Division 296 tax has passed parliament and what it means for large super balances

Division 296 has now become law, introducing an additional tax on superannuation earnings for individuals with very large super balances from 1 July 2026, with first assessments expected after 30 June 2027.

The long-awaited Division 296 tax has now passed both houses of Parliament and received Royal assent, becoming law under the Treasury Laws Amendment (Building a Stronger and Fairer Super System) Bill 2026.

While media coverage has focused on the so-called ‘$3m super tax’, the rules are more nuanced in practice. Division 296 affects certain high-balance super accounts, and the way the tax is calculated depends on several factors. This alert explains who is impacted, how the tax operates, and the key practical issues that are emerging.

Who is affected by Division 296

Division 296 applies to individuals whose total superannuation balance (TSB) exceeds $3m.

There are two thresholds:

$3m to $10m

• An additional 15 percent tax applies to the proportion of super earnings attributable to balances above $3m.

Over $10m

• A further 10 percent tax applies, resulting in a total additional tax of 25 percent on the relevant portion of earnings.

Both thresholds will be indexed to CPI, using incremental increases of $150,000 for the $3m threshold and $500,000 for the $10m threshold.

If your total super balance is below $3m, Division 296 will not apply. Division 296 will only apply if your TSB exceeds the relevant threshold.

What is actually being taxed

Division 296 does not tax:

• your total super balance
• your contributions
• withdrawals from super.

Instead, it applies to superannuation earnings, based on the proportion of your balance that exceeds the relevant threshold.

Super funds will continue to pay their usual tax on earnings, generally 15 percent. Division 296 operates at the individual level and effectively increases the tax rate on super earnings attributable to very large balances.

In broad terms, this means:

• earnings on balances above $3m may be taxed at up to 30 percent in total
• earnings on balances above $10m may be taxed at up to 40 percent in total.

An example of how Division 296 applies

Facts

• Total superannuation balance at 30 June 2027: $5m
• Superannuation earnings for the year: $400,000
• Member is in accumulation phase
• Balance exceeds $3m but is below $10m

Step 1: Determine the proportion of the balance above $3m

• Amount above $3m: $2m (TSB $5m - $3m threshold)
• Proportion above threshold: $2m ÷ $5m = 40 percent

Step 2: Apply this proportion to super earnings

• Earnings subject to Division 296: $400,000 × 40 percent = $160,000

Step 3: Apply the additional Division 296 tax

• Division 296 tax rate: 15 percent (between $3m and $10m only)
• Division 296 tax payable: $160,000 × 15 percent = $24,000

Total tax outcome

• The super fund continues to pay its normal tax on earnings
• The individual receives a separate Division 296 assessment of $24,000
• The individual can pay this personally or elect to release funds from super

This example illustrates that Division 296 does not apply to all earnings, only the portion attributable to the balance above $3m.

How earnings are calculated

Following industry feedback, the final legislation does not tax unrealised capital gains.

Instead, earnings are calculated using a realised earnings approach. Super funds will report realised, attributable earnings for affected members to the Australian Taxation Office (ATO) using approved methodologies.

Key points:

• Unrealised gains are excluded.
• Contributions are adjusted for.
• Special rules apply to pension phase income and defined benefit interests.

This change significantly reduces volatility risk compared to the original proposal.

How the balance threshold is tested

From the 2026–27 financial year onwards, an individual’s TSB will be measured at:

• the start of the financial year
• the end of the financial year.

The higher of these two balances will be used to determine whether Division 296 applies.

A transitional rule applies in the first year, where only the closing balance at 30 June 2027 is tested. This may create limited planning opportunities for individuals who have already met a condition of release.

Paying the Division 296 tax

The ATO issues the assessment to the individual affected.

Within 84 days, the individual can either:

• pay the tax from personal funds
• elect to release money from super, similar to the process under Division 293.

Key practical issues to be aware of

We are already seeing a number of recurring themes for impacted clients:

• Asset valuations matter more than ever, particularly for self-managed superannuation funds (SMSFs) holding property or unlisted investments.
• Capital gains tax (CGT) election will be available for SMSF’s assets at 30 June 2026 for Division 296 purposes only. The election is optional, must be applied to all CGT assets held directly by the fund, is irrevocable, and must be made by the due date of the fund’s 2026-27 tax return.
• Liquidity planning is critical, especially where super assets are illiquid.
• Spouse balance disparities can increase exposure over time.
• Defined benefit members will be subject to modified rules, with tax typically payable on retirement rather than annually.

What you should do now

If your total super balance is approaching or already exceeds $3m, consider:

• reviewing current and projected super balances
• ensuring valuation processes are robust
• modelling future earnings and potential Division 296 exposure
• revisiting contribution, pension, and estate planning strategies.

How SW can help

Navigating the new Division 296 tax can be complex, particularly for individuals with high super balances or SMSFs holding diverse assets. At SW, we have extensive experience in superannuation strategy, tax planning, and compliance, and we can help you understand your potential exposure, model future earnings, and develop practical strategies to manage the impact of this legislation. Our team can assist with valuation processes, liquidity planning, CGT elections, and contribution or pension planning to ensure your super arrangements remain efficient and aligned with your long-term goals. By working with SW, you gain tailored advice and actionable solutions to stay ahead of Division 296 requirements and make informed decisions for your superannuation and estate planning.

This publication is issued by SW Accountants & Advisors Pty Limited ABN 78 625 921 390 (SW) exclusively for the general information of clients and staff of SW and the clients and staff of all affiliated independent accounting firms (and their related service entities) licensed to operate under the name SW within Australia. The material contained in this publication is in the nature of general comment and information only and is not advice. The material should not be relied upon. SW, and related entity, or any of its offices, employees or representatives, will not be liable for any loss or damage arising out of or in connection with the material contained in the publication.

Contributor

Dominic Lam

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