year) - $3 million) / TSB (Current Financial Year)
ATO calculates the proportion of the TSB exceeding the $10m threshold (if applicable)
Proportion of TSB₂ = (TSB (Current Financial Year) - $10 million) / TSB (Current Financial Year)
ATO calculates the total tax liability for all that member’s interests
Tax Liability = 15% × Total Earnings × Proportion of TSB₁ + 10% × Total Earnings × Proportion of TSB₂
Note: the tax liability formula above gives effect to the two-tiered approach, applying an additional 15% tax on the proportion of earnings corresponding to the TSB between $3 and $10m, and an additional 25% tax on the proportion of earnings corresponding to the TSB above $10m. These apply in addition to the fund’s concessional tax rate of 15%.
To illustrate the potential impact of Division 296, consider the following case studies as outlined in the Treasury Fact Sheet.
Megan is 58 and she is both a member of an APRA-regulated fund and a member of an SMSF and has a total super balance of $4.5m, of which $2.3m is in an APRA fund and the remaining $2.2m is in an SMSF.
In the 2026-27 financial year, Megan had $100,000 in realised earnings from her APRA fund and $200,000 in realised earnings from her SMSF (a total of $300,000).
*The precise formula to calculate earnings has not yet been confirmed.
The proportion of her $4.5m balance above the $3m threshold is 33.33%. The proportion above $10m is nil.
Megan’s tax liability is therefore $15,000 (0.15 x 0.3333 x $300,000).
Emma is 55 and a member of an SMSF and has a total super balance of $12.9m at the end of the 2026-27 income year.
That year she was attributed $840,000 of the fund’s realised earnings for the purposes of this tax.
The proportion of her balance above the $3m threshold is 76.74% and the proportion of her balance above the $10m threshold is 22.48 per cent.
Emma’s tax liability is therefore $115,581 (0.15 x 0.7674 x $840,000 + 0.10 x 0.2248 x $840,000). Note the combined tax rate on earnings over $10m is 25%.
Division 296 represents a significant change for individuals with high superannuation balances. It is crucial for individuals to seek tailored advice and plan accordingly to navigate these changes and the implications for their superannuation and wealth strategies. If you’d like to discuss your current superannuation strategy, please reach out to one of our experts today.
The above information is provided as an information service only and, therefore, does not constitute financial product advice and should not be relied upon as financial product advice. None of the information provided takes into account your personal objectives, financial situation or needs. You must determine whether the information is appropriate in terms of your particular circumstances. For financial product advice that takes account of your particular objectives, financial situation or needs, you should consider seeking financial advice from an Australian Financial Services licensee before making a financial decision in relation to any of the matters discussed.
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The rules for SMSF borrowing to acquire real property have now changed. While the policy debate has largely focused on residential property, the final law operates by reference to whether the real property qualifies as business real property under the superannuation rules. This distinction is important for trustees, advisers and lenders considering property transactions from 10 August 2026.
Treasury has released draft regulations supporting the Treasury Laws Amendment (Building a Stronger and Fairer Super System) Act 2026, which introduced the new Division 296 tax on superannuation balances exceeding $3m and $10m. The regulations provide the long awaited operational detail on how the new tax will work in practice, particularly for defined benefit interests, large Australian Prudential Regulation Authority funds and Self-managed Superannuation Funds.
