What process does the Tax Office follow to investigate unpaid super enquiries?
From 1 July 2007, the Tax Office is able to provide employees with more advice on the progress of unpaid super and choice of fund enquiries.
The table below provides an overview of the steps the Tax Office takes during the investigation of an unpaid super enquiry.
Once you do lodge a query, the Tax Office will keep you updated about the progress of your case by letter. We will contact you when we reach the steps set out in the table below.
Select a step to view a detailed description of what work is undertaken by the Tax Office at each point of our investigation and what information you will receive during the course of your enquiry. You can find answers to your questions throughout the process.
Joe Brown has worked for Make Believe Pty Ltd for the past two years. Joe checks his statement from his superannuation fund, Total Super, and discovers Make Believe Pty Ltd has not been paying him enough superannuation.
Having achieved no result after contact with his employer, Make Believe Pty Ltd, Joe decides to lodge an enquiry with the Tax Office, so that his unpaid super can be investigated.
Shortly after lodging his enquiry, Joe receives a letter from the Tax Office acknowledging receipt of his enquiry and an overview of the steps the Tax Office will take during the course of the investigation.
Later, Joe receives another letter from the Tax Office advising they have started the investigation of his employer Make Believe Pty Ltd.
A period of time passes and Joe receives another letter from the Tax Office. This letter advises that the Tax Office has established that there is an outstanding superannuation guarantee amount payable by Make Believe Pty Ltd to Joe.
Another period of time passes and Joe receives another letter from the Tax Office. This letter advises the Tax Office has transferred a sum of money received from Make Believe Pty Ltd into Joe’s account with Total Super.
Finally, Joe receives a letter from the Tax Office advising that his enquiry has been closed.
Summary – Joe’s enquiry is completed within 12 months.
Step 1 - Query received
What is the Tax Office doing?
When we receive your enquiry, we will make sure that we have all the information required to proceed with an investigation.
We may contact you if we have to clarify or gather more information.
How long will this take?
You should receive a letter acknowledging your enquiry shortly after providing us with all the required information.
What information will I be told?
We will provide you with an overview of information about the enquiry process. This will include when you will next hear from us and the steps in the process. We will also advise what else you can do and where you can obtain more information about the process.
Questions you may have at this stage of the process.
Superannuation guarantee entitlements refer to superannuation guarantee and choice of superannuation fund.
The superannuation guarantee is a minimum level of super that an employer must pay to eligible employees by law.
Choice of fund gives many employees the right to choose which superannuation fund will receive their employer superannuation guarantee contributions.
Can I lodge an enquiry about unpaid super if the period in question was over 5 years ago?
The superannuation guarantee legislation requires an employer to keep records for at least five years. If the period to which your enquiry relates falls outside of this timeframe, we can only determine if your employer has not made sufficient superannuation guarantee contributions where you have irrefutable written documentation to support your entitlement. If you do not have documentary evidence that your employer has not met their SG obligations, we cannot take any further action in relation to periods beyond five years ago.
When will I hear from the Tax Office?
We will send you a letter:
when our investigation into your enquiry has started, or
Based on information provided to date, we believe you are eligible for superannuation guarantee entitlements and we will start investigating your situation.
We will contact your employer to determine whether or not they have met their super obligations. We may contact your employer by phone, send them a letter or visit their premises to obtain the information we require for our investigation.
How long will this take?
The timeframe will vary depending on the number of enquiries we receive.
What information will I be told?
We will provide you with an overview of our investigation process. This will include some of the reasons why it can take so long and when you will next hear from us.
We are still following up your employer to obtain the information we need to determine if they have met their superannuation guarantee obligations.
If we do not receive the required information from your employer by the due date, we will try to work out whether they have met their superannuation guarantee obligations, based on the information we do have.
How long will this take?
While we aim to complete all investigations as quickly as possible, delays may occur if:
your employer is slow to respond to our request for information, or
your employer does not provide enough information, or
we have a large number of investigations in progress.
What information will I be told?
We will advise you if we are experiencing delays with our investigation of your employer.
Questions you may have at this stage of the process.
Why does the Tax Office wait so long to receive the information required from the employer?
We give your employer set timeframes to provide us with the information we have requested. There may be circumstances unique to your employer where we need to allow them a longer period.
Once our deadlines have passed, we will make a decision based on the information we have available to us.
In some situations, we may not have enough information to enable us to make a decision, and we may need to pursue legal action to obtain the information we need. This can be a very long process.
Be assured that the Tax Office investigates all enquiries.
When will I hear from the Tax Office?
We will send you a letter when our investigation of your employer is closed.
Based on the information received from your employer, we have established that they have not met their superannuation guarantee obligations.
We will send:
your employer an assessment that tells them how much they owe and a due date for payment, and
you a letter telling you that we have completed our investigation and the outcome.
How long will this take?
We aim to complete our investigations as quickly as possible. Some investigations may take longer, particularly if we need to go to court to obtain the information we require from your employer.
Questions you may have about this letter.
How much super will I get?
You can phone us and we will arrange to advise you of the amount owed to you by your employer for the period of your complaint. This amount is only an estimate, because it is based on the information provided to date.
The actual amount that is paid into your super fund may differ from the estimate we provided because:
the estimated amount accrues interest on a daily basis, or
the estimated amount could decrease if the employer provides new information to us that prove they owe a lesser amount.
When will I hear from the Tax Office?
We will send you a letter:
when we transfer payments received from your employer into your super fund
if we are still trying to collect your employer’s debt
if we need to take legal action against your employer
When we establish that your employer has not met their superannuation obligations, we issue them with an assessment. The assessment tells the employer how much they owe, and when their debt is due.
After the due date has passed, we will try to collect the outstanding debt from your employer. The debt collection process involves contacting your employer by phone or in writing to come to an agreement on how the debt will be collected. Your employer may be asked to pay the outstanding amount in full or they may negotiate payment over time in a series of instalments.
We may commence legal action in those cases where we are unsuccessful in collecting the amount owed.
How long will this take?
We aim to collect the debt owed by your employer as soon as possible. The debt owed by your employer during this period accrues interest on a daily basis.
The timeframe, however, depends on your employer’s ability to pay their debt. Delays may occur if:
your employer has not responded to our request for payment
your employer does not adhere to an agreed payment plan
we need to initiate legal action against your employer, or
your employer has disputed the debt that we have estimated they owe. This means that we may need to re-calculate the debt, based on the new information provided by your employer. The amount payable to you may change.
What information will I be told?
If your employer has not paid their debt, we will send you a letter:
advising you that we are still trying to collect your employer’s debt, or
if we commence legal action against your employer.
If your employer makes payments promptly, you will receive a letter from the Tax Office providing details of how much was transferred into your super fund.
When will I hear from the Tax Office?
We will send you a letter:
when payments received from your employer have been deposited into your super fund
Your query will be closed after we have concluded our investigation and taken the steps available to us to retrieve any outstanding superannuation guarantee amount.
What information will I be told?
You will receive a letter advising that your query has been closed and an explanation of the reason why.
There are a number of reasons why your query can be closed, these include:
Below are examples of why you are not eligible for super.
Your employer was not required to provide superannuation guarantee contributions.
This letter will list reasons why you are not entitled to receive superannuation guarantee contributions.
Your employer was not required to offer you choice of superannuation fund.
This letter will list reasons why your employer was not required to offer you choice of superannuation fund.
We have been unable to confirm a relationship between the employer and you.
This letter will advise we have not received the required information from you to establish an employment relationship.
Your employer has done the right thing
What information will I be told?
Below are examples of why your employer has done the right thing.
Your employer has paid the money to the Tax Office.
This letter will advise we have confirmed that a payment was made to the Tax Office.
Your employer has paid the money to the Tax Office through the superannuation holding accounts special account.
This letter will advise we have confirmed that a payment was made to the Tax Office through the superannuation holding accounts special account.
Your employer has paid the money to your superannuation fund.
This letter will advise that contributions have been made to the superannuation fund.
The period of your enquiry is for the current quarter.
This letter will advise that your enquiry relates to the current quarter and your employer still has time to meet their obligations.
The period of your enquiry dates back more than five years.
This letter will advise that legislation requires an employer to keep records for at least five years. As you do not have the documents to support your entitlement to superannuation contributions, we cannot take any further action.
Your employer is bankrupt
What information will I be told?
This letter will advise when your employer had a trustee appointed under the Bankruptcy Act 1966. It will advise that it is the responsibility of the appointed trustee to advise if there are sufficient funds to meet your employer’s superannuation guarantee obligation. We will provide the contact details of the bankruptcy trustee’s name and address.
Your employer’s company is in liquidation
What information will I be told?
This letter will provide confirmation when a liquidator was appointed. It will advise that it is the responsibility of the liquidator to advise if there are sufficient funds to meet your employer’s superannuation guarantee obligation. We will provide the contact details of the liquidator’s name and address.
Your employer’s company is under administration
What information will I be told?
This letter will provide confirmation when an administrator was appointed. It will advise that it is the responsibility of the administrator to advise if there are sufficient funds to meet your employer’s superannuation guarantee obligation. We will provide the contact details of the administrator’s name and address.
Your employer’s company is deregistered
What information will I be told?
This letter will provide confirmation when this company was deregistered. It may advise that there is no business or company for us to take action against, so we are not able to take further action in relation to your enquiry.
We have determined the debt is not recoverable
What information will I be told?
This letter will advise we have taken the action we can in relation to your enquiry and unfortunately you will not receive any superannuation from your employer.
It will list reasons why this occurred, such as:
as a result of legal action, we have received a court decision telling us that payments owed by your employer can no longer be pursued
the cost of us pursuing the unpaid superannuation is higher than the amount owed to you, or
your employer provided us with information to prove they do not owe you any superannuation guarantee.
Questions you may have about this step in the process.
Why has the Tax Office closed my query when I haven’t received payment(s) in my super fund?
We will do everything possible to obtain payment from your employer.
However, there may be circumstances where you will not receive a payment. This can happen if:
as a result of legal action, we have received a court decision telling us that payments owed by your employer can no longer be pursued
the cost of us pursuing the unpaid superannuation is higher than the amount owed to you
your employer provided us with information to prove they do not owe you any superannuation guarantee, or
if your employer provides us with new information that proves the amount previously calculated was incorrect. This can happen, for example, if
your employer can show that you are not entitled to receive superannuation
your employer can show they have fulfilled their obligations
your employer lodges a request for an amended assessment or an objection.
Be aware that we can reinstate an employer’s debt in some circumstances, even if it has been reduced to zero. Any payment(s) recovered, would be forwarded to your super fund.
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