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The AAT has affirmed the Commissioner's objection decisions in relation to the taxpayer's objection to assessments of superannuation guarantee charge. The dispute concerned the calculation of the nominal interest component.

The taxpayer had individual superannuation guarantee shortfalls for the quarters ended 31 December 2010, 31 March 2011, 30 September 2011, 30 June 2012, 30 September 2012 and 31 December 2012. It appears from the decision that the taxpayer may have paid the correct amount for the quarters, but only after the due date, hence the shortfalls.

After an audit by the Commissioner, the taxpayer lodged superannuation guarantee statements for those periods on 10 June 2013. In calculating the taxpayer's superannuation guarantee shortfall, nominal interest was charged from the beginning of the relevant quarter to the date of lodgment of the superannuation guarantee statements, that is, 10 June 2013.

The AAT described the issue in dispute at para 12 as follows:

"So, if a statement for a quarter ended 31 March were lodged on the lodgment day (28 May), the nominal interest component would be calculated at the appropriate rate (10 per cent) from 1 January to 28 May. If the statement were lodged after 28 May, the interest component would run from 1 January to that later date of lodgment. Where, as here in the case of the quarter ended 31 December 2010, the statement is lodged over two years late, the nominal interest component is calculated for the entire period from the beginning of the relevant quarter to the delayed date of lodgment of the statement, even though the contribution may have been made only a few days after the contribution due date, some years before the statement was eventually lodged."

The taxpayer sought to have the assessments amended under s 37 of the Superannuation Guarantee (Administration) Act 1992. Section 37(1) provides:

"The Commissioner may, subject to this section, at any time amend any assessment by making any alterations or additions that the Commissioner thinks necessary, whether or not superannuation guarantee charge has been paid in relation to the assessment."

The taxpayer's application was refused. The AAT said, at paras 20 and 22:

"What the Commissioner is authorised by s 37 to do is to amend an assessment by making any alterations or additions that the Commissioner thinks necessary. An alteration to an assessment would be necessary if, but only if, it brought an assessment into alignment with the Commissioner’s understanding of the facts and the law....

But what the Commissioner is not authorised by s 37 to do is to turn his back on the rest of the SGA Act and amend an assessment so that it is no longer in alignment with the facts and the law. He cannot pretend that wages were $10,000 when in fact they were $12,000. He cannot pretend that the charge percentage was 6 when in fact it was 9. And he cannot pretend that a statement was made in 2011 when in fact it was made in 2013."

The objection decisions were affirmed.

The Trustee for Rane Haulage Trust and FCT [2014] AATA 733 (AAT, Frost DP, 10 October 2014).

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