Superannuation Guarantee (Administration) Act 1992

PART 3 - LIABILITY OF EMPLOYERS OTHER THAN THE COMMONWEALTH AND TAX-EXEMPT COMMONWEALTH AUTHORITIES TO PAY SUPERANNUATION GUARANTEE CHARGE

SECTION 23A OFFSETTING LATE PAYMENTS AGAINST CHARGE

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23A(1)

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A contribution (other than a sacrificed contribution) to a complying superannuation fund or an RSA made by an employer for the benefit of an employee is offset under subsection (3) if:

(a) the contribution is made:

(i) after the end of the period of 28 days after the end of a quarter; and

(ii) before the employer ' s original assessment for that quarter is made; and

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(b) the employer elects, in the approved form, that the contribution be offset.

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23A(2)

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The election must be made:

(a) in a statement having effect under section 35 as the employer's assessment for the quarter; or

(b) within 4 years after the employer's original assessment for the quarter is made.

The election cannot be revoked.

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History

S 23A(2) amended by No 14 of 2009, s 3 and Sch 3 item 2, by substituting " original assessment for the quarter is made " for " superannuation guarantee charge for the quarter became payable " in para (b), applicable to elections under section 23A of the Superannuation Guarantee (Administration) Act 1992 made on or after 26 March 2009.

S 23A(2) substituted by No 38 of 2008, s 3 and Sch 2 item 2, effective 24 June 2008. No 38 of 2008 (as amended by No 56 of 2010, s 3 and Sch 6 item 106), s 3 and Sch 2 items 7A, 8 and 9, contains the following transitional provisions:

7A Application of section 23A of the Superannuation Guarantee (Administration) Act 1992 as amended
(1)
Section 23A of the Superannuation Guarantee (Administration) Act 1992 , as amended by this Schedule, applies to:

(a) contributions made before, on or after 1 January 2006; and

(b) elections made on or after 24 June 2008.

Note:

The amendments of that section made by this Schedule commenced on 24 June 2008.

(2)
This item has effect subject to items 8 and 9.

(3)
To avoid doubt, this item:

(a) has effect despite subitem 10(1) of Schedule 6 to the Tax Laws Amendment (Loss Recoupment Rules and Other Measures) Act 2005 ; and

(b) does not affect the application of amendments of section 23A of the Superannuation Guarantee (Administration) Act 1992 commencing after the commencement of the amendments of that section made by this Schedule.

Note:

Subitem 10(1) of Schedule 6 to the Tax Laws Amendment (Loss Recoupment Rules and Other Measures) Act 2005 applied the amendment inserting section 23A in the Superannuation Guarantee (Administration) Act 1992 to contributions made on or after 1 January 2006.

8 Transitional - charge remaining payable at commencement
(1)
If, for the purposes of the Superannuation Guarantee (Administration) Act 1992 , superannuation guarantee charge:

(a) became payable under an assessment before 24 June 2008 (apart from item 7A); and

(b) was not fully paid before 24 June 2008; this item applies in relation to the employer's liability to pay the proportion of the charge (the remaining charge ) remaining payable at that commencement.

(2)
After 24 June 2008, subsection 23A(2) applies as if the remaining charge became payable at that commencement.

(3)
If it is proposed to amend the assessment to effect a reduction, as a result of an offset under section 23A of that Act, in the employer's liability to pay the remaining charge, then:

(a) subsection 37(3) of that Act applies as if the assessment were made at 24 June 2008; and

(b) paragraph 37(5)(a) of that Act applies as if the remaining charge became payable under the assessment at that commencement.

(4)
If the assessment was of superannuation guarantee charge payable in relation to a year (instead of a quarter), then that Act also applies as if references in that Act to a quarter were references to a year.
9 Transitional - charge for a year that becomes payable after commencement
9
If, for the purposes of the Superannuation Guarantee (Administration) Act 1992 , superannuation guarantee charge:

(a) is payable in relation to a year (instead of a quarter) happening before 24 June 2008 (apart from item 7A); and

(b) does not become payable until after that commencement;
then that Act applies, in relation to the employer's liability to pay the charge, as if references in that Act to a quarter were references to a year.

S 23A(2) formerly read:

23A(2)
The election must be made within 4 years after the employer's superannuation guarantee charge for the quarter became payable. The election cannot be revoked.

23A(3)
The contribution is offset, at the time the employer's original assessment for the quarter is made, against the employer's liability to pay superannuation guarantee charge to the extent that the liability relates to:

(a) that part of the employer's nominal interest component for the quarter that relates to the employee; or

(b) the employer's individual superannuation guarantee shortfall for the employee for the quarter.

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23A(4)
The contribution is offset against that part of the employer's nominal interest component for the quarter that relates to the employee before any remainder is offset against the employer's individual superannuation guarantee shortfall for the employee for the quarter.

23A(4A)

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If the election happens after the employer's assessment for the quarter is made, then, for the offset to take effect, the assessment must be amended accordingly under section 37 .

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23A(5)
A contribution to a superannuation fund or an RSA made by an employer for the benefit of an employee that is taken into account under this section in relation to a quarter is not to be taken into account:

(a) under this section in relation to any other quarter; or

(b) under section 22 or 23 .

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History

S 23A inserted by No 147 of 2005, s 3 and Sch 6 item 5, applicable to contributions made on or after 1 January 2006.

Former S 23A repealed by No 142 of 2004, s 3 and Sch 1 item 1, applicable to contributions made on or after 1 January 2005. S 23A formerly read:

SECTION 23A EMPLOYER'S REPORTING OBLIGATIONS FOR SUPERANNUATION CONTRIBUTIONS
23A(1)
This section applies if an employer makes a contribution to a superannuation fund or an RSA, for the benefit of an employee, that reduces the rate of the employer's charge percentage under section 23 (other than a contribution that is taken to have been made because of subsection 23(9A) ).
Note:

This section does apply to contributions that are taken to have been made because of subsection 23(13) .

23A(2)
The employer must give a report to the employee in writing identifying the amount of the contribution and setting out any other information required by the regulations.

23A(3)
The employer must give the report within 30 days of making the contribution.

23A(4)
An employer commits an offence if:

(a) the employer makes a contribution to an RSA or a superannuation fund for the benefit of an employee; and

(b) the contribution reduces the rate of the employer's charge percentage under section 23 ; and

(c) the employer does not give a report to the employee as required.
Penalty: 30 penalty units.

Note:

False or misleading reports are covered by the offences in sections 137.1 and 137.2 of the Criminal Code .

23A(5)
Strict liability applies to paragraph (4)(b).
Note:

For strict liability , see section 6.1 of the Criminal Code .

S 23A inserted by No 51 of 2002. For application and transitional provisions, see note under s 5(3).

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