House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Treasurer, the Hon John Dawkins, M.P.)

Chapter 10 - Miscellaneous Provisions

Overview of the Chapter

This Chapter deals with a number of miscellaneous matters including:

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treatment of partnerships and unincorporated associations;

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judicial notice of signature;

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evidence;

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access to premises and other information gathering powers;

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right of contribution;

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record keeping requirements; and

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regulations.

Explanation

Treatment of partnerships and unincorporated associations

Partnerships and unincorporated associations are not persons at law, but are deemed to be both persons and employers for purposes of the Bill. Certain requirements are imposed relating to the obligations of partners in partnerships, and members and controlling officers of unincorporated associations.

An obligation incurred by the partnership or association is imposed on each partner or, in the case of unincorporated associations, its officers. The partners and the members of the association are jointly and severally liable for amounts payable. Similarly, action may be taken against individual partners or officers for offences committed by the partnership or association. It is a defence of a partner or officer against such a prosecution if the person was not involved in any way with the offences. [Clauses 66 and 67]

Judicial notice of signature

The Bill requires notice to be taken, by a Court, Tribunal or anyone acting judicially, of the signature of a person who holds or has held the office of Commissioner, Second Commissioner or Deputy Commissioner. This ensures that the signatures of these officers are acceptable even though they are not personally present. [Clause 68]

Evidence

The Bill specifies the evidentiary value of certain documents and copies of documents. This is necessary to ensure that the only avenue for appeal is to dispute the amount of the employer's liability for the superannuation guarantee charge.

The documents covered include those issued or given, or purporting to be issued or given, under the hand of the Commissioner, a Second Commissioner or a Deputy Commissioner. The rules applying to such documents are as follows:

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the production of a notice of assessment or document purporting to be a copy of such a notice is conclusive evidence of the due making of the assessment and that the amounts and all particulars of the assessment are correct except in proceedings before a Tribunal or court concerning an assessment; [Subclause 69(1)]

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the production of a document purporting to be a copy of a document issued or given by the Commissioner, a Second Commissioner or Deputy Commissioner is prima facie evidence of the original document being issued or given; [Subclause 69(2)]

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the production of a document purporting to be a copy of, or extract from, a superannuation guarantee statement or notice of assessment is evidence of the matters in the document to the same extent as the original document had it been produced; [Subclause 69(3)]

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the production of a signed certificate certifying that a specified sum was payable at the date of the certificate as superannuation guarantee charge or penalty is prima facie evidence of the matter stated in the certificate. [Subclause 69(4)]

Also, a superannuation guarantee statement purporting to be made or signed by or on behalf of an employer is prima facie evidence that the statement was made by or on the authority of the employer. [Subclause 69(5)]

Access to premises and obtaining information and evidence

The Bill contains provisions dealing with access to premises and information gathering powers. Similar provisions are found in other Taxation Acts - for example, sections 263 and 264 of the Income Tax Assessment Act 1936. The provisions are necessary for the Commissioner to ensure compliance with the Bill.

The access and information gathering powers may be used, for example, to ensure that an employer has provided superannuation support to the extent to which the employer claims. In such a case, it may be necessary for the Commissioner to inspect documents which may not otherwise be available for inspection if access and information gathering powers were not included in the Bill.

Under these powers, an authorised must be given entry at any reasonable time, to land or premises. The officer must also be given full and free access to all books, records and other documents held by any person, and the right to inspect, examine or make copies therefrom. [Subclause 70(1)] An 'authorised officer' is an officer or employee within the meaning of the (Commonwealth) Public Service Act 1922 who has been authorised in writing by the Commissioner of Taxation to carry out certain duties. [Subclause 6(1)]

The officer is not entitled to remain on the land or premises unless a written authority signed by the Commissioner is produced at the request of the occupier. [Subclause 70(2)]

The occupier of land or premises entered or proposed to be entered by an authorised officer is required to provide the officer with all reasonable facilities and assistance to carry out official duties. For example, an authorised officer will be entitled to reasonable use of photocopying, telephone, fax and light and power facilities and of work space and facilities to extract relevant information stored on computer. In addition, the officer will be entitled to reasonable assistance in the form of, for example, advice as to where relevant documents are 1located and access to areas where such documents are located. [Subclause 70(3)]

The maximum penalty on conviction for failure to comply with the access to premises provisions is a fine of $1000.

The Commissioner will also be able to require, by notice in writing, any person to:

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furnish information on oath or otherwise;

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attend before the Commissioner and answer questions on oath or otherwise; or

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produce any documents in the custody or under the control of that person. [Subclause 71(1),(2) and (3)]

The regulations must prescribe scales of expenses to be allowed to persons required to attend before the Commissioner. [Subclause 71(4)]

Right of Contribution

If two or more persons are jointly and severally liable to pay an amount of superannuation guarantee charge or additional superannuation guarantee charge, and one of those persons has either fully or partially paid the charge, that person will be able to recover from any other liable person an amount considered just and equitable by a court of competent jurisdiction. This ensures that if one person pays more than their proportionate share, the person can recover it from the other person or persons. [Clause 72]

Record keeping requirements

The Bill imposes certain record keeping requirements on employers. There is a specific requirement on employers who are liable to pay superannuation guarantee charge to keep details of the basis of the calculation of amounts shown in the superannuation guarantee statement. These amounts are:

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the employer's annual national payroll for the employer's base year;

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the amount of each individual superannuation guarantee shortfall;

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the amount of the nominal interest component for the year;

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the amount of the administration component for the year.

The penalty for failure to keep these records is set out in Chapter 9. [Subclause 54(2)]

There is also a general requirement on all employers to keep records that record and explain all transactions and other acts engaged in by the employer under the Bill. This general requirement applies irrespective of whether the employer is liable to pay superannuation guarantee charge. [Subclause 73(1)]

The type of records which are to be kept include (but not exhaustively) documents relevant to ascertaining:

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the employer's annual national payroll for the employer's base year;

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each individual superannuation guarantee shortfall. [Subclause 73(2)]

The records must be kept:

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in writing in the English language or, if not in written form (e.g., in an electronic medium such as magnetic tape or computer disc), in a form which is readily accessible and convertible into writing in English;

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so as to enable the employer's liability under the Bill to be readily ascertainable. [Subclause 73(3)]

The records must be retained for 5 years. The 5 year period runs from the day on which the records were prepared or obtained, or from when the transactions or acts to which those records relate were completed, whichever is the later. [Subclause 73(4)]

An employer need not retain records where:

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the Commissioner has notified the employer that retention of the records is not required; or

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in the case of a company, the company has gone into liquidation and been finally dissolved. [Subclause 73(5)]

The maximum penalty on conviction for failure to comply with the record keeping requirements without reasonable excuse is a fine of $3000. [Subclause 73(6)]

Regulations

The Governor-General is authorised to make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for administering the Bill.

The Bill also provides for regulations to prescribe penalties not exceeding $500 for offences against the regulations. [Clause 74]