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Edited version of private advice

Authorisation Number: 1012648726803

Advice

Subject: Administratively binding advice - superannuation guarantee

Question 1

Will a motor vehicle allowance (MVA) paid by the Employer to employees who rely on the use of their vehicle during the course of their employment ( referred to as Category 1 employees) be considered part of ordinary time earnings (OTE) as defined in subsection 6(1) of the Superannuation Guarantee (Administration) Act 1993 (SGAA)?

Advice: No, please see 'Reasons for decision'.

Question 2

Will a MVA paid by the Employer to employees who do not rely on the use of their vehicle during the course of their employment (referred to as Category 2 employees) be considered part of OTE as defined in subsection 6(1) of the SGAA?

Advice: Yes, please see 'Reasons for decision'.

This advice applies for the following period

After 1 July 2014

Relevant facts

Your advice is based on the facts stated in the description of the scheme that is set out below. If your circumstances are significantly different from these facts, this advice has no effect and you cannot rely on it. The fact sheet has more information about relying on ATO advice.

Relevant legislative provisions

Superannuation Guarantee (Administration) Act 1993 subsection 6(1)

Reasons for decision

Summary

The payment of the MVA to Category 1 employees is an expense allowance. It is paid to Category 1 employees with a reasonable expectation that the employee will fully expend the money in the course of providing their services. An expense allowance does not form part of the salary or wages of the employee and therefore cannot form part of ordinary time earnings for Category 1 employees of Employer.

The payment of the MVA to Category 2 employees is not associated with an expected expense, but rather as a negotiated benefit as part of a salary package. The Category 2 employees are not expected to use their vehicles during the course of their employment and therefore, in their case, there is no expectation that the MVA will be fully expended in the course of their employment.

Detailed reasoning

The SGAA places a requirement on all employers to provide a minimum level of superannuation support for their eligible employees by the quarterly due date, or pay the superannuation guarantee charge. The minimum level of support is calculated by multiplying the charge percentage (currently 9.25% and 9.5% from 1 July 2014) by each employee's earnings base.

From 1 July 2008, an employer must use OTE as defined in subsection 6(1) of the SGAA as the earnings base to calculate the minimum superannuation contributions for their employees. This ensures that all employees are treated the same for superannuation purposes.

Definition of ordinary time earnings

Subsection 6(1) of the SGAA defines OTE in relation to an employee to mean:

(a) the total of:

(i) earnings in respect of ordinary hours of work other than earnings consisting of a lump sum payment of any of the following kinds made to the employee on the termination of his or her employment:

(A) a payment in lieu of unused sick leave;

(B) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997; and

(ii) earnings consisting of over-award payments, shift-loading or commission; or

(b) if the total ascertained in accordance with paragraph (a) would be greater than the maximum contribution base for the quarter-the maximum contribution base.

Superannuation Guarantee Ruling SGR 2009/2 Superannuation guarantee: meaning of the terms 'ordinary time earnings' and 'salary or wages' (SGR 2009/2) explains that an employee's 'ordinary hours of work' are the hours specified as ordinary hours of work under the relevant award or agreement that governs the employee's conditions of employment and highlights that any hours worked in excess of, or outside the span those specified ordinary hours of work are not part of the employee's 'ordinary hours of work'. In particular, the ruling states that:

Accordingly, in line with the above, all amounts of earnings in respect of employment should be considered to be in respect of the employee's ordinary hours of work unless these are remuneration for overtime or other hours that are not ordinary hours of work.

Allowances

An allowance is a payment of a definite predetermined amount to cover an estimated expense. Generally it is paid regardless of whether the employee incurs the expected expense and the employee has the discretion whether or not to expend the allowance.

Paragraph 27 of SGR 2009/2 relates to certain specific kinds of payments that are OTE. Paragraph 27 states:

Paragraph 65 of SGR 2009/2 relates to certain payments that are 'salary or wages'. Paragraph 65 states:

Paragraphs 72 of SGR 2009/2 relates to expense allowances and reimbursements and states:

Paragraph 266 of SGR 2009/2 which is in the explanation states:

Therefore, in order for MVA to be deemed an expense allowance it is necessary to establish whether there is a reasonable expectation that the employee will fully expend the money in the course of providing services. If an allowance is paid unconditionally, that is regardless of whether the employee actually incurs the cost, it suggests that the allowance is not an expense allowance.

Application to your circumstances

In your case:


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