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  • 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
    Early 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
    October 2022

    Comments
    Finalisation of the practice statement has been delayed due to other priority work.

    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
    October 2022

    Comments
    Finalisation of the Practice Statement has been delayed due to other priority work.

    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
    Late 2022

    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
    Late 2022

    Comments
    We are working through and further considering the comments received and technical issues identified after draft TD 2021/D6 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
    The update to 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
    The draft update to TR 2010/1DC published on 28 July 2021. Comments period closed on 27 August 2021.

    Appendix 2 of this 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 recent High Court decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1:

    • Superannuation Guarantee Ruling SGR 2005/2 Superannuation guarantee: work arranged by intermediaries (these would all be linked)
    • Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee?
    • Taxation Ruling TR 2005/16 Income tax: Pay As You Go – withholding from payments to employees
    • 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
    October 2022

    Comments
    Drafts of initial revised products are anticipated to be released by October 2022.

    Contact
    PAGSEO@ato.gov.au

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

    Last modified: 03 Oct 2022QC 50320