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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of administratively binding advice

Authorisation Number: 1012485518394

Advice

Subject: Superannuation Guarantee

Is the partnership which is registered for GST and PAYG withholding, liable for superannuation guarantee on salary paid to an employee, who is a non- resident of Australia for income tax purposes?

No

Detailed reasoning

SUPERANNUATION GUARANTEE (ADMINISTRATION) ACT 1992 (SGAA) - SECT 27

Subsection 27(1) of the SGAA states the following salary or wages are not to be taken into account for the purpose of making a calculation under section 19 of the SGAA.

    (1) The following salary or wages are not to be taken into account for the purpose of making a calculation under section 19:

      (a) salary or wages paid to an employee who is 70 or over;

      (b) salary or wages paid to an employee who is not a resident of Australia for work done outside Australia (except to the extent that the salary or wages relate to employment covered by a certificate under section 15C);

      (c) salary or wages paid by an employer who is not a resident of Australia to an employee who is a resident of Australia for work done outside Australia;

      (ca) salary or wages paid by an employer to an employee who is not a resident of Australia for work done in the Joint Petroleum Development Area (within the meaning of the Petroleum (Timor Sea Treaty) Act 2003 );

      (d) salary or wages paid to an employee who is a prescribed employee for the purposes of this paragraph;

      (e)salary or wages prescribed for the purposes of this paragraph.

    (2) If an employer pays an employee less than $450 by way of salary or wages in a calendar month, the salary or wages so paid are not to be taken into account for the purpose of making a calculation, in relation to the employer and the employee, under section 19.

The partnership is not liable for superannuation guarantee on salary paid to an employee, who is not a resident of Australia for income tax purposes as stated in section 27 (b) above.


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