Edited version of your written advice

Authorisation Number: 1012779722504

Ruling

Subject: Genuine redundancy

Question

Is any part of the payment in lieu of notice the tax-free part of a genuine redundancy payment?

Answer

Yes

This ruling applies for the following periods

Year ending 30 June 20XX

The scheme commenced on

1 July 20XX

Relevant facts and circumstances

You commenced employment with the Employer during 20XX-XX income year.

Your employment was terminated during the 20XX-XX income year.

You were terminated before you reached 65 years of age.

The following is a breakdown of your entitlements, as show on your final pay slip:

Component	Payment
Holiday pay	Y
Payment in lieu of notice/ termination notice	X

You state that you would not have been entitled to the payment in lieu of notice had you voluntarily resigned.

None of the payments received were for payment in lieu of superannuation.

At the time of dismissal there was no arrangement between you and the Employer or between the Employer and another person, to employ you after the dismissal.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 82-130

Income Tax Assessment Act 1997 subsection 82-130(4)

Income Tax Assessment Act 1997 section 82 135

Income Tax Assessment Act 1997 Paragraph 82-135(c)

Income Tax Assessment Act 1997 Paragraph 82-135(d)

Income Tax Assessment Act 1997 Paragraph 82-135(e)

Income Tax Assessment Act 1997 section 83-10

Income Tax Assessment Act 1997 section 83-15

Income Tax Assessment Act 1997 section 83 -80

Income Tax Assessment Act 1997 section 83-85

Income Tax Assessment Act 1997 section 83-170

Income Tax Assessment Act 1997 subsection 83-170(2)

Income Tax Assessment Act 1997 subsection 83-170(3)

Income Tax Assessment Act 1997 section 83-175

Income Tax Assessment Act 1997 subsection 83-175(1)

Income Tax Assessment Act 1997 subsection 83-175(2)

Income Tax Assessment Act 1997 subsection 83-175(3)

Income Tax Assessment Act 1997 subsection 83-175(4)

Reasons for decision

Summary

The payment in lieu of notice (X) is a genuine redundancy payment. As this amount is more than your tax free amount, in respect of the genuine redundancy of this employment, only part of the amount is non-assessable and non-exempt income.

Genuine redundancy

A payment made to an employee is a genuine redundancy payment (GRP) if it satisfies all the conditions set out in section 83-175 of the Income Tax Assessment Act 1997 (ITAA 1997). This section states:

(1) A genuine redundancy payment is so much of a payment received by an employee who is dismissed from employment because the employee's position is genuinely redundant and exceeds the amount that could reasonably be expected to be received by the employee in consequence of the voluntary termination of his or her employment at the time of dismissal.

(2) A genuine redundancy payment must satisfy the following conditions:

(a) the employee is dismissed before the earlier of the following:

(i) the day he or she turned 65;

(ii) if the employees employment would have terminated when he or she reached a particular age or completed a particular period of service the day he or she would reach the age or complete the period of service (as the case may be);

(b) if the dismissal was not at arms length the payment does not exceed the amount that could reasonably be expected to be made if the dismissal were at arms length;

(c) at the time of the dismissal, there was no arrangement between the employee and the employer, or between the employer and another person, to employ the employee after dismissal.

(3) However, a genuine redundancy payment does not include any part of a payment that was received by the employee in lieu of superannuation benefits to which the employee may have become entitled at the time the payment was received or at a later time.

Payments not covered

(4) A payment is not a genuine redundancy payment if it is a payment mentioned in section 82-135 (apart from paragraph 82-135(e)).

Subsection 82-135 of the ITAA 1997 includes (among others):

• superannuation benefits;

• the payment of a pension or annuity; and

• unused annual leave (paragraph 82-135(c)) or long service leave payments (paragraph 82-135(d)).

As such, the holiday pay (Y) is not genuine redundancy payments pursuant to subsection 82-135(4) of the ITAA 1997. The taxation treatment of this payment will be addressed in due course.

The payment in lieu of notice will be addressed below.

Your employment termination letter and final pay slip advised that you were entitled to payment in lieu of notice totalling X gross.

According to the employment termination letter provided, your employment was terminated in the 20XX-XX income year. The stated reason for termination was redundancy. As such, we can deduce that your employment was terminated because your position was made genuinely redundant.

Further, you state that a payment in lieu of notice would not have been made to you had you voluntarily resigned. As such, subsection 83-175(1) of the ITAA 1997 has been satisfied.

The three conditions pertaining to subsection 83-175(2) of the ITAA 1997 have been satisfied as:

• You were dismissed before you reached 65 years of age;

• The dismissal was made at arms length; and

• At the time of dismissal, there was no arrangement between yourself and the employer, or between the employer and another person, to employ you after the dismissal.

A further requirement, as set out in subsection 83-175(3) of the ITAA 1997, requires that no part of the payment was received by the employee in lieu of superannuation benefits to which the employee may have become entitled at the time the payment was received or at a later date. As none of the payments received were for payment in lieu of superannuation, this requirement is satisfied.

Lastly, the redundancy payment and payment in lieu of notice are not excluded from the definition of a GRP. As such, subsection 83-175(4) of the ITAA 1997 has been satisfied.

As all the conditions under section 83-175 of the ITAA 1997 have been satisfied, it is accepted that the payment in lieu of notice is a genuine redundancy payment.

Tax-free amount

Subsection 83-170(2) of the ITAA 1997 provides that so much of the genuine redundancy payment that does not exceed the amount worked out using the formula prescribed in subsection 83-170(3) of the ITAA 1997 is not assessable income and is not exempt income. Any amount in excess of the tax-free amount is taxed as an employment termination payment. The formula for working out the tax-free amount is:

Base amount + (Service amount × Years of service)

For the 20XX-XX income year:

Base amount means $9,514;

Service amount means $4,624; and

Years of service means the number of whole years in the period, or sum of periods, of employment to which the payment relates.

As the payment of X is more than the tax-free amount of a genuine redundancy payment, only part of the amount is the tax-free part of a genuine redundancy payment. This tax-free amount is non-assessable and non-exempt income under subsection 83-170(2) of the ITAA 1997.

Consequently the tax-free part of X is not required to be included in your income tax return for the 20XX-XX income year.

Taxation treatment of unused annual leave

Unused annual leave would ordinarily be included in assessable income under section 83-10 of the ITAA 1997 and subject to marginal rates of tax.

However, as this payment was made in connection with a genuine redundancy payment, section 83-15 of the ITAA 1997 allows a tax offset to ensure that the rate of tax on this amount (Y) does not exceed 30%.