ATO Interpretative Decision
ATO ID 2003/36 (Withdrawn)
Superannuation
Superannuation guarantee scheme: back payment of wagesFOI status: may be released
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This ATO ID is withdrawn because it is ambiguous.This document incorporates revisions made since original publication.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Does the back payment of wages to an ex-employee incur a liability under the Superannuation Guarantee (Administration) Act 1992 (SGAA)?
Decision
If the person has ceased employment with the employer at the time of the back payment, then no liability exists under the SGAA.
Facts
The taxpayer engaged employees under an award.
The taxpayer went into liquidation.
The taxpayer ceased trading.
It was identified that the taxpayer had underpaid its employees pursuant to the relevant award.
The taxpayer back pays its ex-employees.
Reasons for Decision
The superannuation guarantee charge is imposed on any superannuation guarantee shortfall of an employer in a year and the amount of the charge payable is equal to the amount of the superannuation guarantee shortfall (sections 5 and 6 of the Superannuation Guarantee Charge Act 1992).
The superannuation guarantee shortfall consists of three components, the first component comprising 'the total of the employer's individual superannuation guarantee shortfalls for the year' (section 17 of the SGAA).
When calculating an individual shortfall under section 19 of the SGAA, there must be salary or wages paid by an employer to an employee. Therefore, in order for there to be a shortfall, and therefore a liability to the charge, there must be an employer/employee relationship.
Employee is defined in section 12 of the SGAA and given its ordinary meaning and an expanded meaning. The ordinary meaning of employee is that a person ceases to be an employee when his/her employment is terminated. Section 12 of the SGAA does expand the definition of employee but it does not expand it to include a former employee.
As a former employee is not an employee for the purposes of the SGAA, there cannot be a superannuation guarantee shortfall. As there is no superannuation guarantee shortfall, then there cannot be a superannuation guarantee charge liability.
Date of decision: 14 January 2003
Legislative References:
Superannuation Guarantee Charge Act 1992
Section 5
Section 6
Section 12
Section 17
Section 19
Keywords
Superannuation guarantee scheme
Superannuation guarantee charge
Contributions for employees - definitions
Employer/employee relationship issues
Salary & wages income
ISSN: 1445-2782
| Date: | Version: | |
| 14 January 2003 | Original statement | |
| You are here | 5 November 2003 | Archived |
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