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1 / / Pay-roll Tax Superannuation Benefits Circular

2

3 Contents Preface Introduction Superannuation benefits Superannuation fund Superannuation Guarantee Charge Superannuation Holding Accounts Reserve (SHAR) Retirement Savings Accounts Which superannuation contributions attract Pay-roll Tax? Employees Deemed Employees Company Directors Superannuation benefits paid before and after 1 July Answers to commonly asked questions PTX SUPERANNUATION BENEFITS CIRCULAR: 01

4 General Information preface This document provides a brief explanation of the Pay-roll Tax treatment of superannuation benefits but it does not constitute a Revenue Ruling. If any uncertainty exists with a particular aspect of the information provided, you should seek advice from the State Revenue Office (SRO). The information in this document is correct at the time of printing. introduction Pay-roll Tax is a State tax, administered in Victoria by the SRO, based on wages paid or payable by an employer. The definition of wages in the Pay-roll Tax Act 1971 (the Act) is very broad and requires employers to include various payments made to, or on behalf of, their employees or deemed employees. From 1 July 1997, the definition of wages was broadened to include 'superannuation benefits'. This means that all employer superannuation contributions made for employees or deemed employees are taxable where they relate to services performed on or after that date. superannuation benefits The definition of 'superannuation benefits' contained in the Act includes money paid or payable by an employer for an employee: to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth); or as a superannuation guarantee charge; or to or as any other form of superannuation, provident or retirement fund or scheme including: a Superannuation Holdings Accounts Reserve (SHAR) (now known as the Superannuation Holding Accounts (SHA) Special Account; a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 (Cth); and a wholly or partly unfunded fund or scheme. superannuation fund The term 'superannuation fund' is defined in the Superannuation Industry (Supervision) Act 1993 (Cth) as being: a fund that is an indefinitely continuing fund and is a provident, benefit, superannuation or retirement fund; or a public sector superannuation scheme. In this context, the term 'indefinitely continuing' means the fund is not one that will cease after a specified time. 02 :PTX SUPERANNUATION BENEFITS CIRCULAR

5 General Information The term 'employee' is defined in section 12 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA) to include all persons engaged to supply services that consist (wholly or principally) of the provision of labour. The SGAA requires all employers to pay minimum levels of superannuation for all their employees. The minimum level of contribution is nine per cent for 2002/2003 and following years. Superannuation guarantee charge contributions can be made to any complying superannuation fund. Superannuation Guarantee Charge The Act requires all contributions made as a superannuation guarantee charge to be included as wages for Pay-roll Tax purposes. While the superannuation guarantee charge may also include penalties imposed by the Australian Taxation Office (ATO), under sections 49 or 59 of the SGAA, the SRO does not require employers to pay Pay-roll Tax on these penalties. An employer's superannuation guarantee short-fall for the quarter consists of: (i) the total of the employer's individual superannuation guarantee shortfalls for the quarter; (ii) the employer's nominal interest component for the quarter; and (iii) the employer's administration component for the quarter. The employer's superannuation guarantee charge, which is an amount equal to the amount of the shortfall (the sum of these three components), is subject to Pay-roll Tax. (See Revenue Ruling PT.086) SHAR was created on 1 July 1995 to hold small superannuation amounts until they can be transferred into a complying superannuation fund or retirement savings account. SHAR later became known as the SHA Special Account. Until 30 June 2006, the SHA Special Account (or SHAR as it was previously known) could be used as an employer fund and payments made to the SHA Special Account could satisfy an employer's superannuation guarantee obligations. Superannuation Holding Accounts Reserve (SHAR) The SHA Special Account was closed from 1 July For further details on SHA Special Account, please contact the ATO. Effective from 1 July 1997, the Retirement Savings Accounts Act 1997 (Cth) allows banks and other financial institutions to provide superannuation-like capital guaranteed products without a trust structure. Retirement Savings Accounts PTX SUPERANNUATION BENEFITS CIRCULAR: 03

6 General Information which superannuation contributions attract Pay-roll Tax? Superannuation benefits paid or payable for: employees (excluding exempt employees, for example, apprentices prior to 30 June 2003) (see question 9 on page 9) deemed employees, and company directors, are considered to be wages for the purposes of Pay-roll Tax. EMPLOYEEES The Act requires an employer to include all wages paid, or payable, to employees (including all employer superannuation contributions) in its Pay-roll Tax calculations. Superannuation contributions made by an employer on behalf of their employees (that is, after-tax contributions) have always been considered to be wages for Pay-roll Tax purposes. DEEMED EMPLOYEES The Act includes provisions that deem payments made under an employment agency contract to be wages for Pay-roll Tax purposes. From 1 January 2005, an employment agent is liable for Pay-roll Tax on the 'wages' paid to the on-hired worker. 'Wages' paid under an employment agency contract include: any amount paid or payable to or in relation to the on-hired worker in respect of the provision of services under the employment agency contract; the value of any fringe benefits provided to the on-hired worker; and any employer superannuation contributions made in respect of the on-hired worker. The Act also includes provisions that deem some contractors to be employees for Pay-roll Tax purposes. Any superannuation contributions made by an employer for a contractor who is a 'deemed employee' are subject to Pay-roll Tax. For further information on the contractor provisions refer to the SRO's publication ptx-014 'Contractors Information Circular'. COMPANY DIRECTORS The definition of wages in the Act also includes payments made to a company director irrespective of whether the director is a working or non-working director. Any superannuation benefits paid in respect of company directors are wages and are subject to Pay-roll Tax. 04 :PTX SUPERANNUATION BENEFITS CIRCULAR

7 General Information The Act specifically provides that superannuation benefits paid on or after 30 April 1997, for services provided on or after 1 July 1997 (pre-payments), are considered to have been made on 1 July 1997 and are taxable. Any superannuation contributions made on or after 1 July 1997 for services provided before that date are not wages for Pay-roll Tax purposes and are not taxable. superannuation benefits paid before and after 1 July 1997 PTX SUPERANNUATION BENEFITS CIRCULAR: 05

8 Answers to Commonly Asked Questions The following are some of the more common questions the SRO has received about superannuation benefits. If your circumstances are not covered by any of the following scenarios or if you are uncertain about your Pay-roll Tax obligations regarding superannuation benefits, please contact the SRO for further advice. question 1 answer 1 Some of our staff can 'salary sacrifice' superannuation contributions. Is Pay-roll Tax payable on superannuation contributions made under salary sacrifice arrangements? Yes, the provisions of the Act capture all superannuation contributions made by employers for their employees. This includes all employer contributions where an employee has sacrificed part of their salary in return for employer superannuation contributions. question 2 answer 2 We make contributions to superannuation funds set up by some of our employees. What amounts need to be included as wages for Pay-roll Tax purposes? All superannuation contributions made by an employer for their employees are wages for Pay-roll Tax purposes irrespective of who set up the fund to which the contributions are made. question 3 answer 3 Employees may have their employer deduct superannuation contributions from their 'after-tax' wages. Do these 'after-tax' contributions have to be included as part of the employer superannuation contributions? No, it is only the 'pre-tax' super contributions made by the employer that must be included as part of the employer superannuation contributions. The superannuation contributions deducted from an employee's 'after-tax' wages are not employer 'pre-tax' superannuation contributions. These 'after-tax' contributions represent the employee's own contributions and are called 'personal contributions'. Example Gross weekly wage $1,000 Tax deduction $240 $760 Personal super contribution $60 Net pay $700 The after-tax superannuation contribution of $60 is taxable as part of 'wages' because it forms part of the employee's gross weekly wage of $1, :PTX SUPERANNUATION BENEFITS CIRCULAR

9 Answers to Commonly Asked Questions Our business engages contractors to do some work for us. As part of our arrangements with these contractors, we make contributions to the contractors' superannuation funds. These people provide their services to us through their own companies and are not our employees. Are the superannuation contributions we make on their behalf taxable? The Act contains provisions that 'deem' some contractors to be employees and therefore, payments made to these contractors are 'deemed' to be wages. To determine if Pay-roll Tax is payable on superannuation contributions made under the contract with the contractor, you must first establish if the contract is a 'relevant contract' and the contractor is a 'deemed employee' under the provisions of section 3C of the Act (please refer to SRO Publication PTX-014 Contractors' Information Circular). If the contractor is deemed to be an employee then all payments made to the contractor, including any superannuation contributions, are taxable. On the other hand, if the contractor is not deemed to be an employee, the superannuation contributions are not wages and are not taxable. question 4 answer 4 We were late in making our superannuation contributions for the 1996/1997 year and did not make these contributions until early August As these contributions were made after 1 July 1997 do we have to include them in our Pay-roll Tax payment for August 1997? The Act is designed to impose Pay-roll Tax on superannuation contributions in respect of services provided on or after 1 July Any contributions made on or after 1 July 1997 which relate to services provided in periods before 1 July 1997 are not taxable as long as the taxpayer maintains sufficient records to satisfy the SRO that the contributions relate to periods before 1 July question 5 answer 5 Our company is a subsidiary of an overseas company. Regularly, staff members from our overseas office are seconded to our Melbourne office to work for periods between six to twelve months. The arrangement for these people is that we make contributions to their superannuation funds which are located overseas. Do we have to include these contributions for Pay-roll Tax? Yes, the Act captures payments made to superannuation funds and payments to 'any other form of superannuation, provident or retirement fund or scheme'. This includes payments made to funds that are located overseas if those payments relate to work performed by the employee in Victoria on or after 1 July question 6 answer 6 PTX SUPERANNUATION BENEFITS CIRCULAR: 07

10 Answers to Commonly Asked Questions question 7 answer 7 The superannuation fund, which all of our employees are members of, is funded to such an extent that it is currently in a 'contributions holiday'. How much do we have to include in our Pay-roll Tax declarations? The superannuation provisions in the Act are intended to capture employer contributions to superannuation funds. When a fund is in a 'contribution holiday' the employer is not required to make contributions to that fund. As no contributions are being made, there is nothing to impose Pay-roll Tax on. In future, when the employer resumes to make contributions, these contributions will be subject to Pay-roll Tax. question 8 answer 8 We are a public authority and our superannuation fund is an unfunded fund where contributions are made for a particular employee when that employee retires. How do we calculate the amount that we should include as wages for Pay-roll Tax? Working out the amount to declare as wages for Pay-roll Tax for unfunded superannuation funds can be a complex process. To determine how much to declare, the employer must establish the proportion of the payment which relates to services provided by the employee on or after 1 July This will require actuarial calculations. 08 :PTX SUPERANNUATION BENEFITS CIRCULAR

11 Answers to Commonly Asked Questions We employ apprentices and are required to make superannuation contributions on their behalf. What amount do we have to declare for Pay-roll Tax? Wages paid or payable to apprentices and trainees up to 30 June 2003 were generally exempt from Pay-roll Tax if the criteria for the apprentice Pay-roll Tax exemption were met (refer to Revenue Ruling PT.093). The exemption for wages paid to apprentices and trainees was phased out from 1 July 2003 in the following manner: For apprentices or trainees employed under a training agreement entered into on or after 7 May 2003, wages (including employer superannuation contributions) were taxable from 1 July 2003; and question 9 answer 9 For apprentices or trainees employed under a training agreement entered into before 7 May 2003, wages (including employer superannuation contributions) were exempt between 1 July 2003 and 31 December 2003 but became taxable from 1 January From 1 January 2004, wages (including employer superannuation contributions) paid or payable to all apprentices and trainees are subject to Pay-roll Tax. (Note, wages paid to new entrant apprentices/trainees by approved group training organisations are not subject to Pay-roll Tax). We make contributions to a superannuation fund in relation to administration costs and insurance premiums of the fund. Are these contributions subject to Pay-roll Tax? These payments should be included as taxable amounts for Pay-roll Tax purposes as they are contributions to a superannuation fund by an employer in respect of its employees. question 10 answer 10 The above questions and answers are aimed at some of the more common questions directed to the SRO. If you are uncertain of your obligations, please contact the SRO. PTX SUPERANNUATION BENEFITS CIRCULAR: 09

12 Further information This circular contains guidelines and information which are correct at the time of printing but may be subject to change. For further information or assistance, please contact the Pay-roll Tax Branch of the State Revenue Office of Victoria. Internet Telephone Facsimile Mail GPO Box 1641N MELBOURNE VIC 3001 or DX Melbourne In person Level 2, 121 Exhibition Street Melbourne Victoria 3000 AUGUST /06

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