ATO Interpretative Decision
ATO ID 2002/410 (Withdrawn)
Superannuation
Superannuation guarantee scheme: employment statusFOI status: may be released
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This ATO ID is withdrawn as it is superseded by Superannuation Guarantee Ruling SGR 2009/2.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 employee, who has been temporarily transferred from New Zealand to Australia for a fixed term of one year, a 'prescribed employee' for the purposes of paragraph 27(1)(d) of the Superannuation Guarantee (Administration) Act 1992 (SGAA)?
Decision
No. The employee is not a 'prescribed employee'. The employer must, therefore, include the employee's salary in calculating whether it has a liability to pay the superannuation guarantee charge.
Facts
The employee is temporarily transferred from New Zealand to work in Australia for a fixed period of one year. The employee continues to contribute to their personal superannuation fund in New Zealand. The employer is of the understanding that certain employees, such as executives holding certain visas, are excluded from any entitlement to employer superannuation contributions. The employer enquires whether its New Zealand employee is also excluded from such an entitlement.
Reasons for Decision
Section 27 (SGAA) excludes certain salary and wages paid to employees for the purposes of calculating whether an employer has a liability to pay the superannuation guarantee charge. Paragraph 27(1)(d) (SGAA) specifically excludes salary and wages paid to an employee who is a 'prescribed employee'.
Subregulation 7(1) Superannuation Guarantee (Administration) Regulations 1993 sets out who is a prescribed employee for the purposes of paragraph 27(1)(d) (SGAA). The Regulations are specific in their wording. A prescribed employee is required to be a holder of one of the listed visas. There is no provision for employees who do not hold a visa.
In this case, as citizens of New Zealand do not require a visa to work in Australia, the employee did not hold a visa. Accordingly, the salary or wages paid to that employee are not excluded under paragraph 27(1)(d) (SGAA). The employer must, therefore, include the employee's salary in calculating whether it has a liability to pay the superannuation guarantee charge.
Date of decision: 3 June 1999
Legislative References:
Superannuation Guarantee (Administration) Act 1992
paragraph 27(1)(d)
subregulation 7(1)
Other References:
Previously released as CDS10373
Keywords
Superannuation guarantee scheme
Superannuation guarantee charge
ISSN: 1445-2782
| Date: | Version: | |
| 3 June 1999 | Original statement | |
| You are here | 5 February 2010 | Archived |