PART 3
-
LIABILITY OF EMPLOYERS OTHER THAN THE COMMONWEALTH AND TAX-EXEMPT COMMONWEALTH AUTHORITIES TO PAY SUPERANNUATION GUARANTEE CHARGE
SECTION 19
INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALLS
19(1)
An employer
'
s
individual superannuation guarantee shortfall
for an employee for a quarter is the amount worked out using the formula:
| |
Quarterly salary or wages base, for the employer in respect of the employee, for the quarter |
× |
Charge percentage for the employer for the quarter |
|
| |
100 |
|
where:
charge percentage
, for an employer for a quarter, means:
(a)
the number specified in subsection
(2)
for the quarter (unless paragraph (b) applies); or
(b)
if the number specified in subsection
(2)
for the quarter is reduced in respect of the employee by either or both sections
22
and
23
-
the number as reduced.
History
Definition of
"
charge percentage
"
amended by No 22 of 2012, s 3 and Sch 1 item 1, by inserting
"
for the quarter
"
in para (a) and (b), applicable for the purpose of calculations under section 19 of the
Superannuation Guarantee (Administration) Act 1992
for quarters starting on and after 1 July 2013.
quarterly salary or wages base
, for an employer in respect of an employee, for a quarter means the sum of:
(a)
the total salary or wages paid by the employer to the employee for the quarter; and
(b)
any sacrificed salary or wages amounts of the employee for the quarter in respect of the employer.
History
Definition of
"
quarterly salary or wages base
"
inserted by No 95 of 2019, s 3 and Sch 7 item 4, effective 29 October 2019 and applicable in relation to working out an employer
'
s superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
History
S 19(1) amended by No 95 of 2019, s 3 and Sch 7 item 3, by substituting the formula, effective 29 October 2019 and applicable in relation to working out an employer
'
s superannuation guarantee shortfall for quarters beginning on or after 1 January 2020. The formula formerly read:
| Total salary or wages paid by the employer to the employee for the quarter |
× |
Charge percentage for the
employer for the quarter
100 |
S 19(1) and (2) substituted by No 51 of 2002, s 3 and Sch 1 item 48, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 19(1) formerly read:
19(1)
An employer
'
s individual superannuation guarantee shortfall in respect of an employee for a year (other than the 1992-93 year) is the sum of the employer
'
s quarterly shortfalls in respect of that employee for that year.
19(2)
The charge percentage for a quarter in a year described in an item of the table is the number specified in column 2 of the item.
|
Charge percentage (unless reduced under section 22 or 23)
|
|
Item
|
Column 1
Year
|
Column 2
Charge percentage
|
| 1 |
Year starting on 1 July 2013 |
9.25 |
| 2 |
Year starting on 1 July 2014 |
9.5 |
| 3 |
Year starting on 1 July 2015 |
9.5 |
| 4 |
Year starting on 1 July 2016 |
9.5 |
| 5 |
Year starting on 1 July 2017 |
9.5 |
| 6 |
Year starting on 1 July 2018 |
9.5 |
| 7 |
Year starting on 1 July 2019 |
9.5 |
| 8 |
Year starting on 1 July 2020 |
9.5 |
| 9 |
Year starting on 1 July 2021 |
10 |
| 10 |
Year starting on 1 July 2022 |
10.5 |
| 11 |
Year starting on 1 July 2023 |
11 |
| 12 |
Year starting on 1 July 2024 |
11.5 |
| 13 |
Year starting on or after 1 July 2025 |
12 |
History
S 19(2) substituted by No 96 of 2014, s 3 and Sch 6 item 1, applicable for the purpose of calculations under section
19
of the
Superannuation Guarantee (Administration) Act 1992
for quarters starting on or after 1 July 2015. S 19(2) formerly read:
19(2)
The charge percentage for a quarter in a year described in column 1 of an item of the table is the number specified in column 2 of the item.
|
Charge percentage (unless reduced under section 22 or 23)
|
|
Item
|
Column 1
Year
|
Column 2
Charge percentage
|
| 1 |
Year starting on 1 July 2013 |
9.25 |
| 2 |
Year starting on 1 July 2014 |
9.5 |
| 3 |
Year starting on 1 July 2015 |
10 |
| 4 |
Year starting on 1 July 2016 |
10.5 |
| 5 |
Year starting on 1 July 2017 |
11 |
| 6 |
Year starting on 1 July 2018 |
11.5 |
| 7 |
Year starting on or after 1 July 2019 |
12 |
S 19(2) substituted by No 22 of 2012, s 3 and Sch 1 item 2, applicable for the purpose of calculations under section 19 of the
Superannuation Guarantee (Administration) Act 1992
for quarters starting on and after 1 July 2013. S 19(2) formerly read:
19(2)
The charge percentage is 9.
Note:
This might be reduced under section 22 or 23.
S 19(1) and (2) substituted by No 51 of 2002, s 3 and Sch 1 item 48, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 19(2) formerly read:
19(2)
Subject to subsection (4), an employer
'
s quarterly shortfall in respect of an employee for a quarter is the amount worked out using the formula:
| Total salary or wages paid by the employer to the employee for the quarter |
× |
Charge percentage for the employer for
the quarter
100 |
where:
'
Charge percentage for the employer for the quarter
'
means the number ascertained in relation to that employer and that quarter according to section 20 or 21 or that number as reduced, in respect of the employee, by section 22 or 23, as the case may be.
S 19(2) amended by No 170 of 1995.
19(2A)
If an employer makes one or more contributions (the
no choice contributions
) to an RSA or a complying superannuation fund other than a defined benefit superannuation scheme, for the benefit of an employee during a quarter and the contributions are not made in compliance with the choice of fund requirements, the employer
'
s
individual superannuation guarantee shortfall
for the employee for the quarter is increased by the amount worked out in accordance with the formula:
where:
notional quarterly shortfall
is the amount that would have been worked out under subsection
(1)
if the no choice contributions had not been made.
Note 1:
See also subsection
(2E)
and section
19A
.
Note 2:
Part
3A
sets out the choice of fund requirements.
History
S 19(2A) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2B)
If:
(a)
a reduction of the charge percentage for an employee for a quarter is made under subsection
22(2)
in respect of a defined benefit superannuation scheme; and
(b)
there is at least one relevant day in the quarter where, if contributions (the
notional contributions
) had been made to the scheme by the employer for the benefit of the employee on the day, the notional contributions would have been made not in compliance with the choice of fund requirements; and
(c)
section 20 (which deals with certain cases where defined benefit members cannot choose another fund) does not apply to the employer in respect of the employee in respect of the scheme for the quarter;
the employer
'
s
individual superannuation guarantee shortfall
for the employee for the quarter is increased by the amount worked out in accordance with the formula:
where:
notional quarterly shortfall
is the amount that would have been worked out under subsection
(1)
if no reduction were made under subsection
22(2)
in respect of the scheme.
number of breach of condition days
is the number of relevant days in the quarter on which, if a contribution had been made to the scheme by the employer for the benefit of the employee, those contributions would have been made not in compliance with the choice of fund requirements.
Note 1:
See also subsection
(2E)
and section
19A
.
Note 2:
Part
3A
sets out the choice of fund requirements.
History
S 19(2B) amended by No 80 of 2020, s 3 and Sch 1 item 1, by substituting
"
(which deals with certain cases where defined benefit members cannot choose another fund)
"
for
"
(which deals with certain cases where no contributions are required)
"
in para (c), effective 4 September 2020.
S 19(2B) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2C)
The following days in a quarter are
relevant days
for the purposes of subsection
(2B)
:
(a)
if the value of
B
in the formula in subsection
22(2)
for the quarter is 1
-
every day in the quarter; or
(b)
in any other case
-
every day in the quarter that is in the shorter of the scheme membership period or the certificate period referred to in subsection
22(2)
.
History
S 19(2C) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2CA)
For the purposes of paragraph
(2B)(b)
, if the employee is a defined benefit member of a superannuation fund, subsection
32C(2)
applies in relation to the employee and the fund as if it did not include paragraph
32C(2)(c)
(requirement that fund includes a MySuper product).
History
S 19(2CA) inserted by No 171 of 2012, s 3 and Sch 5 item 3, effective 1 January 2014.
19(2D)
A reference in subsections
(2A)
and
(2B)
to an employer
'
s individual superannuation guarantee shortfall being increased includes a reference to the shortfall being increased from nil.
History
S 19(2D) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2E)
The Commissioner may, after taking account, wherever appropriate, of the operation of section
19A
, reduce (including to nil) the amount of an increase in an employer
'
s individual superannuation guarantee shortfall for an employee for a quarter under subsection
(2A)
or
(2B)
.
Note:
The Commissioner must have regard to guidelines in force under subsection
21(1)
when deciding whether or not to make a decision under this subsection.
History
S 19(2E) amended by No 46 of 2021, s 3 and Sch 1 item 2, by substituting the note, effective 23 June 2021 and applicable in relation to an employee
'
s employment by an employer if that employment starts on or after 1 November 2021. The note formerly read:
Note:
The Commissioner must have regard to written guidelines when deciding whether or not to make a decision under this subsection: see section 21.
S 19(2E) amended by No 82 of 2005, s 3 and Sch 1 item 2, by inserting
"
, after taking account, wherever appropriate, of the operation of section 19A,
"
after
"
The Commissioner may
"
, effective 1 July 2005.
S 19(2E) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2F)
If:
(a)
subsection
(2G)
applies to one or more contributions for a quarter that were not able to be made by an employer to a particular fund for the benefit of an employee; and
(b)
after the period of 28 days after the end of the quarter, the employer made those contributions to any fund for the benefit of the employee;
the Commissioner may reduce (including to nil) so much of the amount of the employer
'
s individual superannuation guarantee shortfall for the employee for the quarter as is due to the lateness of those contributions.
Note:
The Commissioner must have regard to guidelines in force under subsection
21(2)
when deciding whether or not to make a decision under this subsection.
History
S 19(2F) inserted by No 46 of 2021, s 3 and Sch 1 item 3, effective 23 June 2021.
19(2G)
This subsection applies to a contribution for a quarter that was not able to be made by an employer to a particular fund for the benefit of an employee if:
(a)
the employer attempts to make the contribution at a particular time; and
(b)
at that time, there is no chosen fund for the employee; and
(c)
at that time, the most recent notification to the employer:
(i)
by the Commissioner; and
(ii)
relating to a request by the employer (or by the employer
'
s agent) for the Commissioner to identify any stapled fund for the employee;
is that the Commissioner is satisfied that the fund is the stapled fund for the employee; and
(d)
the fund does not accept the contribution from the employer for the benefit of the employee.
History
S 19(2G) inserted by No 46 of 2021, s 3 and Sch 1 item 3, effective 23 June 2021.
19(3)
For the purposes of the definition of
quarterly salary or wages base
in subsection
(1)
, disregard an amount in a quarter if:
(a)
the amount would be covered by paragraph (a) of that definition for the quarter (about amounts paid to the employee); but
(b)
the amount is taken into account under paragraph (b) of that definition (about sacrificed salary or wages amounts) for any quarter.
Note:
This prevents double counting if a sacrificed salary or wages amount is later paid as salary or wages, instead of being contributed to superannuation.
History
S 19(3) substituted by No 95 of 2019, s 3 and Sch 7 item 5, effective 29 October 2019 and applicable in relation to working out an employer
'
s superannuation guarantee shortfall for quarters beginning on or after 1 January 2020. S 19(3) formerly read:
19(3)
If the total salary or wages paid by an employer to an employee in a quarter exceeds the maximum contribution base for the quarter, the total salary or wages to be taken into account for the purposes of the application of subsection (1) in relation to the quarter is the amount equal to the maximum contribution base.
S 19(3) amended by No 41 of 2005, s 3 and Sch 10 item 232 by substituting
"
subsection (1)
"
for
"
subsection (2)
"
, effective 1 April 2005.
S 19(3) amended by No 51 of 2002, s 3 and Sch 1 item 49, by substituting
"
the quarter
"
for
"
the contribution period that corresponds to that quarter
"
, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 19(3) inserted by No 208 of 1992.
19(4)
If the quarterly salary or wages base, for an employer in respect of an employee, for a quarter exceeds the maximum contribution base for the quarter, the employer
'
s quarterly salary or wages base to be taken into account for the purposes of the application of subsection
(1)
in relation to the quarter is the amount equal to the maximum contribution base.
History
S 19(4) inserted by No 95 of 2019, s 3 and Sch 7 item 5, effective 29 October 2019 and applicable in relation to working out an employer
'
s superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
S 19(4) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(4) formerly read:
19(4)
Despite subsections (1), (2A) and (2B), an employer
'
s
individual superannuation guarantee shortfall
for an employee for a quarter, and for all later quarters, is nil if, during the quarter, the employee gives the employer:
(a)
a statement in writing by the employee electing that the employer should not be liable to superannuation guarantee charge in respect of the employee; and
(b)
statements for the purposes of this paragraph in relation to the employee, where:
(i)
the sum of the amounts specified in all of the statements;
exceeds:
(ii)
the pension RBL, under section 140ZD of the
Income Tax Assessment Act 1936
, for the year of income (within the meaning of that Act) in which the statements are given.
S 19(4) amended by No 102 of 2004, s 3 and Sch 1 item 15B, by substituting
"
Despite subsections (1), (2A) and (2B), an employer
'
s
individual superannuation guarantee shortfall
"
for
"
An employer
'
s individual superannuation guarantee shortfall
"
, effective 1 July 2005.
S 19(4) amended by No 51 of 2002, s 3 and Sch 1 item 50, by substituting
"
individual superannuation guarantee shortfall for an employee
"
for
"
quarterly shortfall in respect of an employee
"
, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 19(4) inserted by No 170 of 1995.
19(5)
(Repealed by No 15 of 2007)
History
S 19(5) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(5) formerly read:
19(5)
The election is irrevocable.
S 19(5) inserted by No 170 of 1995.
19(6)
(Repealed by No 15 of 2007)
History
S 19(6) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(6) formerly read:
19(6)
For the purposes of paragraph (4)(b), one statement that may be given is a statement in writing by the Commissioner specifying the sum of the adjusted RBL amounts of previous benefits (within the meaning of section 140ZA of the
Income Tax Assessment Act 1936
) received by the employee before the time when the statement is given.
S 19(6) inserted by No 170 of 1995.
19(7)
(Repealed by No 15 of 2007)
History
S 19(7) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(7) formerly read:
19(7)
For the purposes of paragraph (4)(b), another statement that may be given is a statement in writing, by the trustee or manager of a benefit body (within the meaning of section 15A) specifying the entitlement amounts (within the meaning of that section) of the employee in relation to the benefit body at the time the statement is given.
S 19(7) inserted by No 170 of 1995.
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