CHAPTER 5

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

CHAPTER 5

TARGETING AND EQUITY

Introduction

5.1 As noted in Chapter 1 of this report, the Government regards the introduction of the surcharge as a significant means of addressing current inequities that exist in superannuation, in particular, the greater level of advantage derived from the system by higher income earners.

5.2 Accordingly, the Government has set the threshold at which liability for the surcharge commences at a relatively high level, $70 000.

5.3 However, the Committee received a considerable volume of opinion during the inquiry, that argued that many people who are not in the target group would be required to pay the surcharge. Submissions and evidence identified two aspects that they considered would cause the surcharge to catch people it was not intended to affect. These were:

5.4 Several witnesses and submissions also questioned whether the surcharge legislation adequately addressed the Government's equity objectives, arguing that the surcharge proposal itself created new potential inequities. It was also suggested that there are a number of better methods of addressing equity issues in the superannuation system, particularly in regard to the taxation of benefits.

5.5 Areas of potential inequity identified in evidence included the following:

Tax File Number collection

5.6 The proposed collection method for the surcharge requires the ATO to carry out a cross matching exercise between taxation returns and tax file numbers (TFNs) provided to the ATO by superannuation providers. Under the provisions of the legislation, the providers are authorised to collect members' TFNs and send them to the ATO. If a member does not provide a TFN, surcharge is levied at the full rate of 15 per cent, regardless of the income of the member.

5.7 The Committee was told that this provision would lead to very large numbers of non-target taxpayers being charged the highest rate of surcharge. The Committee was advised that there are likely to be very substantial difficulties associated with collecting TFNs, for reasons that included the following:

5.8 Ms Louise Sylva, representing AMP Financial Services, was one of several witnesses who explained that many low income people would be caught by the surcharge because they thought it did not apply to them and did not comprehend the need to supply TFNs:

5.9 Several witnesses emphasised that the funds faced considerable difficulties in communicating the need to supply TFNs. A lack of English skills on the part of some fund members, particularly in some industry funds, was identified as a contributor to this problem.

5.10 Another major difficulty is that funds have no means of tracing some of their members because the funds do not have current address details. Mr Peter Downes of Jacques Martin explained:

5.11 Trustees of a number of funds told the Committee that they had encountered great difficulty in gathering TFNs in the past, despite repeated attempts to do so. All witnesses who gave evidence on this issue expected that initial compliance rates would be low and accordingly, many people outside the target group would be liable for the surcharge. The following selection of quotes illustrate the concerns expressed.

5.12 Mr Grahame Willis of the Metal Trades Industry Association, speaking about the Superannuation Trust of Australia, of which he is a director, commented:

5.13 Mr Ian Silk, Australian Retirement Fund, who indicated that less than two per cent of members had adjustable taxable incomes of $70 000 or more commented:

5.14 Mr Brett Westbrook, Fund Secretary, Transport Workers Union Superannuation Fund commented:

5.15 For many people in accumulation funds, receipt of a statement at the end of the year showing that they had been surcharged may operate as a prompt to comply with the legislation. However, Ms Robin Quinn, representing the NSW Government, advised the Committee that members of defined benefit schemes may not receive such a prompt and therefore will be unaware of the surcharge debt that will accumulate if they do not supply TFNs. She noted:

5.16 Mr Westbrook summarised the concerns of many who gave evidence about the possiblity that low income earners may be liable for the surcharge because they had not supplied TFNs. He told the Committee that such persons could ill-afford the surcharge:

5.17 Mr Richard Gilbert of the Investment Funds of Association of Australia, acknowledged that members could avoid paying surcharge relatively simply, if they complied with the provisions of the legislation that require TFNs to be provided. However, in the following exchange with Senator Alan Ferguson, he indicated that the complexity of today's superannuation system is a barrier:

5.18 As indicated in the preceding paragraphs, most witnesses who gave evidence on this matter indicated that they expected a low response rate to written requests for members to provide TFNs. The Committee also received evidence that funds considered that there were difficulties associated with collecting TFNs by phone, because of the requirement to advise members of their rights to refuse information. Ms Noelle Kelleher, appearing before the Committee representing the Australian Society of Certified Practicing Accountants, told the Committee:

Government and ATO initiatives to facilitate use of TFNs

5.19 The legislation contains a number of measures to facilitate the wider use of TFNs to avoid persons who are not in the surcharge target group from paying the surcharge. These provisions are described in Chapter 2 of this report.

5.20 Officers of the Australian Taxation Office also provided the Committee with information about measures to minimise lower income earners being inadvertently caught.

5.21 Mr Chris Casey, Assistant Commissioner, Superannuation Systems, described a number of the strategies that the ATO will adopt to maximise the provision of TFNs:

5.22 Another strategy is the use of employment declaration forms to make a match between a person and their employers' name and address, in order to address the issue of non-current address details of fund members. Mr Casey cautioned, however, that while the legislation allowed such a use of information, the ATO had not yet discussed with industry the possibility of including employer details on the reports due on 15 December. [11]

5.23 Mr Michael Monaghan emphasised that the ATO was very conscious of the TFN issue and is working actively to overcome the problems that have been identified:

5.24 Mr Monaghan told the Committee that the ATO did not underestimate the difficulties associated with TFN collection, including problems associated with obtaining TFNs from persons who had communication difficulties:

Definition of assessable income

5.25 For the purposes of administering the surcharge, the definition of assessable income includes certain termination payments or 'golden handshakes'. The Committee received evidence that the inclusion of termination payments and a number of other items in the definition of assessable income would result in lower income persons being incorrectly targeted for surcharge payments.

5.26 Mr Kevin Casey, representing the AMP Society, was amongst those who argued that the inclusion of termination payments in assessable income would make many people who were not high income earners liable for the surcharge. He commented that persons who had just lost their jobs and received a redundancy payment could find themselves in this category:

5.27 Similarly, ASFA and others contended that the inclusion of ETPs in assessable income meant that many people in their year of retirement will suddenly find themselves classified as high income earners. ASFA acknowledged that the tax free portion of an employer redundancy payment is excluded, but offered the opinion that public sector employees who took a redundancy package would be particularly hard hit:

5.28 ASFA concluded that the inclusion of ETPs and other "lumpy income" has the potential to apply the surcharge on low and middle income Australians, despite the express objects of the main Bill for the surcharge to be assessed and collected on 'high income individuals'. [16]

5.29 Mr Raymond Stephens, representing William M. Mercer Pty Ltd, was also among those who contended that the inclusion of eligible termination payments (ETPs) gave rise to a number of anomalies. He advised the Committee that the treatment of ETPs under this legislation differed from how other tax legislation treated these payments. He noted that:

5.30 Mr Stephens suggested that removing these one-off lump sums would eliminate a number of anomalies and simplify a number of provisions in the Bills.

Government position on assessable income

5.31 The Committee sought information from officers of the ATO on this issue. Mr Mark O'Connor, Executive Officer, Legislative Services, explained the Government's policy decision in the following terms:

5.32 The ATO advised that bona fide redundancy payments were not included in the assessment, Mr Anthony Regan, Acting Tax Counsel, Legislative Services, stating that:

5.33 In his press release on the Budget, the Treasurer explained the Government's position with regard to golden handshakes. He said that the definition of 'golden handshakes' for the purposes of the surcharge:

5.34 The Treasurer noted that from 1 July 1994 bona fide redunduncy and approved early retirement payments have been exempt from income tax up to a limit which is indexed annually to average weekly ordinary time earnings. For the 1996-97 year the income tax exemption limits are $4348 plus $2174 per year of completed service with the employer.

5.35 The Treasurer advised that he considered these limits to be generous enough to ensure that the majority of such payments would be outside the scope of the golden handshake definition entirely. However, he emphasised that it was necessary to include the excess of payments over these limits in the definition to prevent such payments being used as a method of avoiding the surcharge.

5.36 There are also transitional measures in the Bill to ensure there is no retrospective application of the surcharge to golden handshakes received within five years of the budget announcement.

5.37 The Government is of the view that this is a balanced approach which should:

Uneven income patterns

5.38 In its submission to the Committee, ASFA noted that ATO statistics show that over 100 000 individuals a year average their income for income tax purposes. ASFA told the Committee that the legislation apparently contains no provision for averaging of income or contributions for surcharge purposes.

5.39 ASFA and a number of other witnesses told the Committee that there are a number of professions where income levels varied greatly from year to year, and a single year's assessable income did not give an accurate indication of their true situation. Examples of persons who fall into this category include primary producers, sports people, artists, musicians, consultants and other self-employed people. Ms Rosemary Vilgan of ASFA told the Committee that:

5.40 Representatives of the Institute of Chartered Accountants made a similar point in respect of operators of small businesses. Mr Robert Brown, National Councillor, told the Committee that due to variations in the profitability of many small businesses, small business operators generally have a very small window of opportunity to contribute to superannuation. He argued that imposing the surcharge on these individuals severely limits their ability to provide for their retirement needs. [22]

5.41 Ms Glenese Keavney of the Financial Planning Association (FPA) was among those who shared Mr Brown's concerns about small businesses:

5.42 Several witnesses argued that women were particularly penalised. For example, ASFA told the Committee that many women with career gaps and perhaps a late start in the higher paid part of the labour force will find it difficult to catch up, particularly with age based limits on contributions. ASFA argued that these groups need to be encouraged to use their 'good years' to save for retirement. [24]

5.43 Evidence given by Ms Keavney succinctly summarises the position of many who expressed concerns about the impact of the surcharge on people with uneven income patterns:

Other issues

Costs to non-target members

5.44 As described in Chapter 4, the Committee received a considerable volume of evidence concerning the allocation of compliance costs across superannuation fund memberships. Witnesses and submittors pointed out that a substantial proportion of the compliance costs would be borne by persons who were outside the surcharge target group.

5.45 Submittors questioned the equity of such an arrangement, as increases in fund operating costs would reduce the benefit paid to all members of the fund, not just those in the higher assessable income brackets.

Effective tax rates

5.46 The Committee received several submissions that argued that the imposition of the surcharge imposed excessively high overall rates of tax on some individuals.There were several different aspects to this concern. Mr Deane Prior, appearing on behalf of the South Australian Government, illustrated his point with the example of a judge on the South Australian judges' pension scheme:

5.47 5.48 Mr Raymond Stevens, a Director and Principal of William M. Mercer Pty. Ltd., was among a number of others who argued that the surcharge in some circumstances led to unacceptably high rates of tax. Mr Stevens told the Committee that :

5.49 William M. Mercer developed their example in detail in their submission to the Committee as follows:

Alternative methods of addressing equity issues

5.50 The Committee received a large number of suggestions for alternative approaches to addressing equity issues within the superannuation system which, it was argued, would be more effective than the approach in the surcharge legislation. Briefly, these suggestions can be categorised as follows:

5.51 Time constraints on the inquiry and preparation of this report prevent the Committee from explaining these suggestions in any detail.

 

[Go to Chapter 6]

Footnotes

[1] Evidence, p. 48-9.

[2] Evidence, p. 36.

[3] Evidence, p. 158.

[4] Evidence, p. 262.

[5] Evidence, p. 309.

[6] Evidence, p. 12.

[7] Evidence, p. 312.

[8] Evidence, p. 125.

[9] Evidence, p. 96.

[10] Evidence, p. 292.

[11] Evidence, p. 313.

[12] Evidence, p. 294.

[13] Evidence, p. 296.

[14] Evidence, p. 56.

[15] ASFA submission, p. 15.

[16] ASFA submission, p. 15.

[17] Evidence, p. 180.

[18] Evidence, p. 298.

[19] Evidence, p. 299.

[20] The Hon. Peter Costello, MP, Treasurer, Press release no.5, 5 Feb 1997,p. 3.

[21] Evidence, p. 64.

[22] Evidence, pp. 88-89.

[23] Evidence, p. 117.

[24] ASFA submission, p. 14.

[25] Evidence, p. 117.

[26] Evidence, p. 16.

[27] Evidence, p. 183.

[28] Submission, William. M Mercer Pty Ltd, p. 13.