Issue
Can superannuation guarantee shortfall components received by a superannuation provider in a financial year be treated as being received in another financial year under the provisions of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (SCTA)?
Decision
No. There is no discretion under the SCTA for the Commissioner of Taxation (Commissioner) to treat surchargeable contributions (including superannuation guarantee shortfall components) received by a superannuation provider in one financial year as being received in another financial year, even though the employment to which the contributions relate may have occurred in another financial year.
Facts
The member's employer failed to make sufficient compulsory superannuation guarantee contributions to an authorised provider in previous financial years. The employer paid the superannuation guarantee charge to the Australian Taxation Office.
The taxpayer later effectively deposited the superannuation guarantee shortfall component with a superannuation provider.
The superannuation provider, an accumulated benefits provider, reported the surchargeable contributions (including the superannuation guarantee shortfall component) as being contributed in the financial year it actually received the contributions.
The Commissioner issued a superannuation contributions surcharge assessment in respect of the surchargeable contributions reported by the provider as received in the relevant financial year.
Reasons for Decision
Under section 8 of the SCTA, surchargeable contributions are calculated by reference to contributions made to the superannuation provider for the financial year. Paragraph 8(2)(c) of the SCTA includes in 'surchargeable contributions' certain taxable contributions made by an employer to a complying superannuation fund in respect of a member for the financial year (including superannuation guarantee shortfall components).
The surcharge liability in respect of the taxpayer has been correctly calculated based on the information reported by the superannuation provider.
There is no discretion under the SCTA which permits the Commissioner to vary surchargeable contributions reported or apportion such amounts where contributions have been paid into a superannuation provider in respect of prior years.