Class Ruling

CR 2019/69

The University of Adelaide - early retirement scheme 2019

  • Please note that the PDF version is the authorised version of this ruling.

Table of Contents Paragraph
What this Ruling is about
Who this Ruling applies to
When this Ruling applies
Ruling
5
Scheme
9
Appendix - Explanation
28

Exclamation  Relying on this Ruling

This publication (excluding appendix) is a public ruling for the purposes of the Taxation Administration Act 1953.

If this Ruling applies to you, and you correctly rely on it, we will apply the law to you in the way set out in this Ruling. That is, you will not pay any more tax or penalties or interest in respect of the matters covered by this Ruling.

Further, if we think that this Ruling disadvantages you, we may apply the law in a way that is more favourable to you.

What this Ruling is about

1. This Ruling sets out tax consequences of an early retirement scheme implemented by the University of Adelaide (the University).

2. Full details of this scheme are set out in paragraphs 9 to 27 of this Ruling.

Who this Ruling applies to

3. This Ruling applies to the employees who receive a payment under the scheme.

When this Ruling applies

4. This Ruling applies from 6 November 2019 to 31 October 2020.

Ruling

5. The University of Adelaide early retirement scheme 2019 is an early retirement scheme for the purposes of section 83-180 of the Income Tax Assessment Act 1997.

6. All legislative references in this Ruling are to the Income Tax Assessment Act 1997 unless otherwise indicated.

7. Accordingly, so much of the payment received by an eligible employee, that exceeds the amount that could reasonably be expected to be received by the employee in consequence of voluntary termination of their employment at the time of the retirement, will be an early retirement scheme payment.

8. In addition, so much of the early retirement scheme payment as falls within the threshold calculated in accordance with section 83-170 is not assessable income and is not exempt income.

Scheme

9. The following description of the scheme is based on information provided by the applicant. If the scheme is not carried out as described, this Ruling cannot be relied upon.

10. The scheme is titled 'The University of Adelaide - early retirement scheme 2019', hereafter referred to as 'the scheme'.

11. The University launched its strategic plan in March 2019 that outlines the University's trajectory for the next ten years. The strategy defines five pillars that focus on delivering research and teaching for the future and recruiting and retaining talent to enable the pursuit of research and teaching excellence.

12. The University is considering the composition and nature of the academic staffing profile needed for the future. As the University aligns its curriculum with the interests and needs of students, it has an imperative to refresh and realign the composition of its academic work force so that it is appropriately equipped to serve its students and research focus.

13. The scheme enables a voluntary renewal and reorganisation of the academic work force. The scheme will enable staff whose personal career aspirations and capabilities no longer align with the University's strategic priorities and performance expectations, and who meet the eligibility criteria to leave the University with appropriate financial support.

14. The class of employees to whom the scheme applies is all persons who meet all of the following criteria:

·
employed in one of the five academic faculties or a research institute on a permanent basis as a Level B, C, D or E academic staff member, as defined in Schedule 6 of the University of Adelaide Enterprise Agreement 2017-2021 (the Enterprise Agreement)
·
50 years old or older as at 20 December 2019
·
have at least five years of continuous service as an academic staff member as at 20 December 2019
·
as at the date expressions of interest for the scheme are called (commencement date), have not formally advised the University of their resignation or retirement, have not accepted a pre-retirement contract, and do not have a formal agreement in place that will result in termination of their employment on a specified date, and
·
as at the commencement date, are not under a period of probation in accordance with clause 2.5.2 of the Enterprise Agreement.

15. The following employees are specifically excluded from participating in the scheme:

·
active Category 1 grant holders who are Chief Investigators employed by the University
·
as at the commencement date, engaged on a fixed-term contract, including Senior Staff Contracts in accordance with clause 2.3.2 of the Enterprise Agreement, with or without an underlying continuing position
·
limited key employees nominated on the basis of specialised expertise. The University has notified the key employees who are excluded from the scheme
·
any employee with an open workers compensation claim, or
·
any employee who is subject to a misconduct, serious misconduct or serious research misconduct process under clause 8.2 of the Enterprise Agreement.

16. Eligible employees who retire under the scheme will receive a payment of three weeks' salary for every completed year of continuous service, capped at 52 weeks:

·
The payment is calculated with reference to the staff member's ordinary rate of pay, as defined in clause 1.3 of the Enterprise Agreement, as at the date of termination of employment.
·
Part-time staff will receive a prorated payment based on their employment fraction as at the date of termination of employment.

17. All eligible employees terminated under the scheme will receive their statutory entitlements such as annual leave and long service leave where applicable. However, these amounts will not form part of the payment made under the scheme.

18. The scheme will operate as follows:

·
eligible employees will be invited to submit an expression of interest (EOI) to participate in the scheme
·
eligible employees who submit an EOI will be notified of the outcome, and
·
all eligible employees who accept the offer to retire under the scheme will terminate their employment and receive payment no later than 31 October 2020.

19. The number of packages in each faculty will be limited. If the scheme is oversubscribed, applications will be processed on the basis of age. Older employees will receive priority.

20. The University may choose to exceed a particular faculty's maximum cap where another faculty is undersubscribed.

21. If the number of employees wishing to participate in the scheme is less than the maximum number of packages available, the University has the discretion to implement a second EOI process during the life of this Ruling.

22. The payment made under the scheme is in excess of any superannuation and any other benefits to which eligible employees would otherwise be entitled.

23. Employees who terminate their employment other than under the scheme, will not be entitled to receive the scheme payment.

24. The retirement of employees who receive a payment under the scheme will occur before they reach pension age.

25. Payments made under the scheme will be at arm's length.

26. There is no agreement in place between any eligible employee and the University, or between the University and another person to employ the eligible employee after the retirement under the scheme.

27. Participation in the scheme is entirely voluntary.

Commissioner of Taxation
6 November 2019

Appendix - Explanation

Exclamation This Explanation is provided as information to help you understand how the Commissioner's view has been reached. It does not form part of the binding public ruling.
Table of Contents Paragraph
Requirements for an early retirement scheme 28
All employees within a class approved by the Commissioner may participate in the scheme 30
The employer's purpose in implementing the scheme is to rationalise or reorganise the employer's operations in a way approved by the Commissioner 33
The scheme must be approved by the Commissioner prior to its implementation 36
Other relevant information 38

Requirements for an early retirement scheme

28. A scheme will be an early retirement scheme if it satisfies the requirements of subsection 83-180(3).

29. Subsection 83-180(3) states that:


A scheme is an early retirement scheme if:

(a) all the employer's employees who comprise such a class of employees as the Commissioner approves may participate in the scheme; and

(b) the employer's purpose in implementing the scheme is to rationalise or re-organise the employer's operations by making any change to the employer's operations, or the nature of the work force, that the Commissioner approves; and

(c) before the scheme is implemented, the Commissioner, by written instrument, approves the scheme as an early retirement scheme for the purposes of this section.

These three conditions are now considered.

All employees within a class approved by the Commissioner may participate in the scheme

30. In order to satisfy the first condition, the scheme must be offered to all employees in a class approved by the Commissioner under paragraph 83-180(3)(a).

31. The class of employees to whom early retirement will be offered under the scheme is set out in paragraph 14, subject to paragraph 15, of this Ruling.

32. The Commissioner considers that this is an appropriate class of persons for the scheme to be offered to. In approving this class of employees the Commissioner has considered the nature of the rationalisation or reorganisation of the operations of the employer. It is therefore considered that these employees meet the requirements of an approved class of employees for the purposes of paragraph 83-180(3)(a).

The employer's purpose in implementing the scheme is to rationalise or reorganise the employer's operations in a way approved by the Commissioner

33. The proposed scheme must be implemented by the employer with a view to rationalising or reorganising the operations of the employer as described in paragraph 83-180(3)(b).

34. Paragraphs 11 to 13 of this Ruling describe the nature of the rationalisation or reorganisation of the employer's operations. In approving the scheme, the Commissioner has had regard to the changes in the operations and nature of the work force of the employer. It is considered that the scheme is to be implemented by the employer with a view to rationalising or reorganising the operations of the employer for the purposes of paragraph 83-180(3)(b).

35. Accordingly, the second condition for approval has been met.

The scheme must be approved by the Commissioner prior to its implementation

36. The scheme is proposed to operate for a period from 6 November 2019 to 31 October 2020. The approval to be provided by this Ruling will have been granted prior to implementation therefore, for the purposes of paragraph 83-180(3)(c), this condition is satisfied.

37. The scheme will be in operation for a period considered appropriate due to the circumstances of the reorganisation.

Other relevant information

38. Under subsection 83-180(1), so much of the payment received by an employee because the employee retires under an early retirement scheme, as exceeds the amount that could reasonably be expected to be received by the employee in consequence of the voluntary termination of their employment at the time of termination, is an early retirement scheme payment.

39. It should be noted that, in order for a payment to qualify as an early retirement scheme payment, it must also satisfy the following requirements (as set out in subsections 83-180(2), (5) and (6)):

·
the retirement occurred before the employee reached pension age or such earlier date on which the employee's employment would have terminated under the terms of employment because of the employee attaining a certain age or completing a particular period of service (as the case may be)
·
if the employee and the employer are not dealing with each other at arm's length (for example, because they are related in some way), the payment does not exceed the amount that could reasonably be expected to be made if the retirement was at arm's length
·
at the time of retirement there was no arrangement between the employee and the employer, or between the employer and another person, to employ the employee after the retirement
·
the payment must not be made in lieu of superannuation benefits, and
·
it is not a payment mentioned in section 82-135 (apart from paragraph 82-135(e)).

40. The term 'arrangement' is defined in subsection 995-1(1) as meaning 'any arrangement, agreement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable (or intended to be enforceable) by legal proceedings'.

41. In accordance with section 83-170, an early retirement scheme payment that falls within the specified limit is referred to as the 'tax-free' amount and will not be assessable income and will not be exempt income.

42. For the 2019-20 income year, the tax-free amount is limited to $10,638 (base amount) plus $5,320 (service amount) for each whole year of completed employment service to which the early retirement scheme payment relates. It should be noted that six months, eight months or even eleven months do not count as a whole year for the purposes of this calculation.

43. For the 2020-21 income year, the base amount and the service amount are yet to be determined at the date of publication of this Ruling. Therefore, employees should check ato.gov.au for these indexed amounts at the relevant time.

44. The total of the amount received on the termination of employment calculated in accordance with paragraph 16 of this Ruling may qualify as an early retirement scheme payment.

45. The total payment calculated in accordance with paragraph 16 of this Ruling will be measured against the limit in accordance with the formula mentioned in paragraphs 42 and 43 of this Ruling to determine the tax-free amount of the early retirement scheme payment.

46. The tax-free amount will:

·
not be an employment termination payment (ETP), and
·
not be able to be rolled over into a superannuation fund.

47. Any payment in excess of this limit will be an ETP and will be split into tax-free and taxable components. The tax-free component of an ETP includes the pre-July 83 segment of the payment. The tax-free component is not assessable income and is not exempt income.

48. The taxable component of the ETP will be taxed at various rates depending on the person's age. It should be noted that the 'whole of income cap' does not apply to any part of the early retirement scheme payment.

© AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA

You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).

Not previously issued as a draft

References

ATO references:
NO 1-HRF7GKZ

ISSN: 2205-5517

Business Line:  SEO

Legislative References:
ITAA 1997 82-135
ITAA 1997 82-135(e)
ITAA 1997 83-170
ITAA 1997 83-180
ITAA 1997 83-180(1)
ITAA 1997 83-180(2)
ITAA 1997 83-180(3)
ITAA 1997 83-180(3)(a)
ITAA 1997 83-180(3)(b)
ITAA 1997 83-180(3)(c)
ITAA 1997 83-180(5)
ITAA 1997 83-180(6)
ITAA 1997 995-1(1)
TAA 1953