Tomago Aluminium Company - early retirement scheme 2019

This Ruling sets out tax consequences of an early retirement scheme implemented by Tomago Aluminium Company (Tomago).

Details of this scheme are set out in paragraphs 8 to 23 of this Ruling.

This Ruling applies to the employees who receive a payment under the scheme.

This Ruling applies from 7 August 2019 to 31 May 2020.

The Tomago Aluminium early retirement scheme 2019 is an early retirement scheme for the purposes of section 83-180 of the Income Tax Assessment Act 1997 (ITAA 1997). [1]

Accordingly, so much of the payment received by an eligible employee that exceeds the amount that could reasonably be expected to be received by the employee in consequence of voluntary termination of their employment at the time of the retirement will be an early retirement scheme payment.

In addition, so much of the early retirement scheme payment as falls within the threshold calculated in accordance with section 83-170 is not assessable income and is not exempt income.

The following description of the scheme is based on information provided by the applicant. If the scheme is not carried out as described, this Ruling cannot be relied upon.

The scheme will be titled ' Tomago Aluminium Company early retirement scheme 2019 ', hereafter referred to as 'the scheme'.

Tomago is a world scale smelter that is an independently managed joint venture operating in the Hunter Valley. The business faces significant challenges in the current market, including the need to introduce new technologies and employee capabilities.

Tomago is undertaking a re-organisation of its business which is part of a strategy to remain competitive against a background of macro and micro economic constraints.

Tomago has an ageing workforce and is seeking to diversity its workforce skills and flexibility. Tomago will incentivise older employees to retire earlier to increase productivity while reducing the risk of injury from manual tasks that cannot be automated.

The class of employees to whom the scheme applies is all full-time employees of Tomago who meet all of the following criteria: • employed in the Operator Class or Trades Class, and • at least 55 years of age, but under 65 years, on the date of termination of employment.

The number of packages in each class will be limited. If the scheme is oversubscribed, applications will be processed on the basis of age, with the oldest employees receiving priority. If two employees share the same date of birth, then the employee with the greater length of service will receive priority.

Eligible employees who retire under the scheme will receive a payment dependent on the amount of accrued and unused personal leave: • 16 weeks' pay at the employee's base salary if the employee has 800 or more hours of unused personal leave, or • 12 weeks' pay at the employee's base salary if the employee has under 800 hours of unused personal leave.

All eligible employees terminated under the scheme will receive their statutory entitlements such as annual leave and long service leave where applicable. However, these amounts will not form part of the payment made under the scheme.

The scheme will operate as follows: • eligible employees will be invited to submit an expression of interest (EOI) to participate in the scheme • eligible employees who submit an EOI will be notified of the outcome, and • eligible employees who accept the offer to retire under the scheme will terminate their employment and receive payment no later than 31 May 2020.

The payment made under the scheme is in excess of any superannuation and any other benefits to which eligible employees would otherwise be entitled.

Employees who terminate their employment other than under the scheme, will not be entitled to receive the scheme payment.

The retirement of employees who receive a payment under the scheme will occur before they turn 65 years of age.

Payments made under the scheme will be at arm's length.

There is no agreement in place between any eligible employee and Tomago, or between Tomago and another person to employ the eligible employee after the retirement under the scheme.

Participation in the scheme is entirely voluntary.

A scheme will be an early retirement scheme if it satisfies the requirements of subsection 83-180(3).

Subsection 83-180(3) states that: A scheme is an early retirement scheme if: (a) all the employer's employees who comprise such a class of employees as the Commissioner approves may participate in the scheme (b) the employer's purpose in implementing the scheme is to rationalise or re-organise the employer's operations by making any change to the employer's operations, or the nature of the work force, that the Commissioner approves, and (c) before the scheme is implemented, the Commissioner, by written instrument, approves the scheme as an early retirement scheme for the purposes of this section. These three conditions are now considered.

In order to satisfy the first condition, the scheme must be offered to all employees in a class approved by the Commissioner under paragraph 83-180(3)(a).

The class of employees to whom early retirement will be offered under the scheme is set out in paragraph 13 of this Ruling.

The Commissioner considers that this is an appropriate class of persons for the scheme to be offered to. 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 purposes of paragraph 83-180(3)(a).

The proposed scheme must be implemented by the employer with a view to rationalising or re-organising the operations of the employer as described in paragraph 83-80(3)(b).

Paragraphs 10 to 12 of this Ruling describe the nature of the rationalisation or re-organisation of the employer's 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 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 purposes of paragraph 83-180(3)(b).

Accordingly, the second condition for approval has been met.

The scheme is proposed to operate for a period from 7 August 2019 to 31 May 2020. The approval to be provided by the class ruling will have been granted prior to implementation therefore, for the purposes of paragraph 83-180(3)(c), this condition is satisfied.

The scheme will be in operation for a period considered appropriate due to the circumstances of the re-organisation.

Under subsection 83-180(1), so much of the payment received by an employee because the employee retires under an early retirement scheme as exceeds the amount that could reasonably be expected to be received by the employee in consequence of the voluntary termination of their employment at the time of termination is an early retirement scheme payment.

It should be noted that, in order for a payment to qualify as an early retirement scheme payment, it must also satisfy the following requirements (as set out in subsections 83-180(2), 83-180(5) and 83-180(6)): • the retirement occurred before the employee turned 65 or such earlier date on which the employee's employment would have terminated under the terms of employment because of the employee attaining a certain age or completing a particular period of service (as the case may be) • if the employee 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 the amount that could reasonably be expected to be made if the retirement was at arm's length • at the time of retirement there was no arrangement between the employee and the employer, or between the employer and another person, to employ the employee after the retirement • the payment must not be made in lieu of superannuation benefits, and • it is not a payment mentioned in section 82-135 (apart from paragraph 82-135(e)).

The term 'arrangement' is defined in subsection 995-1(1) as meaning: ...any arrangement, agreement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable (or intended to be enforceable) by legal proceedings.

In accordance with section 83-170, an early retirement scheme payment that falls within the specified limit is referred to as the 'tax-free' amount and will not be assessable income and will not be exempt income.

For the 2019-20 income year, the tax-free amount is limited to $10,638 (base amount) plus $5,320 (service amount) for each whole year of completed employment service to which the early retirement scheme payment relates. It should be noted that six months, eight months or even eleven 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 15 of this Ruling may qualify as an early retirement scheme payment.

The total payment calculated in accordance with paragraph 15 of this Ruling will be measured against the limit in accordance with the formula mentioned in paragraph 38 of this Ruling to determine the tax-free amount of the early retirement scheme payment.

The tax-free amount will: • not be an employment termination payment (ETP), and • not be able to be rolled-over into a superannuation fund.

Any payment in excess of this limit will be an ETP and will be split into tax-free and taxable components. The tax-free component of an ETP includes the pre-July 83 segment of the payment. The tax-free component is not assessable income and is not exempt income.

The taxable component of the ETP will be taxed at various rates depending on the person's age. It should be noted that the ' whole of income cap ' does not apply to any part of the early retirement scheme payment.