ATO Interpretative Decision

ATO ID 2003/58 (Withdrawn)

Superannuation

Termination payments tax: Request for Commissioner to remit termination payments surcharge payable.
FOI status: may be released
  • This ATO ID is withdrawn because termination payments surcharge is not payable on payments made in the 2005-06 and later financial years. Despite its withdrawal, this ATO ID will still apply to termination payments made after 20 August 1996 and before 1 July 2005.
    This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Status of this decision: Decision Withdrawn 5 February 2010
CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Does the Commissioner have a discretion to remit the termination payments surcharge assessed as payable under section 11 of the Termination Payments Tax (Assessment and Collection) Act 1997 (TPT Act)?

Decision

No. The Commissioner does not have a discretion to remit the surcharge assessed as payable under section 11 of the TPT Act.

Facts

The taxpayer received an employer eligible termination payment (ETP) that was subject to the termination payments surcharge.

As the taxpayer's adjusted taxable income (ATI) exceeded the surcharge threshold, the Commissioner calculated the amount of surcharge payable and issued an assessment to the taxpayer.

Reasons for Decision

Under section 11 of the TPT Act, the Commissioner is required to calculate the amount of surcharge payable in respect of a termination payment if a person's ATI exceeds the surcharge threshold for the relevant financial year the payment was received.

As the taxpayer's ATI exceeded the surcharge threshold, the Commissioner calculated the surcharge payable on the termination payment and issued an assessment to the taxpayer.

As the Commissioner does not have discretion under the TPT Act to remit (in part or in full) the surcharge liability that has been assessed as payable under section 11 of the TPT Act, the surcharge assessment remains payable by the taxpayer.

Date of decision:  17 December 2002

Legislative References:
Termination Payments Tax (Assessment and Collection) Act 1997
   section 11

Keywords
Termination payments tax
Termination payments surcharge
Commissioner's discretion

Business Line:  Superannuation

Date of publication:  15 March 2003

ISSN: 1445-2782

history
  Date: Version:
  17 December 2002 Original statement
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