ATO Interpretative Decision

ATO ID 2002/309

Superannuation

Superannuation Guarantee Scheme: Superannuation Guarantee Charge
FOI status: may be released

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Status of this decision: Decision Current

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Can the Commissioner remit any components of the Superannuation Guarantee Charge (SGC)?

Decision

No, the Commissioner cannot waive any components of the SGC as there is no discretion available in the Superannuation Guarantee (Administration) Act 1992 (SGAA).

Facts

The taxpayer is an employer who made insufficient superannuation contributions to a complying superannuation fund for its employees in relation to a year of income. As a result, the employer is liable to pay SGC in relation to the year of income.

Reason for Decision

Section 16 of the SGAA states that the SGC imposed on an employer's superannuation guarantee shortfall for a year must be paid by the employer. This shortfall is defined under section 17 of the SGAA. The shortfall consists of three components.

1.: The total of the employer's individual superannuation guarantee shortfalls for the year. Section 19 of the SGAA specifies the calculation of this component.
2.: Nominal interest component. Section 31 of the SGAA specifies the calculation of this component.
3.: Administration fee component. Section 32 of the SGAA specifies the calculation of this component.

Where a shortfall exists, there is no discretion in the SGAA for the Commissioner to remit or waive any part of the SGC. This was considered in Jarra Hills Pty Ltd v. FC of T 37 ATR 1022, 97 ATC 2132. It was held that there was no provision in the legislation giving a discretion to either the Commissioner or Tribunal to reduce or remit the SGC. Therefore the Commissioner has no power to remit any components of the SGC.

Date of decision: 19 July 2001

Legislative References:
Superannuation Guarantee (Administration) Act 1992
   Section 16
   Section 17
   Section 19
   Section 31
   Section 32

Case References:
AAT Case 12,229; Jarra Hills Pty Ltd v. Federal Commissioner of Taxation
37 ATR 1022
97 ATC 2132

Keywords
Superannuation guarantee charge Superannuation guarantee penalties
Superannuation guarantee shortfalls

Siebel/TDMS Reference Number: DW226510; 1-5JJNNID; 1-8FXIPKP; 1-JT71BGC

Business Line: Superannuation

Date of publication: 28 March 2002
Date reviewed: 6 November 2019

ISSN: 1445-2782

history

	Date:	Version:
You are here →	19 July 2001	Original statement
	1 July 2026	Archived

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