Amnesty for Employers – Superannuation Guarantee Update

On 24 May 2018, the Minister for Revenue and Financial Services announced a 12 month Superannuation Guarantee Amnesty (Amnesty), subject to the passing of legislation, which will apply retrospectively from 24 May 2018 to 23 May 2019.   The Amnesty is encapsulated in the Treasury Laws Amendment (2018 Superannuation Measures No 1) Bill.

The Amnesty will provide an opportunity for employers to self-report and correct previous undeclared super guarantee (SG) shortfalls which occurred between 1 July 1992 and 31 March 2018.

If employers self-report and correct, they will have to pay the SG shortfall plus interest, but they will not be subject to penalties or charges (including the administration component of $20 per employee per quarter) which would usually apply to late payments. Most significantly, and unlike the superannuation guarantee charge (SGC), any catch-up payments of shortfall SG made pursuant to the Amnesty will be tax deductible.

The ATO has warned that employers who do not take the opportunity to be up-to-date with their SG obligations during the Amnesty will face harsher penalties in the future.

To be eligible for the Amnesty, the employer must:

• voluntarily disclose their SG shortfall amount, including nominal interest, to the ATO during the Amnesty period;
• disclose amounts of SG shortfall that have not been previously disclosed; and
• not be subject to an audit of their SG compliance during the relevant period.

Once an employer calculates the amount payable, in order to make a payment, the employer has two options:

1. where an employer can make full payment of the shortfall and nominal interest, they are to do so directly to the affected employee’s super fund and complete and lodge the Amnesty Fund payment form; or
2. where an employer cannot make full payment, they are required complete and lodge the Amnesty ATO payment form and enter into a payment plan with the ATO.

Once the relevant form is completed it will need to be lodged electronically through the Business Portal or by a tax or BAS agent.

Once lodged, employers will receive confirmation from the ATO determining their eligibility. In the event that an employer is not eligible:

• the ATO will inform the employer and amend the employer’s assessment to include payment of the administration component ($20 per employee per quarter) in the employer’s SGC liability;
• the Part 7 penalty will be imposed and may be remitted in accordance with the ATO’s usual practices; and
• payments of SGC and contributions used to offset SGC will not be tax deductible.

What should employers do now?

Employers should take advantage of the Amnesty to put their superannuation guarantee affairs in order.  Employers should conduct a review of their superannuation practices to ensure that they comply with all applicable legislation and that they have paid all relevant superannuation contributions in respect of current and former employees and, where required, contractors.   

Norton Rose Fulbright is able to provide advice in relation to your superannuation guarantee obligations and how to take advantage of the Amnesty. 

Thanks to lawyer Kygim King from our Sydney office for contributing to this article.