Superannuation and insolvency
The following information sets out how superannuation affects various insolvency administrations.
Since 31 December 2007, the super guarantee charge (SGC) has been required to be paid before payments to ordinary unsecured creditors. This means it ranks equally with employees' entitlements for wages and super contributions, as long as there are assets available for distribution to priority creditors.
Consequently, the SGC is included in the capped amount of $2,000 that certain excluded employees can claim as priority, such as directors and their relatives.
Super guarantee charge
The super guarantee charge (SGC) is the total of the:
- individual employee shortfalls, plus
- administration component, plus
- nominal interest component.
Insolvency practitioners need to report any super shortfalls by lodging an SGC statement with us.
We require the following information for each employee to raise the correct assessment:
- full name
- date of birth
- tax file number (TFN)
- super guarantee (separate for each quarter)
- excluded and capped employees clearly identified.
To submit the information electronically, see our Super guarantee charge statement and calculator tool.
Once you submit the form, the super account will be updated automatically. We will issue a statement of account without delay.
Since 31 December 2007, the SGC together with super contributions has been included in section 556(1)(e) of the Corporations Act 2001 (Corporations Act).
SGC claims regarding excluded employees, such as directors and their spouses, will be a priority on the first $2,000 claimed. Any amounts exceeding $2,000 will rank with unsecured creditors.
Deeds of company arrangement
Since 31 December 2007, all deed of company arrangement have been required to include a clause to the effect that 'eligible employee creditors' will enjoy a priority under the administration. This is at least equal to what they would have received had there been a winding up.
The term 'eligible employee creditor' is defined to include a creditor with a liability that falls within the priority afforded by section 556(1)(e) of the Corporations Act. Our claim for the SGC falls within this definition.
Claims by an 'eligible employee creditor' are to be paid:
- in priority to other unsecured creditors
- ahead of any priority that otherwise might be enjoyed by a charge holder.
Affected employees may vote down the inclusion of such a provision at a meeting held prior to the second meeting of creditors. This will depend on their notice of that meeting receiving a written opinion from the administrator with reasons for the opinion and other relevant information. This is on whether the non-inclusion of that provision would likely result in the same or better outcome for them compared with what they would have received on an immediate winding up.
Although not specifically legislated for, the inclusion of the SGC as a priority debt in section 556(1)(e) of the Corporations Act means that the SGC will obtain a priority in a receivership through the operation of section 433(3)(c) of the Corporations Act. The SGC will be treated in the same way as other wage related priority debts under section 556(1)(e).
The SGC has been afforded priority in bankruptcy under section 109 (1C) of the Bankruptcy Act 1966 (Bankruptcy Act) since 5 May 2003. This priority extends to general interest charge in respect to the non-payment of the SGC. The SGC is included in the category of employee entitlements including salary, wages or commission.
The maximum amount subject to the priority is adjusted annually:
- $4,550 for the year ending 30 June 2019
- $4,600 for the year ending 30 June 2020.
Part IX and X arrangements
There is no legislative requirement for the SGC to be afforded a priority in arrangements made pursuant to Parts IX and Part X of the Bankruptcy Act. However, trustees frequently address this anomaly by including a clause in the deed that gives the SGC a similar priority to that which it would have received in bankruptcy. The Commissioner of Taxation may vote against a deed that does not provide priority for SGC if bankruptcy would yield a greater return.
Since 31 December 2007, external deed of company arrangement (DOCA) administrators have been required to reject a proof of debt from a super fund for a super contribution that results in a SGC (section 444DB). The SGC will be preferred since it includes an interest component, providing employees a greater benefit. All DOCAs must now contain a provision to that effect.
Liquidators will also have the power under section 553(1A) of the Corporations Act to reject the whole or part of a proof of debt for super where the amount has already been paid by way of the SGC or there is an admissible proof for the SGC.
How dividend payments are applied
Section 64B of the Superannuation Guarantee Administration Act 1992 sets out a formula for the allocation of payments received on a pro rata basis.
Information about how superannuation affects various insolvency administrations.