ATO Interpretative Decision
ATO ID 2001/515
Superannuation
Superannuation contributions surcharge assessment - calculation of a member's 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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 superannuation provider liable for the surcharge where there has been a transfer of employer contributed amounts to the member?
Decision
No. Where there has been a transfer of employer contributed amounts from the superannuation provider to the member, the member is liable for the surcharge in respect of the surchargeable contributions they hold. Under section 10 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (SCTA) if the surchargeable contributions have been paid to the member then they are liable to pay the surcharge on those contributions.
Facts
The superannuation provider, which was a superannuation (accumulated benefits) provider, reported employer superannuation contributions received for the member in the financial year.
During the financial year the superannuation provider paid to the member an eligible termination payment (ETP) which included surchargeable contributions.
The Commissioner of Taxation (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 a provider to the member or to another provider.
If the provider is the holder of the surchargeable contributions when the assessment of the surcharge on those contributions is made, the provider is liable to pay the surcharge (subsection 10(2) of the SCTA).
If the surchargeable contributions were paid, or the pension or annuity began to be paid, to the member, the member is liable to pay surcharge (subsection 10(4) of the SCTA.
In a superannuation (accumulated benefits) provider, surchargeable contributions are calculated by reference to amounts actually paid to the superannuation provider (subsection 8(2) of the SCTA). As the provider is a superannuation (accumulated benefits) provider, the total amount of employer contributions reported by the provider for the financial year are surchargeable contributions. However, as surchargeable contributions were paid to the member, the member is liable for the surcharge on those contributions.
Date of decision: 27 June 2001
Legislative References:
Superannuation Contributions Tax (Assessment and Collection) Act 1997
section 13
section 15
section 19
subsection 8(2)
subsection 10(2)
subsection 10(3)
Keywords
Employer superannuation contributions
Superannuation contributions tax
Superannuation (accumulated benefits) provider
Surchargeable contributions surcharge
Surchargeable contributions
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 27 June 2001 | Original statement |
| 1 May 2009 | Archived |