Advice under development – superannuation issues
We are developing advice and guidance on the following superannuation issues.
On this page
[3938] Superannuation income stream
Title
Draft update 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
June 2023
Comments
Completion of this draft update 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
[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
Late 2023
Comments
Taxation Ruling TR 2005/16 was withdrawn with effect from 15 December 2022.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 the 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 the 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 closed on 17 February 2023. We are considering the submissions received during the comment period and any impacts of the decision in JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76.
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Contact
PAGSEO@ato.gov.au
Title
Final Practical Compliance Guideline
Classifying workers as employees or independent contractors – ATO compliance approach
Purpose
This Guideline will provide guidance on the ATO's compliance approach on classifying workers as employees or contractors.
It will be related to and be read in conjunction with the final version of 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?
Expected completion
To be advised
Comments
Draft PCG 2022/D5 published on 15 December 2022. Comments period closed on 17 February 2023. We are considering the submissions received during the comment period and any impacts of the decision in JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76.
Contact
PAGSEO@ato.gov.au
[4063] Determining the amount of statutory income that is non-arm’s length income
Title
Draft Taxation Determination
Income tax: how the non-arm’s length income (NALI) and capital gains tax provisions interact to determine the amount of statutory income that is NALI
Purpose
Subsection 295–550(1) of the Income Tax Assessment Act 1997 (ITAA 1997) refers to ‘an amount of ordinary or statutory income’ that is NALI as a result of a scheme in which the parties were not dealing with each other at arm's length in relation to the scheme.
Statutory income includes the net capital gain as calculated using the method statement in subsection 102–5(1) of the ITAA 1997 (including the application of capital losses, discount percentage and small business concessions) and as such is relevant in calculating:
- statutory income for the purposes of subsection 295–550(1) of the ITAA 1997; and
- tax payable by superannuation funds, approved deposit funds and pooled superannuation trusts using the method statement in subsection 295–10(1) of the ITAA 1997.
This draft Determination will address how these provisions interact to determine the amount of statutory income that is NALI where a capital gain arises as a result of non-arm’s length dealings.
Expected completion
June 2023
Contact
PAGSEO@ato.gov.au
We are developing advice and guidance on the following superannuation issues.