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Does the Commissioner have a discretion to remit the termination payments surcharge assessed as payable under section 11 of the Termination Payments Tax (Assessment and Collection) Act 1997 (TPT Act)?

No. The Commissioner does not have a discretion to remit the surcharge assessed as payable under section 11 of the TPT Act.

The taxpayer received an employer eligible termination payment (ETP) that was subject to the termination payments surcharge.

As the taxpayer's adjusted taxable income (ATI) exceeded the surcharge threshold, the Commissioner calculated the amount of surcharge payable and issued an assessment to the taxpayer.

Under section 11 of the TPT Act, the Commissioner is required to calculate the amount of surcharge payable in respect of a termination payment if a person's ATI exceeds the surcharge threshold for the relevant financial year the payment was received.

As the taxpayer's ATI exceeded the surcharge threshold, the Commissioner calculated the surcharge payable on the termination payment and issued an assessment to the taxpayer.

As the Commissioner does not have discretion under the TPT Act to remit (in part or in full) the surcharge liability that has been assessed as payable under section 11 of the TPT Act, the surcharge assessment remains payable by the taxpayer.