ATO Interpretative Decision
ATO ID 2002/728 (Withdrawn)
Superannuation
Superannuation contributions surcharge: Holder of the contributions.FOI status: may be released
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This ATO ID is withdrawn because superannuation contributions surcharge assessments are not made in respect of financial years after the 2004-05 financial year. Despite its withdrawal, this ATO ID is still a precedential view for decisions in respect of superannuation contributions surcharge assessments for financial years from 1996-97 up to and including 2004-05.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 superannuation provider liable to pay the superannuation contributions surcharge under subsection 10(2) of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (SCT Act) when the member's surchargeable contributions are transferred to another superannuation provider after an assessment is received but before the surcharge is paid?
Decision
Yes. The superannuation provider is liable to pay the surcharge in accordance with subsection 10(2) of the SCT Act as the holder of the surchargeable contributions when the surcharge assessment on those contributions is made.
Facts
The provider (Provider A) receives a surcharge assessment in respect of the member's surchargeable contributions for the financial year. Subsequently, Provider A receives instructions from the member to transfer the contributions to another provider (Provider B). Provider A completes the transfer and the contributions are transferred to Provider B prior to the due date for payment of the assessment. However Provider A did not retain any amount from the member's account to pay the surcharge liability in respect of the assessment they received prior to the commencement of the transfer process.
Reasons for Decision
Under subsection 10(3) of the SCT Act, a provider is not liable to pay the surcharge assessment if they cease to hold the contributions, or begins to pay a pension or annuity based on those contributions, before receiving the notice of assessment.
In accordance with subsection 10(2) of the SCT Act, Provider A is liable to pay the surcharge as holder of the contributions when the assessment of the surcharge on the member's contributions was made and because they did not cease to hold the contributions until after the notice of assessment was received.
Date of decision: 22 January 1999
Legislative References:
Superannuation Contributions Tax (Assessment and Collection) Act 1997
subsection 10(2)
subsection 10(3)
Keywords
Previously released as CDS10371
Keywords
Superannuation contributions surcharge
Holder of the contribution
Superannuation contributions tax
Superannuation, retirement & employment termination
ISSN: 1445-2782
| Date: | Version: | |
| 22 January 1999 | Original statement | |
| You are here | 19 February 2010 | Archived |