CHAPTER 10

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

CHAPTER 10

CONCLUSIONS AND RECOMMENDATIONS

Government Senators' conclusions and recommendation

10.1 The following paragraphs are the views of Senator John Watson (Chairman) and Senators Alan Ferguson and Julian McGauran.

10.2 The Government Senators acknowledge all those persons who wrote letters, prepared submissions and gave oral evidence at the public hearings.

10.3 The views have been fully considered by the Government. The Government Senators believe no better alternative collection mechanism to the proposed arrangements has been identified from the extensive consultations.

10.4 The Government Senators note the Treasurer's comments that the Government will review the constitutional opinion offered by Mr Dennis Rose AM, QC.

10.5 The current concessional treatment of superannuation tends to favour higher income earners at the expense of lower income earners.

10.6 The Government Senators believe it is a proper and legitimate objective to reduce inequity in Australia's superannuation system, and this will be achieved through the surcharge legislation.

Recommendation

Government Senators therefore recommend that the Bills be passed, subject to the technical amendments to be put forward by the Government.

(SIGNED)

Senator John Watson (Chairman) Senator Alan Ferguson Senator Julian McGauran

 

Non-Government Senators' Conclusions and Recommendations

 

10.7 The following paragraphs are the views of Senators Lyn Allison, Stephen Conroy, Chris Evans and the Hon. Nick Sherry (Deputy Chairman).

10.8 Labor Opposition and Australian Democrat Senators note a previous policy statement made by the current Treasurer, the Hon. Peter Costello, MP, in November 1995. Mr Peter Downes of Jacques Martin drew this to the attention of the Committee:

10.9 Labor Opposition and Australian Democrat Senators note that on the John Laws program on 25 February 1997 Mr Costello, the Treasurer called the surcharge a tax.

10.10 This was later repeated by Senator Kemp who called the surcharge a tax on the PM program on 12 March 1997.

10.11 Labor Opposition and Australian Democrat Senators believe that it is critical for the 15 per cent superannuation tax to be treated as a tax, in order for the Parliament to be assured that the legislation is in fact within the Constitutional powers of the Parliament.

10.12 Labor Opposition and Australian Democrat Senators note the Prime Minister's pre-election commitment to "not increase or introduce any new taxes."

10.13 Labor Opposition and Australian Democrat Senators are firmly of the view that it is entirely inappropriate for the Government to require the Parliament to pass legislation which may in fact be unconstitutional, in order for the Government to maintain their election commitment.

10.14 The Coalition's election policy on superannuation, released in February 1996, echoed these intentions, with the clear commitment that there would be no change to the 15 per cent tax on employer contributions, and that:

10.15 Commitments to provide certainty in retirement incomes policy were provided in the social security policy, [3] the older Australians policy, [4] and also in the Prime Minister's undertaking in his Campaign Launch speech not to introduce new taxes or increase existing ones. The superannuation tax surcharge breaches each of these four policy commitments.

10.16 The Treasurer defended the introduction of the measure, the largest single taxation revenue measure introduced in the 1996 Budget, in his Budget speech as a measure "designed to make superannuation fairer." He said:

10.17 The unfair nature of superannuation tax concessions has been the subject of considerable comment by many industry bodies and commentators, including ACOSS [6] and EPAC [7].

10.18 Labor Opposition and Australian Democrat Senators support the stated intention of the Government to move to correct the inequities in the taxation of superannuation, although note that the surcharge would, even if fully implemented, only partially achieve this purpose, while opening up new inequities.

10.19 Labor Opposition and Australian Democrat Senators believe that the surcharge's proposed collection mechanism is inefficient. Labor Opposition and Australian Democrat Senators note the statement to the Committee by Mr Vernon Winley of the Business Council of Australia (BCA) that:

10.20 The New South Wales Government made an extremely interesting observation regarding the intention of the Bills and their interaction with privacy laws.

10.21 The New South Wales Government expressed concern that the Bills may be beyond the Parliament's constitutional taxation power and incidental power.

10.22 As currently drafted, the Bills may be construed as having as their primary intention the collecting and collating of information. The surcharge acts in this analysis as the penalty for failing to provide such information. By failing to provide information the individual is subjected to a tax of 15 per cent.

10.23 If this is indeed the intention of the Bills, it would seem that the Parliament is beyond the scope of its constitutional power in relation to the incidental power. Indeed Bills intending to effect this outcome would possibly constitute the most substantial legislative invasion of privacy laws ever enacted in Australia.

10.24 Labor Opposition and Australian Democrat Senators are concerned that the superannuation tax seeks to overturn the voluntary quotation principle in respect to TFN's.

10.25 Labor Opposition and Australian Democrat Senators believe that it is a fundamental principle of Australian society that individuals are able to choose whether they quote their tax file number to non-government organisations who are not subject to privacy laws, without fear of being subjected to a punitive penalty tax.

10.26 If the collection mechanism of the tax were to be amended to the alternative collection mechanism then there would be no requirement for individuals to disclose their tax file number to the superannuation funds.

10.27 Labor Opposition and Australian Democrat Senators are concerned that the failure of the Government to adopt this position of amending the collection mechanism will result in a number of implications for privacy laws which may not be appropriate or supported by the Australian community.

That the surcharge is a tax

10.28 The superannuation surcharge was the largest single revenue measure in the 1996/7 Budget. The Budget Papers clearly categorise the revenue to be raised on superannuation contributions as being part of Income Tax collections [9], citing a key factor underlying growth in the 1997 forward estimates as:

10.29 Evidence given to the Committee by the ATO stated that the power to be relied upon for the imposition of the Bill is paragraph 51(ii) of the Constitution, which is the taxation power. [11]

10.30 Mr Dennis Rose AM, QC, on behalf of the BCA, also supported this argument on the basis that the surcharge is a tax. In his advice, he indicated that, in his opinion, there were no other Constitutional powers which could support the Constitutional authority of the surcharge, including the corporations power.

10.31 Mr Ross Ramsay, a trustee of the Superannuation Fund Bramex Super Pty Ltd, made the point that if the taxation power is not relied upon, the surcharge would amount to the acquisition of property on other than just terms and so breach paragraph 51(xxxi) of the Constitution.

10.32 The surcharge has all the attributes of a tax. These include:

10.33 It cannot therefore be called a fee for service. It doesn't matter whether a measure is described as a tax: whether it is a tax depends on the nature of the impost. For example, the training guarantee levy and the superannuation guarantee levy are both based on the tax power even though called levies. If the Government is relying on paragraph 51(ii) of the Constitution, then the surcharge is clearly a tax.

10.34 None of the witnesses who appeared before the Committee justified the Constitutional basis of the surcharge other than on the grounds that it was a tax. Notwithstanding the constitutional basis of the measure and the categorisation by both Treasury and the Tax Office, the Government continues to deny that the measure is indeed a tax increase. For example, the Assistant Treasurer told the Senate on March 18 1997 that:

10.35 This continuing denial of the true nature of the increase in superannuation contributions tax contained in this legislation and attempts to cloak its true taxing effect are contributing to the administrative problems caused by the legislation.

Eligible Termination Payments (ETPs)

10.36 The application of the surcharge to ETPs will result in great injustice and will not only affect the Government's proposed target group of high income earners. If a person on a low or middle income accumulates long service leave over a number of years, they will receive a payment on leaving the workforce that is likely to put them into the income group liable for the surcharge. They will then face losing 15% of their entire ETP even though it has been accumulated for a large number of years. Where is the equity argument?

10.37 However, Labor Opposition and Australian Democrat Senators recognise that there are situations where large ETPs are paid to some people, such as company directors, and that even with the proposed surcharge in place, such measures as 'golden handshakes' could be used to result in a tax rate lower than would otherwise apply if the payment is disguised as an ETP rather than normal income.

10.38 There is therefore a need for anti-avoidance measures to be contained in the surcharge. As the surcharge is not imposed under the Income Tax Assessment Act 1936 (ITAA), the anti-avoidance rules in Part IVA of that Act will not apply. This view was supported by the ATO. [13] The Bills should be amended to include anti-avoidance provisions or be called a tax and imposed under the ITAA so that Part IVA applies.

10.39 The Bills will increase the tax paid on ETPs which are currently concessionally taxed under the ITAA, and if the Government want to increase the rate of tax on ETPs, why doesn't it increase the rates contained in the ITAA?

Defined Benefits Schemes

10.40 The impact on members of defined benefits schemes will be severe. They will not only have to pay the surcharge, if liable, but will also be paying interest on this amount. As there is no ability for an employer or employee to pay off the surcharge as it accrues, they will also have to pay compound interest, even if willing to pay off the amount on a yearly basis as the tax liability accrues. Where is the choice for members and isn't the Government supposedly about providing choice for members of the community?

Guidelines

10.41 The actuarial guidelines have not been released and evidence to the Committee is that they will not be finalised before the proposed passage of the Bills. [14] The guidelines are crucial to the operation and impact of the Bills yet the Parliament is expected to pass the legislation without having seen the guidelines.

The proposed collection mechanism and alternatives

10.42 Many witnesses and submissions drew attention to the cost of the proposed collection mechanism. Comments included the following:

10.43 Labor Opposition and Australian Democrat Senators note the submission of the Investment Funds Association (IFA) that:

10.44 Labor Opposition and Australian Democrat Senators note the widespread support for an alternative collection mechanism utilising group certificates. Many bodies supported the use of group certificates for the surcharge collection mechanism, including:

10.45 Labor Opposition and Australian Democrat Senators believe that the advance instalments system adds another layer of complexity to an already unnecessarily complex collection mechanism. The advance instalments system will be highly disruptive to the investment practices of superannuation providers. Dr Michaela Anderson of ASFA told the Committee that:

Recommendations

10.46 Labor Opposition and Australian Democrat Senators recommend that the equitable principle of the 15 per cent tax surcharge be supported.

10.47 Labor Opposition and Australian Democrat Senators recommend that an alternative collection mechanism utilising group certificates be adopted, and that the advance instalments system not be adopted. As the surcharge Bills are currently framed every single superannuation member will pay - through high administration costs and lost opportunities to funds for long-term investment - for the inefficiencies of a collection mechanism that is targeted at only approximately 350,000 people.

10.48 Labor Opposition and Australian Democrat Senators recommend that unpaid leave and termination payments contained in prescribed industrial instruments be excluded from the definition of assessable income. Unusual payments (eg. golden handshakes) should be included in the definition of assessable income where they have been received after August 20 1996.

10.49 Labor Opposition and Australian Democrat Senators support the recommendation, made as part of an alternative collection mechanism utilising group certificates, that individuals be allowed to nominate how they pay their surcharge liability, for example: by offsetting the surcharge against any tax refund due; or paying the surcharge directly; or passing the liability to the superannuation fund to make the payment by debiting his or her account. Labor Opposition and Australian Democrat Senators note that an approach along these lines has been suggested by both the BCA and ASFA. [29]

10.50 Labor Opposition and Australian Democrat Senators are concerned that the Australian Tax Office's proposed approach of collecting surcharge on a proportional basis from superannuation funds in cases where an individual holds accounts with more than one fund will lead to additional administrative work which could have been avoided by allowing individuals to nominate how they would wish to pay their surcharge liability. [30] This will be a particular issue in relation to small accounts.

Conclusion

10.51 The problems with the collection mechanism proposed by the Government appear to stem from a determination to muddy the true nature of the surcharge by requiring a second party (ie. the funds) to pay a tax imposted on the first party (ie. the high income earner). The convoluted nature of the resultant legislation flows from the reluctance of the Government to concede that the largest revenue measure in the 1996 Budget, categorised by Treasury in the Budget Papers as part of Income Tax collections [31] is in fact, a tax.

10.52 The problems identified by the Committee could be solved by admitting that the surcharge is a tax and implementing it as a tax under the ITAA. This would allow the implementation of the Government's objective of reducing inequities in superannuation taxation concessions to be achieved, while reducing the massive compliance costs associated with the legislation.

(SIGNED)

Senator Lyn Allison Senator Stephen Conroy

Senator Chris Evans Senator the Hon. Nick Sherry (Deputy Chairman)

 

AUSTRALIAN DEMOCRAT SENATORS' SUPPLEMENTARY CONCLUSIONS AND RECOMMENDATIONS

10.53 The following paragraphs are the views of Senator Lyn Allison on behalf of the Australian Democrats and are in addition to the conclusions and recommendations above.

10.54 The Australian Democrats strongly support a fairer taxation system for superannuation. Indeed, we have been calling for an increase in tax paid by high income earners for several years because the current concessional treatment of superannuation contributions provides a disproportionate benefit for high income earners. The following table illustrates:

Income (p.a.) Marg. Tax Rate (%) Super Tax Rate (%) Super Tax Concession (%) Tax benefit
$20,000 20% 15% 5% $60
$30,000 34% 15% 19% $342
$40,000 43% 15% 28% $672
$50,000 47% 15% 32% $960
$100,000(a) 47% 15% 32% $1920
$100,000(b) 47% 30% 17% $1020

(* Assumes 6 per cent employer contribution)

(a) On current tax rules (b) With proposed 15% Surcharge

10.55 Under the flat rate contributions tax, the more a person earns, the bigger the benefit. Given that superannuation tax concessions are now worth more than $6.4 billion a year, this means a very large chunk of tax revenue is being diverted to high income earners. This defeats one of the arguments in favour of concessional tax treatment of superannuation ie. that encouraging employees to save for retirement through tax concessions will ultimately reduce reliance on the pension.

10.56 This is because the tax benefits under the current scheme are biggest for those least likely to be on the pension. The current unfair nature of the superannuation contributions tax has been extensively canvassed by a wide range of organisations such as EPAC reports [32], the Committee for Economic Development [33], ACOSS [34] and Access Economics, and by a wide range of commentators including economist Professor John Head, commentators Brian Toohey and Eva Cox and former Treasury Deputy Secretary and member of the National Commission of Audit, John Fraser. ACOSS estimates that someone earning a salary of $90,000 will receive tax concessions worth three times as much as the eventual pension drawn by someone earning average weekly earnings.

10.57 Research by the Australian Democrats have shown the tax system is also tilted against women because men tend to enjoy much higher incomes. About 74 per cent of super tax concessions flow to men and just 26 per cent to women. This is despite the fact that women constitute 55 per cent of the post-age 60 population [35].

10.58 The research also showed that the 6.9 per cent of the population with an income above $50,000 received 33.2 per cent of the $6 billion of tax concessions. By contrast, the 22 per cent of people earning less than $21,000 earned just 3.2 per cent.

10.59 It is clear that the reform proposed by the Government still fall well short of delivering a fair superannuation contributions tax. The tax system will still be unfairly skewed toward high income earners while low income earners will receive little benefit from concessional tax treatment.

10.60 Not just is the Government's proposed surcharge administratively cumbersome and constitutionally questionable, it also fails the primary objective set by the Treasurer in his Budget Speech of delivering a fair superannuation taxation regime.

10.61 A much fairer process would be to tax all employer superannuation contributions through the PAYE tax system with a flat rebate (eg. 15 - 20 per cent) available to all contributors off their marginal tax rates. This would have the added bonus of appearing clearly as a tax rebate for super implying concessional treatment rather than as a contributions tax implying punitive treatment.

10.62 The evidence presented to this inquiry confirms that it would be possible to develop an administratively simple system for identification and payment of superannuation contribution taxes through the group certificate system, a conclusion already reached by this Committee in 1992. [36]

10.63 It is also noted that the Coalition proposed a similar charge to superannuation taxation prior in their 1993 Election Policy, although the 1996 Election Policy proposed retention of the current 15 per cent contributions tax.

10.64 The Australian Democrats recommend that the Government give consideration to further reform of superannuation taxation concessions to provide full equality of treatment across all income groups.

(SIGNED)

Senator Lyn Allison

 

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Footnotes

[1] Evidence, p. 28.

[2] "Super for All - Security and Flexibility in Retirement" Coalition Superannuation Policy Statement, p.16.

[3] "A Social Security Safety Net" Coalition Social Security Policy, p. 12.

[4] "Security for Older Australians" Coalition Policy, p. 3.

[5] Costello, P. "Budget Speech", August 20 1996, p.10

[6] Submission 58, pp.12-5.

[7] Pender H and Ross S "Taxation, Regulation and Private Savings in Australia" EPAC Jan 1994; "Economic Effects of an Ageing Population" EPAC Council Paper No 29 1988.

[8] Evidence, p. 210.

[9] Budget Paper 1996/7 No 1, pp.4-28.

[10] ibid pp. 4-45.

[11] Evidence, p. 304.

[12] Senator Rod Kemp, in response to a Question from Senator Sherry, Senate Hansard March 18 1997, p.1601.

[13] Evidence p. 302.

[14] Evidence, p. 254.

[15] Submission 6, Australian Institute of Superannuation Trustees (AIST), p. 1.

[16] Ms Robyn Quinn of the New South Wales Premier's Department, Evidence, p. 24.

[17] Submission 26, IFA, p. 7.

[18] Submission 27, AMP Society, pp. 4-5.

[19] Submission 23, ASFA, p. 11.

[20] Submission 52, ACTU, pp. 2, 5.

[21] Submission 21, Australian Society of CPAs, p. 1.

[22] Submission 32, BCA, p. 3.

[23] Submission 30, Coopers and Lybrand, p. 5.

[24] Submission 39, Institute of Actuaries of Australia, Attachment, pp. 7-8.

[25] Submission 10, Jacques Martin, p. 3.

[26] Evidence, pp. 148-149.

[27] Evidence, p. 159; Submission 20, MTIA, Annexure A, p. 1.

[28] Evidence, p. 63.

[29] Submission 32, BCA, p. 3; Submission 23, ASFA, p. 11.

[30] On the proposed ATO approach see Evidence, pp. 301-302.

[31] Budget Paper 1996-7 No. 1, pp. 4-28.

[32] Pender H and Ross S "Taxation, Regulation and Private Savings in Australia" EPAC Jan 1994, "Economic Effects of an Ageing Population" EPAC Council Paper No 29 1988.

[33] Argy F "An Australia that Works: A Vision for the Future" CEDA August 1993.

[34] Submission 58, pp. 12-15.

[35] Kernot C "Briefing Paper on Women, Superannuation, Tax Concessions and the Pension" Sep 1994, p.2.

[36] Fourth Report of the Senate Select Committee on Superannuation Dec 1992, pp.82-4.