Income tax: Approved Early Retirement Scheme - Shire of Christmas Island

This Ruling sets out the Commissioner's opinion on the way in which the relevant provision(s) identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates.

This Ruling approves the particular early retirement scheme and acknowledges the availability of tax concessions for entities receiving payment under the scheme. There are many conditions attached to this Ruling and readers should be careful to ensure that these conditions are met before relying on this Ruling.

The relevant provisions dealt with in this Ruling are: • section 27A of the Income Tax Assessment Act 1936 (ITAA 1936); • section 27CB of the ITAA 1936; and • section 27E of the ITAA 1936. All subsequent legislative references are to the ITAA 1936 unless otherwise stated.

The class of entities to which this Ruling applies is those employees of the Shire of Christmas Island who receive a payment under the scheme described in paragraphs 15 to 30 of this Ruling.

The Commissioner makes this Ruling based on the precise scheme identified in this Ruling.

The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 15 to 30 of this Ruling.

If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then: • this Ruling has no binding effect on the Commissioner because the scheme entered into is not the scheme on which the Commissioner has ruled; and • this Ruling may be withdrawn or modified.

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A copy of this Ruling must be given to all employees eligible to participate in the approved early retirement scheme.

This Ruling applies after 14 March 2007 to 30 June 2007. However, the Ruling continues to apply after this date to all entities within the specified class who entered into the specified scheme during the term of the Ruling, subject to there being no change in the scheme or in the entities involved in the scheme.

The Ruling does not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of issue of the Ruling. Furthermore, the Ruling only applies to the extent that: • it is not later withdrawn by notice in the Gazette ; or • the relevant provisions are not amended.

If this Class Ruling is inconsistent with a later public or private ruling, the relevant class of entities may rely on either ruling which applies to them (item 1 of subsection 357-75(1) of Schedule 1 to the Taxation Administration Act 1953 (TAA)).

If this Class Ruling is inconsistent with an earlier private ruling, the private ruling is taken not to have been made if, when the Class Ruling is made, the following two conditions are met: • the income year or other period to which the rulings relate has not begun; and • the scheme to which the rulings relate has not begun to be carried out.

If the above two conditions do not apply, the relevant class of entities may rely on either ruling which applies to them (item 3 of subsection 357-75(1) of Schedule 1 to the TAA).

The following description of the scheme is based on information provided by the applicant.

The Shire of Christmas Island is seeking approval for an early retirement scheme.

The scheme will be open to all employees of the Shire of Christmas Island in the following areas: • Finance and Administration section; • Community Services section; • Planning, Building and Health section; and • Works and Services section.

Currently, many of the Shire of Christmas Island staff have been employed with the Shire for 15 or more years and are in the main an aging population with skills that are not relevant or applicable to the computerised world of business. The need to understand and apply modern principles is also relevant in other areas of the Shire such as the collection and arrangement of waste, regulatory services associated with planning, building and general plant and equipment that the operators use in the outside workforce on roads and in parks.

The Shire of Christmas Island wishes to offer an early retirement scheme to employees to replace the existing skill base with different skill sets that is conducive to change and technology.

The main changes proposed concern the skilling of the Shire of Christmas Island's workforce to undertake more complex work through new technology and engender greater levels of responsibility, autonomy and decision making in all sections within the Shire. The changes will also bring new skills into the workforce to deal with new and changing demands on the Shire of Christmas Island to deliver services to the community. For example, research and planning skills are key areas of skill that are required across the organisation.

The Shire of Christmas Island will limit the number of employees who can accept the offer of early retirement. Participation in the early retirement scheme will be on a first to accept basis.

All employees who retire under the scheme will terminate employment and receive the payment on a date determined by the employer based on their operational requirements but no later than 30 June 2007.

The payment to be made under the scheme is 2 weeks pay for every year of service up to a maximum of 30 weeks pay.

For a payment made under the above mentioned scheme to qualify as an approved early retirement scheme payment, the conditions set out in paragraphs 25 to 30 of this Ruling must be met. Please note, any payment made under the scheme that does not satisfy these requirements is not covered by this Ruling.

The payment must be an eligible termination payment (ETP) made in relation to the taxpayer in consequence of the taxpayer's employment being terminated under an approved early retirement scheme.

The payment must not be from an eligible superannuation fund.

The payment must not be made in lieu of superannuation benefits.

Where the taxpayer and the employer are not dealing with each other at arm's length (for example, because they are related in some way) the payment does not exceed what would have been paid to the taxpayer had they been dealing at arm's length.

The employee must terminate his or her employment before the earlier of: • age 65; or • the date on which the taxpayer's employment would have necessarily terminated under the terms of employment because of the taxpayer attaining a certain age or completing a certain period of service (whichever occurs first).

At the termination time, there is no agreement in force between the employee and the employer or the employer and another person, to employ the employee after the date of termination.

The early retirement scheme to be implemented by the Shire of Christmas Island is an approved early retirement scheme for the purposes of section 27E.

Accordingly, so much of the ETP as exceeds the amount of an ETP that could reasonably be expected to have been made in relation to the taxpayer if the termination of employment had occurred at the termination time otherwise than in accordance with the approved early retirement scheme, is an approved early retirement scheme payment in relation to the taxpayer.

In addition, so much of the approved early retirement scheme payment as falls within the threshold calculated in accordance with subsection 27A(19) is non-assessable and is ignored in working out whether a capital gain has been made via the operation of section 27CB.

Where a scheme satisfies the requirements of section 27E that scheme will be an 'approved early retirement scheme'.

The Commissioner has issued Taxation Ruling TR 94/12 Income tax: approved early retirement scheme and bona fide redundancy payments, which sets out guidelines on the application of section 27E.

Paragraph 14 of TR 94/12 states that: Three conditions need to be satisfied for a scheme to qualify as an approved early retirement scheme. Those conditions are: (i) the scheme must be offered to all employees within a class identified by the employer (paragraph 27E(1)(a)); (ii) the scheme must be entered into with a view to rationalising or re-organising the operations of the employer with an identified purpose in mind (paragraph 27E(1)(b)); and (iii) the scheme must be approved by the Commissioner prior to its implementation (paragraph 27E(1)(c)). These three conditions are discussed below.

In order to satisfy the first condition, the scheme must be offered to all employees within one of the categories specified in subparagraphs 27E(1)(a)(i) to (v).

The class of employees to whom early retirement will be offered is set out at paragraph 17 of this Ruling.

This class of employees does not come within any of subparagraphs 27E(1)(a)(i) to (iv), therefore it must be considered under subparagraph 27E(1)(a)(v), namely, all employees of the employer who constitute a class of employees approved by the Commissioner for the purpose of this paragraph. In approving this class of employees the Commissioner has considered the nature of the rationalisation or re-organisation of the operations of the employer. It is therefore considered that these employees meet the requirements of an approved class of employees for the purpose of subparagraph 27E(1)(a)(v).

It is noted, however, that the Shire of Christmas Island retains a limited right of veto to be applied to the number of employees that can accept the offer of early retirement as set out in paragraph 21 of this Ruling. The limitation of the scheme in this way is acceptable to the Commissioner.

The proposed scheme must be implemented by the employer with a view to rationalising or re-organising the operations of the employer by means of one or more of the objectives set out in subparagraphs 27E(1)(b)(i) to (vi).

Paragraphs 18 to 20 of this Ruling describe the nature of the rationalisation or re-organisation of operations. In approving the scheme, the Commissioner has had regard to the changes in the operations and nature of the workforce of the employer. It is therefore considered that the scheme is to be implemented by the employer with a view to rationalising or re-organising the operations of the employer for the purpose of subparagraph 27E(1)(b)(vi).

The scheme is proposed to operate after 14 March 2007 to 30 June 2007. Approval was granted prior to implementation therefore the third condition is satisfied.

The scheme will be in operation for approximately 4 months which is within the period recommended in TR 94/12.

Under section 27E, so much of the payment received by a taxpayer under the approved early retirement scheme, that exceeds the amount that would ordinarily have been received on voluntary resignation or retirement is an approved early retirement scheme payment.

It should be noted that, in order for a payment to qualify as an approved early retirement scheme payment, it must also satisfy the following requirements (as set out in subsections 27E(4) and (5)): • the payment must be an ETP made in relation to the taxpayer in consequence of the taxpayer's employment being terminated under an approved early retirement scheme; • the payment must not be from an eligible superannuation fund; • the payment must not be made in lieu of superannuation benefits; • if the taxpayer and the employer are not dealing with each other at arm's length (for example, because they are related in some way) the payment does not exceed what would have been paid to the taxpayer had they been dealing at arm's length; • the date of termination was before age 65 or such earlier date on which the taxpayer's employment would necessarily have had to terminate under the terms of employment because of the taxpayer attaining a certain age or completing a certain period of service (whichever occurs first); and • there was no agreement at the date of termination between the taxpayer and the employer, or the employer and another person to employ the taxpayer after the date of termination.

The term 'agreement' is defined in subsection 27A(1) as meaning 'any agreement, arrangement or understanding whether formal or informal, whether express or implied and whether or not enforceable, or intended to be enforceable by legal proceedings'.

An approved early retirement scheme payment made on or after 1 July 1994 that falls within the specified limit will be exempt from income tax and called the 'tax-free amount'.

For the year ending 30 June 2007, the tax-free amount is limited to $6,783 plus $3,392 for each whole year of completed employment service to which the approved early retirement scheme payment relates. Please note that 6 months, 8 months or even 11 months do not count as a whole year for the purposes of this calculation.

The total of the amount received on the termination of employment calculated in accordance with paragraph 22 of this Ruling qualifies as an approved early retirement scheme payment.

The total of the payment in the previous paragraph will be measured against the limit calculated in accordance with paragraph 49 of this Ruling to determine the 'tax-free amount'.

The tax-free amount will: • not be an ETP; • not be able to be rolled-over; • not include any amount from a superannuation fund or paid in lieu of a superannuation benefit; and • not count towards the recipient's Reasonable Benefit Limit.

Any payment in excess of this limit will be an ordinary ETP and split up into the pre-July 83 and post-June 83 (untaxed element) components. This ETP can be rolled-over.

The following is a detailed contents list for this Ruling: Paragraph What this Ruling is about 1 Relevant provision(s) 3 Class of entities 4 Qualifications 5 Date of effect 10 Scheme 15 Payments made under the scheme 24 Ruling 31 Appendix 1 - Explanation 34 The scheme must be offered to all employees within a class identified by the employer 37 The scheme must be entered into with a view to rationalising or re-organising the operations of the employer with an identified purpose in mind 41 The scheme must be approved by the Commissioner prior to its implementation 43 Other relevant information 45 Appendix 2 - Detailed contents list 54