Show download pdf controls
  • Advice under development – superannuation issues

    We are developing advice and guidance on the following superannuation issues.

    [3938] Superannuation income stream

    Title
    Addendum to Taxation Ruling TR 2013/5
    Income tax: when a superannuation income stream commences and ceases

    Purpose
    TR 2013/5 has been impacted by the legislative amendments flowing from the 2016 Budget announcement of the transfer balance cap, which limits the superannuation interests that a person can have in retirement phase. The Addendum will update the legislative references in the Ruling as a result of these amendments, as well as address other amendments – including to the definition of superannuation income stream benefit.

    Expected completion
    Mid 2023

    Comments
    Completion of this Addendum has been delayed due to other higher priority issues and to enable further consideration of issues relating to reversionary pensions.

    Contact
    PAGSEO@ato.gov.au

    [3971] Self-managed super funds – rectification directions

    Title
    Final Law Administration Practice Statement
    Rectification direction for contraventions to the Superannuation Industry (Supervision) Act 1993

    Purpose
    This Practice Statement will provide guidance to ATO staff on the relevant matters to be considered when deciding whether to give a trustee or a director of a body corporate that is a trustee of a self-managed super fund a written rectification direction under section 159 of the Superannuation Industry (Supervision) Act 1993.

    Expected completion
    Mid 2023

    Comments
    Following the feedback we received, we expect to publish this product in February 2023.

    Contact
    PAGSEO@ato.gov.au

    [3972] Self-managed super funds – education directions

    Title
    Final Law Administration Practice Statement
    Education direction for contraventions of the Superannuation Industry (Supervision) Act 1993

    Purpose
    This Practice Statement will provide guidance to ATO staff on the relevant matters to be considered when deciding whether to give a trustee or a director of a body corporate that is a trustee of a self-managed super fund a written education direction under section 160 of the Superannuation Industry (Supervision) Act 1993.

    Expected completion
    Early 2023

    Comments
    Following the feedback we received, we expect to publish this product in February 2023.

    Contact
    PAGSEO@ato.gov.au

    [3975] Super benefits in breach of rules

    Title
    Final Law Administration Practice Statement
    Exercising the Commissioner’s discretion where superannuation benefits are received in breach of legislative requirements

    Purpose
    This Practice Statement will provide guidelines on the Commissioner's discretion as set out in subsection 304-10(4) of the Income Tax Assessment Act 1997, which may be applied where superannuation benefits are received in breach of legislative requirements.

    Expected completion
    Mid 2023

    Comments
    We are working through and further considering the comments received and technical issues identified after draft PS LA 2021/D3 was published on 15 December 2021.

    Contact
    PAGSEO@ato.gov.au

    Title
    Final Taxation Determination
    Income tax: how will a superannuation benefit be treated for income tax purposes where the Commissioner determines it would be unreasonable for it to be included in an individual’s assessable income under subsection 304-10(4) of the Income Tax Assessment Act 1997?

    Purpose
    This Determination will set out the Commissioner’s view on the income tax treatment of a superannuation benefit received by an individual otherwise than in accordance with the payment standards prescribed under subsection 31(1) of the Superannuation Industry (Supervision) Act 1993, where the Commissioner exercises the discretion contained in subsection 304-10(4) of the Income Tax Assessment Act 1997.

    Expected completion
    Mid 2023

    Comments
    We are working through and further considering the comments received and technical issues identified after draft TD 2021/D6 was published on 15 December 2021.

    Contact
    PAGSEO@ato.gov.au

    [3984] Non-arm's length expenditure

    Title
    Update to Taxation Ruling TR 2010/1
    Income tax: superannuation contributions

    Purpose
    Draft TR 2010/1 explains the interactions between the non-arm's length income provisions and the rules concerning superannuation contributions.

    Expected completion
    Late 2023

    Comments
    Draft TR 2010/1DC published on 28 July 2021.

    Appendix 2 of the draft update sets out the Commissioner’s proposed compliance approach for the 2018–19 and later income years in determining when a contribution has been made to the superannuation provider where the non-arm’s length income rules apply. It should be read in conjunction with Law Companion Ruling LCR 2021/2 Non-arm’s length income – expenditure incurred under a non-arm’s length arrangement.

    The draft update also reflects the removal of the maximum earnings test for the purpose of deducting personal contributions, which commenced from 1 July 2017.

    Contact
    PAGSEO@ato.gov.au

    [4042] Ordinary meaning of the term 'employee'

    We are reviewing the following products, which currently provide guidance on the meaning of the term ‘employee’, to reflect the direction provided in the High Court decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1:

    • Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee? [the draft of a related Practical Compliance Guideline has now issued, as per below]
    • Taxation Ruling TR 2005/16 Income tax: Pay As You Go – withholding from payments to employees [the draft replacement Ruling has now issued, as per below]
    • Superannuation Guarantee Ruling SGR 2005/2 Superannuation guarantee: work arranged by intermediaries
    • Taxation Ruling TR 2013/1 Income tax: the identification of 'employer' for the purposes of the short-term visit exception under the Income from Employment Article, or its equivalent, of Australia's tax treaties
    • Superannuation Guarantee Ruling SGR 2009/1 Superannuation guarantee: payments made to sportspersons
    • ATO Interpretive Decision ATO ID 2014/28 Superannuation Guarantee Status of the Worker: Pizza delivery drivers as employees

    Expected completion
    Early 2023

    Comments
    Taxation Ruling TR 2005/16 was withdrawn with effect from the 15 December 2022. It is replaced by Taxation Ruling TR 2022/D3 Income tax: pay as you go withholding – who is an employee? (refer detail below). The remaining identified products are being progressively reviewed throughout 2023.

    Contact
    PAGSEO@ato.gov.au

    For more information, see Decision impact statement on Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1.

    Title
    Final Taxation Ruling
    Income tax: pay as you go withholding – who is an employee?

    Purpose
    This Ruling has replaced Taxation Ruling TR 2005/16 Income tax: Pay As You Go – withholding from payments to employees.

    The Ruling will explain the Commissioner's approach in applying the High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 to the definition of ‘employee’ for the purposes of section 12-35 of Schedule 1 to the Taxation Administration Act 1953. It will also aid in understanding the ordinary meaning of an ‘employee’ for the purposes of subsection 12(1) of the Superannuation Guarantee (Administration) Act 1992, but it is not binding on the Commissioner for this purpose.

    This Ruling should be read in conjunction with Draft Practical Compliance Guideline PCG 2022/D5 Classifying workers as employees or independent contractors – ATO compliance approach.

    Expected completion
    To be advised

    Comments
    Draft TR 2022/D3 published on 15 December 2022. Comments period closes on 17 February 2023.

    Contact
    PAGSEO@ato.gov.au

    Title
    Final Practical Compliance Guideline
    Classifying workers as employees or independent contractors – ATO compliance approach

    Purpose
    This Guideline provides guidance on the ATO's compliance approach on classifying workers as employees or contractors.

    It should be read in conjunction with Draft Taxation Ruling TR 2022/D3 Income tax: pay as you go withholding – who is an employee? and Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee?

    Comments
    Draft PCG 2022/D5 published on 15 December 2022. Comments period closes on 17 February 2023.

    Contact
    PAGSEO@ato.gov.au

    Last modified: 30 Jan 2023QC 50320