ATO Interpretative Decision
ATO ID 2001/20 (Withdrawn)
Superannuation
Superannuation guarantee charge: Charge not WaivedFOI status: may be released
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This ATO ID does not accurately reflect/indicate the ATO view due to legislative changes contained in Taxation Laws Amendment (Superannuation) Act (No.2) 2002 No 51This document has changed over time. View its history.
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If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Whether the Commissioner can waive the Superannuation Guarantee Charge (SGC) if superannuation contributions are made after 28 July in the following year of income.
Decision
No, the Commissioner cannot waive the Superannuation Guarantee Charge (SGC) if superannuation contributions are made after 28 July in the following year of income.
Facts
The taxpayer is an employer who made insufficient superannuation contributions to a complying superannuation fund for an employee for the years ended 30 June 1993 and 30 June 1994. The taxpayer wishes to have contributions which were made to the fund on 3 October 1993 count for SGC purposes for the year ended 30 June 1993.
Reasons For Decision
Section 5 of the Superannuation Guarantee Charge Act 1992 levies the superannuation guarantee charge on all superannuation guarantee shortfalls of employers. Section 6 of the Superannuation Guarantee Charge Act 1992 provides that the amount of the SGC payable is equal to the amount of any shortfall in contributions.
Subsection 23(6A) of the Superannuation Guarantee (Administration) Act 1992 allows an employer to reduce the amount of the shortfall to nil. The employer must make superannuation contributions for employees at the prescribed rate based on the appropriate earnings base to a complying superannuation fund by 28 July in the following year of income if it is to count for the relevant year. With respect to contributions in the 1993 year only, contributions could be taken in to account under subsection 23(6) of the Superannuation Guarantee (Administration) Act 1992 if they were made on or before 14 August 1993.
The Commissioner has no discretion to overlook failure to meet this requirement.
In this case, the Commissioner cannot reduce the SGC for the year ended 30 June 1993 as the superannuation contributions were not made on or before 14 August 1993. However, the contributions can be used to reduce the amount of the shortfall for the year ended 30 June 1994 as they were made before 28 July 1994.
Date of decision: 8 April 1998
Legislative References:
Superannuation Guarantee (Administration) Act 1992
section 5
section 6
subsection 23(6A)
SGC92
Related Public Rulings (including Determinations)
TR 94/12
Keywords
Superannuation guarantee charge
Superannuation guarantee scheme
Superannuation guarantee shortfalls
ISSN: 1445-2782
| Date: | Version: | |
| 8 April 1998 | Original statement | |
| You are here | 3 February 2006 | Archived |
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