Superannuation Guarantee (Administration) Act 1992

PART 3 - LIABILITY OF EMPLOYERS OTHER THAN THE COMMONWEALTH AND TAX-EXEMPT COMMONWEALTH AUTHORITIES TO PAY SUPERANNUATION GUARANTEE CHARGE

18 (Repealed) SECTION 18 INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALL FOR 1992-93
(Repealed by No 51 of 2002)

[ CCH Note: S 18 to 18D will be inserted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16 . S 18 to 18D will read:

Subdivision C - Individual superannuation guarantee shortfalls arise if insufficient timely eligible superannuation contributions are made

SECTION 18 SIMPLIFIED OUTLINE OF THIS SUBDIVISION
18

This Subdivision is relevant if an employer has an individual superannuation guarantee amount for an employee that is greater than nil.

The employer will have an individual base superannuation guarantee shortfall for the employee that will result in superannuation guarantee charge if the employer does not make an equivalent amount of eligible superannuation contributions:

(a) for the benefit of the employee; and

(b) within a particular period.

The employer can reduce the amount of the charge by making eligible superannuation contributions:

(a) for the benefit of the employee; and

(b) up until the day before the Commissioner makes an assessment of the amount of the charge.

SECTION 18A MEANING OF ELIGIBLE CONTRIBUTION - MAIN RULES

18A(1)
An eligible contribution , made by an employer for the benefit of an employee, is:

(a) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee that:

(i) is to a complying superannuation fund; and

(ii) is able to be allocated within the fund for the benefit of the employee; and

(iii) is not made for the benefit of the employee as a defined benefit member of a defined benefit superannuation scheme; and

(iv) is not made at a time when a conversion notice has effect in relation to the fund; or

(b) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee:

(i) to an RSA; and

(ii) that is able to be allocated within the RSA for the benefit of the employee; or

(c) if:

(i) the employee has died; and

(ii) the employer would, if the employee had not died, have made a contribution covered by paragraph (a) or (b) for the benefit of the employee; and

(iii) the employer instead pays an equivalent amount to the employee ' s legal personal representative;
that equivalent amount paid by the employer; or

(d) a contribution notionally made as described in subsection (3) to a defined benefit superannuation scheme for the benefit of the employee as a defined benefit member of the scheme.
Note:

For the purposes of subparagraphs (a)(ii) and (b)(ii) , regulations under the Superannuation Industry (Supervision) Act 1993 and under the Retirement Savings Accounts Act 1997 deal with the allocation of contributions.

Presumption for contributions to certain superannuation funds

18A(2)
A contribution made by the employer for the benefit of the employee to a superannuation fund is conclusively presumed to be a contribution to a complying superannuation fund for the purposes of subparagraph (1)(a)(i) if:

(a) at or before the time the contribution is made, the employer has obtained a written statement provided by or on behalf of the trustee of the fund; and

(b) the statement provides that the fund:

(i) is a resident regulated superannuation fund; and

(ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993 .

Note 1:

The presumption does not extend to any of the other elements of paragraph (1)(a) , such as that the contribution must not be a sacrificed contribution.

Note 2:

The presumption may not always be available (see section 18B ).

Notional contributions for defined benefit members of defined benefit superannuation schemes

18A(3)
If, on a QE day for the employer and the employee:

(a) a benefit certificate for a defined benefit superannuation scheme has effect; and

(b) the scheme is operating for the benefit of the employee:

(i) as a defined benefit member of the scheme; and

(ii) in relation to payments of qualifying earnings to or for the employee by the employer; and

(c) the benefit certificate:

(i) covers a class of employees (that includes the employee) as defined benefit members of the scheme; and

(ii) specifies the notional employer contribution rate in relation to that class of employees; and

(d) the employer has a written statement, provided by or on behalf of the trustee of the scheme, that the scheme:

(i) is a resident regulated superannuation fund; and

(ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993 ; and

(iii) has not been subject to such a direction at any time since the beginning of the day on which the benefit certificate is expressed to take effect;

treat the scheme as having received, on the QE day, a notional contribution made by the employer for the benefit of the employee that is equal to:

Amount of the qualifying earnings × Notional employer contribution rate

where:

amount of the qualifying earnings
has the same meaning as in subsection 17A(2) for the one or more payments of qualifying earnings to or for the employee made by the employer on the QE day.
Note:

The written statement may not always have effect (see section 18B ).

SECTION 18B MEANING OF ELIGIBLE CONTRIBUTION - EXCEPTIONS

18B(1)
However:

(a) the presumption in subsection 18A(2) is unavailable for a contribution to a fund if subsection (2) of this section applies on the day the contribution is made; or

(b) a statement provided as described in paragraph 18A(3)(d) has no effect for a scheme if subsection (2) of this section applies on the QE day.

18B(2)
This subsection applies on a day if, on that day:

(a) one of the following subparagraphs applies:

(i) the employer is the trustee or manager of the fund or scheme;

(ii) the employer is an associate of the trustee or manager of the fund or scheme;

(iii) the trustee or manager of the fund or scheme is an associate of the employer; and

(b) the employer reasonably believes that the fund or scheme:

(i) is not a resident regulated superannuation fund; or

(ii) is operating in contravention of a regulatory provision (within the meaning of section 38A of the Superannuation Industry (Supervision) Act 1993 ).

18B(3)
Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subparagraph (2)(b)(ii) of this section in a corresponding way to the way that section applies for the purposes of Division 2 of Part 5 of that Act.
Note:

Section 39 of that Act allows certain contraventions to be ignored.

SECTION 18C EMPLOYER ' S INDIVIDUAL BASE SUPERANNUATION GUARANTEE SHORTFALL FOR AN EMPLOYEE AND A QE DAY
Meaning of individual base superannuation guarantee shortfall

18C(1)
An employer ' s individual base superannuation guarantee shortfall for an employee and a QE day is equal to:
Individual superannuation guarantee amount for the employee and the QE day − Eligible contributions relevant for the QE day

where:

eligible contributions relevant for the QE day
means so much of each eligible contribution made by the employer for the benefit of the employee as:

(a) is applied under this subsection for the QE day (the current QE day ), and has not been applied under this subsection or section 18D for an earlier QE day; and

(b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and

(c) is so received during one of these periods (the standard periods ):

(i) the usual period for the current QE day; or

(ii) the 12-month period ending on the day before the current QE day;
or before the end of the latest day in any applicable items of the table in subsection (2) of this section; and

(d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil.

Note:

An eligible contribution in the form of a notional contribution to a defined benefit superannuation scheme will always be covered by subparagraph (c)(i) because it is treated as being received on the current QE day (see subsection 18A(3) ).

Allowable longer periods for receiving eligible contributions

18C(2)
In addition to the standard periods, the eligible contribution can be received before the end of the latest day in any applicable item of the following table:

Allowable longer periods for receiving eligible contributions

Item If this happens: The eligible contribution is to be received:

1 the eligible contribution is the first eligible contribution made to a particular complying superannuation fund or RSA by the employer for the benefit of the employee:
(a) after the employee commenced (or recommenced) employment with the employer; or
(b) after the employer ceased making one or more eligible contributions for the benefit of the employee to another complying superannuation fund or RSA during the extended usual period for the current QE day.

2 (a) the current QE day relates to qualifying earnings of a kind determined under subsection (3) ; and
(b) a later QE day (a standard QE day ) for the employer and the employee relates to qualifying earnings not of a kind determined under subsection (3) before the end of the usual period for the first standard QE day after the current QE day.

3 the employer and the current QE day are covered by a determination under subsection (4) before the later of:
(a) the end of the extended usual period for the current QE day; and
(b) the end of the period of 20 business days starting on the day after the determination is made.

4 the usual period for the current QE day ends before the latest day (the latest due day ) that an earlier eligible contribution that:
(a) was made by the employer for the benefit of the employee; and
(b) was applied under subsection (1) for an earlier QE day;
was able to be received for the purposes of subsection (1) before the end of the latest due day.

Note:

When the contribution is received is not the only factor for whether it is an eligible contribution relevant for the QE day (see paragraphs (a) , (b) and (d) of the definition of that expression in subsection (1) ).

Kinds of out-of-cycle qualifying earnings

18C(3)
The Commissioner may, by legislative instrument, determine:

(a) kinds of out-of-cycle qualifying earnings; and

(b) the circumstances that must exist for qualifying earnings to be one of those kinds.

Qualifying earnings in exceptional circumstances

18C(4)
The Commissioner may, by legislative instrument, determine:

(a) one or more kinds of employers that are affected by exceptional circumstances of a kind prescribed by the regulations that affect the ability of the employers to make eligible contributions; and

(b) the period during which any QE days for payments of qualifying earnings by those employers are affected by those exceptional circumstances.
The period determined for the purposes of paragraph (b) may start before the day the determination is made.

Note 1:

Examples of exceptional circumstances for this purpose include natural disasters, or widespread outages of information and communications technology services, that affect multiple employers on a large scale.

Note 2:

If the period starts before the day the determination is made, eligible contributions can still be counted if made before the end of the 20 business day period starting on the day after the determination is made (see item 3 of the table in subsection (2) ).

SECTION 18D EMPLOYER ' S INDIVIDUAL FINAL SUPERANNUATION GUARANTEE SHORTFALL FOR AN EMPLOYEE AND A QE DAY

18D(1)
An employer ' s individual final superannuation guarantee shortfall for an employee and a QE day is:

(a) if the employer ' s individual base superannuation guarantee shortfall for the employee and QE day is nil - nil; or

(b) otherwise - equal to the amount in subsection (2) .

18D(2)
The amount is:
Individual base superannuation guarantee shortfall − Eligible contributions relevant for the late period for the QE day

where:

eligible contributions relevant for the late period for the QE day
means so much of an eligible contribution made by the employer for the benefit of the employee as:

(a) is applied under this section for the QE day, and has not been applied under this section for an earlier QE day; and

(b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and

(c) is so received during the late period for the QE day; and

(d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil.

]

View history note

History

S 18 repealed by No 51 of 2002, s 3 and Sch 1 item 47, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 18 formerly read:

SECTION 18 INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALL FOR 1992-93
18(1)
An employer ' s individual superannuation guarantee shortfall in respect of an employee for the 1992-93 year is the sum of the employer ' s half-yearly shortfalls in respect of that employee for that year.

18(2)
An employer ' s half-yearly shortfall in respect of an employee for a half-year is the amount worked out using the formula:

Total salary or wages paid by the employer to the employee for the half-year × Charge percentage for the employer for
the half-year
100

where:

' Charge percentage for the employer for the half-year ' means the number ascertained in relation to that employer and that half-year according to section 20 or 21 or that number as reduced, in respect of the employee, by section 22 or 23 , as the case may be.

18(3)
If the total salary or wages paid by an employer to an employee in a half-year exceeds the maximum contribution base for the contribution period that corresponds to that half-year, the total salary or wages to be taken into account for the purposes of the application of subsection (2) in relation to the half-year is the amount equal to the maximum contribution base.
View history note

Hide history note

History

S 18(3) inserted by No 208 of 1992.

This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.

Individuals online services

Business online services

Agents online services

Non-residents online services

Foreign Investor

Superannuation Guarantee (Administration) Act 1992

Subdivision C - Individual superannuation guarantee shortfalls arise if insufficient timely eligible superannuation contributions are made

Note:

Note 1:

Note 2:

Note:

Note:

Note:

Note:

Note 1:

Note 2:

Tools

Tax information for

Help and support

Allowable longer periods for receiving eligible contributions
Item	If this happens:	The eligible contribution is to be received:
1	the eligible contribution is the first eligible contribution made to a particular complying superannuation fund or RSA by the employer for the benefit of the employee: (a) after the employee commenced (or recommenced) employment with the employer; or (b) after the employer ceased making one or more eligible contributions for the benefit of the employee to another complying superannuation fund or RSA	during the extended usual period for the current QE day.
2	(a) the current QE day relates to qualifying earnings of a kind determined under subsection (3) ; and (b) a later QE day (a *standard QE day* ) for the employer and the employee relates to qualifying earnings not of a kind determined under subsection (3)	before the end of the usual period for the first standard QE day after the current QE day.
3	the employer and the current QE day are covered by a determination under subsection (4)	before the later of: (a) the end of the extended usual period for the current QE day; and (b) the end of the period of 20 business days starting on the day after the determination is made.
4	the usual period for the current QE day ends before the latest day (the *latest due day* ) that an earlier eligible contribution that: (a) was made by the employer for the benefit of the employee; and (b) was applied under subsection (1) for an earlier QE day; was able to be received for the purposes of subsection (1)	before the end of the latest due day.