Superannuation Guarantee Determination

SGD 93/10

Superannuation Guarantee: is a director who is entitled to directors' fees, but who must account to another for them, an employee of the company?

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FOI status:

1. Yes, people entitled to payment for the performance of duties as a director are employees of the company under subsection 12(2) of the Superannuation Guarantee (Administration) Act 1992 even if:

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they must account to their partners, a company, or any other entity for those fees; or

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the company pays the fees directly to their partners, a company, or any other entity.

2. A director is entitled to the payment of fees by the company if the payment is made under a contract between the director and the company. That the director directs the payment elsewhere, or is obliged to account to other parties for the fees earned, does not mean that the director becomes disentitled to the directors' fees.

3. A director is not entitled to the payment of fees if the only contract is between the company and a party appointing the director under which the appointor agrees to provide directorial services in return for a payment to itself.

Commissioner of Taxation
8/7/93

References

ATO references:
NO NO 92/7718-8

Subject References:
directors;
partners;
nominee

Legislative References:
SGAA 12(2)