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The AAT has held that a taxpayer who carried on a business of providing community support services to persons who were disabled, infirm, elderly or otherwise in need of physical assistance in their homes was not liable to Superannuation Guarantee Charge in respect of 21 of her workers on the basis that s 11(2) of the Superannuation Guarantee (Administration) Act 1992 (the Act) applied.

The services were not physically or personally provided by the taxpayer, but by workers on whom the taxpayer could call when a client placed a request for assistance. Section 11(2) provides that remuneration under a contract for the employment of a person, for not more than 30 hours per week, in work that is wholly or principally of a domestic or private nature is not to be taken into account as salary or wages for the purposes of the Act.

In rejecting the Commissioner's argument that s 11(2) had no application, the AAT said, at para 19:

"It may be accepted that the workers are not providing domestic services to the taxpayer, but that is not the question. The question does not concern itself with the nature of the services the workers provide to the taxpayer; instead the question is whether the workers are “paid to do work wholly or principally of a domestic or private nature”. To suggest that the work that the workers do, and for which they are paid, changes from work of a domestic nature to work of some other nature, simply because the work is not performed in the home of the taxpayer, but in the home of some other person in what is obviously a domestic setting, is, in my view, wrong."

Care Provider and FCT [2010] AATA 475 (AAT, Frost SM, 28 June 2010)


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