CHAPTER 2

Twenty-third Report of the Senate Select Committee on Superannuation
SUPERANNUATION SURCHARGE LEGISLATION
TABLE OF CONTENTS

CHAPTER 2

THE SURCHARGE LEGISLATION

Introduction

2.1 The package of legislation introduced by the Government imposes a surcharge of up to 15 per cent on all employer and deductible personal superannuation contributions made by, or for, high income earners with assessable incomes over $70 000. The legislation also imposes a similar surcharge payment on "golden handshakes".

2.2 The thresholds at which liability for surcharge commences and reaches its maximum will be indexed from 1997-98 to the increase in full-time adult average weekly ordinary times earnings.

2.3 The surcharge is to have effect from budget night 1996 and applies to contributions made after the budget announcement. Accordingly, the surcharge does not affect any superannuation contributions or termination payments made prior to that night, regardless of the income of the recipient.

2.4 About 355 000 taxpayers are expected to be affected by the surcharge. [1]

2.5 An important feature of the legislation is that the superannuation provider, not the employee, is liable to pay the surcharge.

How are surcharge payments calculated?

2.6 Liability for surcharge in respect of superannuation contributions and termination payments commences at an "assessable income" of $70 000. Effectively, it increases by 1 per cent for each additional $1 000 of assessable income above the $70 000 threshold, reaching a maximum of 15 per cent at $85 000. For example, a person with an assessable income level of $75 500 will be liable for a surcharge of 5.5 percent on their employer and/or deductible superannuation contributions.

2.7 "Assessable income" for the purposes of the surcharge is defined in the legislation to mean taxable income plus all employer and tax deductible personal superannuation contributions. The definition of assessable income also includes termination payments, with some exceptions as described later in the chapter.

2.8 Defined benefits schemes require a different approach to assessing surcharge liabilities. If the contributions are held under a defined benefits scheme, the surcharge is payable on an amount calculated by reference to a notional surchargeable contributions factor determined for the member and the member's annual salary for the purposes of the scheme. [2]

2.9 Unfunded defined benefits schemes, such as those that apply to parliamentarians, the judiciary and many State and Commonwealth public sector employees, are not funded until the benefit is paid. Accordingly, the surcharge cannot be collected from these schemes each year.

2.10 To address this issue, the Government has decided that the surcharge liability in respect of individuals in these schemes is to be accumulated and will be payable by the superannuation provider at the time the affected member's benefit commences to be paid. [3] Interest will be payable on the accumulated debt, and will be charged at the 10 year bond rate, currently 7.94 per cent. [4]

How will the surcharge be collected?

2.11 Each year, superannuation providers will be required to send to the Australian Taxation Office (ATO) details of contributions received in relation to each member. The reporting date will be 31 October each year.

2.12 The legislation enables the providers to seek tax file numbers from members for this purpose. While there is no obligation on members to provide their TFNs, contributions made on their behalf and termination payments will be surcharged at the full rate of 15 per cent if the TFN is not supplied to the provider.

2.13 The legislation also contains a number of provisions to facilitate the provision of TFNs. (See paras 2.37 - 2.41 below)

2.14 Having received the TFNs, the ATO will then cross match the information supplied by superannuation providers with tax returns lodged by taxpayers. When the ATO determines that a member's assessable income is over the surcharge threshold and there is a surcharge liability, the ATO will assess the amount of surcharge and will periodically send assessments to the provider who holds the member's contributions.

2.15 The superannuation provider must then debit the member's superannuation account with the surcharge liability and send the amount owing to the ATO within one month of the assessment.

2.16 The legislation also provides for payment of an advance instalment of surcharge liability from 1998, payable on 15 June of each year. The advance instalment will be 50 per cent of the surcharge assessed in the previous year.

2.17 In the second reading speech, Mr Miles advised the House that the Government had considered several alternative measures of collecting the surcharge that have been suggested. He said that the alternatives suggested all involve an unacceptable increase in compliance costs for employers, small business and all Australians. He explained the Government's position in the following terms:

Other major features of this legislation

2.18 Other significant features of this legislation include:

How does the surcharge alter the taxation of superannuation?

Combined effect of tax plus surcharge

2.19 Deductible contributions made by employers and self employed persons to superannuation funds are currently taxed at a rate of 15 per cent. This tax was introduced in May 1988. The surcharge will raise the effective rate of taxation on contributions for persons with an assessable income in excess of $70 000 to 30 per cent.

Taxation of Eligible Termination Payments (ETPs)

2.20 The taxation treatment of ETPs is highly complex and the following is a brief summary of the current taxation regime.

2.21 ETPs include amounts payable on retirement, such as superannuation payments, other than pensions or annuities, and also other amounts paid to a person on ceasing employment, such as 'golden handshakes' and payment for unused sick leave.

2.22 The taxation treatment of ETPs changed considerably in 1983. Prior to that date, ETPs were generally taxed at the rate of 5 per cent. For ETPs that relate to service after 1 July 1983, there are a number of components of the payment which are taxed at different rates. Without addressing each component, the effective result is that ETPs qualify for concessional tax treatment and are taxed at between 20 per cent and 30 per cent depending on the mix of components in the ETP.

2.23 There is further concessional tax treatment for those who receive an ETP at age 55 or later. Such people will be taxed at either a zero rate or 15 per cent, depending on the component of the ETP. This concession only applies to a certain threshold, currently approximately $86 500.

The Bills

2.24 The surcharge legislation consists of the following Bills:

Superannuation Contributions Surcharge (Assessment and Collection) Bill

2.25 This Bill provides for the assessment and collection of the surcharge on superannuation contributions paid to superannuation providers in respect of "high income" individuals. The Bill has seven parts, the features of which are described in the following paragraphs.

2.26 Part 1 of the Bill includes a simplified outline of the Bill.

2.27 Part 2 sets out the liability to surcharge and the advance payment system. This section:

2.28 Part 3 of the Bill:

2.29 Part 3 also gives the Commissioner for Taxation power to use tax file numbers for the purposes of the legislation and describes how objections against assessments are to be resolved.

2.30 Part 4 of the Bill deals with the recovery of unpaid surcharge, advance instalments, interest or late payment penalties.

2.31 Part 5 of the Bill deals with administration including secrecy provisions and the divulgence of information.

2.32 Part 6 of the Bill contains miscellaneous provisions. Key provisions include:

2.33 Part 7 of the Bill contains the definitions used for the purposes of the Act.

Superannuation Contributions Surcharge (Consequential Amendments) Bill

2.34 This Bill makes consequential amendments to five Acts as a result of the decision to introduce the surcharge. It consists of five schedules, each dealing with amendments to a particular Act. The Acts amended are as follows:

2.35 Key features of this Bill are as follows:

Schedule 1 - amendments to the Income Tax Assessment Act

2.36 Amendments in Schedule 1 extend the use of the Tax File Number (TFN) system to allow TFNs quoted for superannuation or taxation purposes to be used for surcharge purposes. Where a TFN is quoted to a superannuation fund for the purpose of calculating tax to be deducted from an early termination payment (ETP), that quotation will be taken as having been quoted for the purposes of the surcharge legislation.

Schedule 2 - amendments to the Retirement Savings Accounts Act

2.37 Schedule 2 amends Part 11 of the RSA Act to provide for the quotation, provision and use of the TFNs of RSA holders and applicants for the purposes of the legislation. These amendments are designed to avoid individuals being subject to the surcharge simply because they have not provided their TFN to the RSA provider.

Schedule 3 - amendments to the Superannuation Industry (Supervision) Act

2.38 Schedule 3 deals with the use of TFNs for surcharge purposes. It permits super fund members to quote TFNs directly to the fund or scheme trustees for the purposes of the surcharge. Trustees are enabled to request members' TFNs.

2.39 The schedule includes provisions that permit borrowings where surcharge assessments or instalment payments cannot be readily met from fund assets.

2.40 Part 25A of the SIS Act is amended to allow the quotation, provision and use of TFNs to maximise the use of TFNs quoted to trustees in order to minimise the number of surcharge assessments raised purely due to the non-quotation of TFNs.

2.41 Effectively, this means that where an employee has already quoted a TFN to an employer fund for the purposes of the SIS legislation, the employer may pass the TFN on to the trustee, provided the employee has the option of objecting. The employer must give the employee 30 days notice of intention to pass on the TFN and if the employee does not respond, consent will be taken as having been granted. Similarly, the trustee is permitted to pass the TFN on to another trustee, RSA provider or the ATO, subject to the permission of the beneficiary.

Schedule 4 - amendments to the Superannuation (Resolution of Complaints) Act

2.42 Amendments in this schedule enable the Superannuation Complaints Tribunal to deal with complaints about the calculation of superannuation contributions subject to the surcharge.

Schedule 5 - Amendments to the Taxation (Interest on Overpayments and Early Payments) Act

2.43 Amendments in this schedule provide that where a person has paid the assessed amount of surcharge and as a result of an amendment, the surcharge liability is reduced, then the Commissioner for Taxation pays interest on the amount of the reduction.

2.44 The rate of interest payable is 4 per cent less than would have been payable than the rate of interest provided for in Section 214 of the Income Tax Assessment Act.

2.45 It is important to note that no interest is payable in respect of amendments made as a result of the late provision of TFNs. For example, if an individual does not supply a TFN and consequently is required to pay the surcharge, no interest is payable on any amendment made if and when the TFN is eventually provided. In such a situation, the Commissioner will simply refund the surcharge payment.

Superannuation Contributions Surcharge Imposition Bill

2.46 This Bill imposes the surcharge and declares the rate at which it is to be collected.

2.47 Under the provisions of this Bill, liability for surcharge commences when a member's adjusted taxable income exceeds $70 000. The rate at which the surcharge is imposed rises by 1 percentage point per $1 000. For example, an individual with an adjusted taxable income of $82 500 is liable for a surcharge of 12.5 percent.

2.48 If the members' adjusted taxable income is $85 000 or more, the rate of surcharge is 15 per cent of his or her surchargeable contributions. This amount is indexed by movements in average weekly earnings.

2.49 Section 5(3) provides that if a member has not provided a TFN and the Commissioner for Taxation has not found it out by other means (for example, through the provisions described in paragraphs 2.37 to 2.41 above), the rate of surcharge is set at the maximum of 15 per cent, regardless of income level.

Termination Payments Surcharge (Assessment and Collection) Bill

2.50 This Bill provides for the assessment and collection of surcharge on 'golden handshakes'. These are described as

2.51 The Bill includes provisions that are intended to avoid any retrospective application of the surcharge to golden handshakes. A transitional measure will apply to golden handshakes received within five years of the 1996-97 budget announcement. The surchargeable portion is only that part of the golden handshake which relates to the employee's post 20 August 1996 service with the particular employer. [7]

2.52 The Bill is divided into six parts:

Part 1 - Preliminary details

2.53 This part that provides an outline of the objects and purpose of the Bill.

Part 2 - Liability to surcharge

2.54 This part has the following functions:

2.55 Key features include:

Part 3 - Assessment and collection of surcharge

2.56 The provisions of this section:

Part 4 - Recovery of unpaid surcharge and advance instalments

2.57 The purpose of the provisions of this part of the Bill is to provide for;

Part 5 - Administration

2.58 This part of the Bill provides for:

Part 6 - Miscellaneous.

2.59 The provisions in this part set out a number of standard requirements for:

Termination Payments Surcharge Imposition Bill

2.60 This is a short Bill that imposes the surcharge on termination payments. It provides for a method of determining the rate at which termination payments surcharge must be paid that is similar to that in the Superannuation Contributions Surcharge Imposition Bill.

Superannuation Contributions Surcharge (Application to the Commonwealth) Bill

2.61 This Bill is intended to ensure that the superannuation contributions surcharge applies to all non-contributory superannuation schemes operated by the Commonwealth. In particular, the Bill is intended to address the circumstances of judges appointed by the Commonwealth. The Bill provides that the trustee of such a scheme is not to be taken to be an officer, authority or agent of the Commonwealth.

2.62 This Bill also provides that the Minister for Finance may give directions in relation to the discharge of superannuation contributions surcharge liability of the trustee of certain Commonwealth unfunded defined benefit superannuation schemes. Compliance with a direction by the Minister for Finance in relation to the discharge of surcharge liability is taken to be a payment of surcharge by the trustee. [9]

Superannuation Contributions Surcharge (Application to the Commonwealth - Reduction of Benefits) Bill

2.63 The Bill provides that the trustee of a Commonwealth non-contributory unfunded defined benefits superannuation scheme may reduce a member's benefits to pay a superannuation contributions surcharge liability.

2.64 The provisions of this Bill are particularly intended to address provisions of the Constitution that protect the remuneration of a current judge from reduction during his or her continuation in office. This Bill ensures that new appointees are subject to the surcharge and is intended to ensure that the application of the surcharge does not result in a contravention of the Constitution. [10]

 

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Footnotes

[1] House of Representatives, Hansard, 13 February 1997, p. 625.

[2] Superannuation Contributions Surcharge (Assessment and Collection) Bill 1997, Part 1.

[3] House of Representatives, Hansard, 13 February 1997, p. 625.

[4] Financial Review, 18 March 1997.

[5] House of Representatives, Hansard, 13 February 1997, p. 625.

[6] House of Representatives, Hansard, 13 February 1997, p. 627.

[7] House of Representatives, Hansard, 13 February 1997, p. 627.

[8] Explanatory Memorandum

[9] House of Representatives, Hansard, 6 March 1997, p. 1818.

[10] House of Representatives, Hansard, 6 March 1997, p. 1819.