ATO Interpretative Decision
ATO ID 2001/518
Superannuation
Member's liability to pay surcharge assessment as holder of surchargeable contributionsFOI status: may be released
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This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is the member liable to pay the superannuation contributions surcharge for a financial year, after they became the holder of the surchargeable contributions?
Decision
Yes. After the member became the holder of the surchargeable contributions, the member is liable for the superannuation contributions surcharge. Under section 10 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (SCTA) the surcharge liability rests with the holder of the surchargeable contributions.
Facts
The superannuation provider, which was a superannuation (accumulation benefits) provider, reported surchargeable contributions made by an employer in the financial year in respect of the member.
The Commissioner of Taxation (Commissioner) issued a superannuation contributions tax assessment to the superannuation provider in respect of the reported surchargeable contributions for the member.
The superannuation provider advised the Commissioner that a portion of the surchargeable contributions previously reported for the member had been paid to the member as an eligible termination payment (ETP). The remainder of the surchargeable contributions had been rolled-over to another superannuation provider.
The Commissioner cancelled the assessment issued to the superannuation provider and removed its liability to surcharge on those contributions.
The Commissioner issued a superannuation contributions tax assessment to the member in respect of the surchargeable contributions which were included in the ETP paid to the member.
Reasons for Decision
Section 13 of the SCTA requires the superannuation provider to report to the Commissioner details of a member's total contributed amounts for each financial year including the member's surchargeable contributions. In addition, the superannuation provider is also required to report details of that part of the total contributed amounts transferred by the provider to the member or to another provider.
Under subsection 10(4) of the SCTA 1997, where the contributions are paid to the member as an ETP, the member is liable to pay the surcharge.
The Commissioner issued a superannuation contributions tax assessment (the notice of assessment) to the superannuation provider for the financial year in respect of the member's surchargeable contributions reported by the provider. However, prior to the receipt of the notice of assessment, the superannuation provider made two payments, which included the surchargeable contributions. One payment of the surchargeable contributions was rolled-over to another superannuation provider and the other was made to the member.
In respect of the payment made to the member by the superannuation provider, the Commissioner issued a superannuation contributions tax assessment to the member. The assessment recognised that the member was the holder of the surchargeable contributions and was liable to pay the surcharge.
Date of decision: 9 July 2001
Legislative References:
Superannuation Contributions Tax (Assessment And Collection) Act 1997
section 10
subsection 10(4)
section 13
Keywords
Superannuation contributions
Superannuation contributions tax
Adjusted taxable income
Superannuation contributions surcharge
Holder of the contributions
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 9 July 2001 | Original statement |
| 26 June 2009 | Archived |