On 24 January, 2018, the Minister for Revenue released a draft Bill and announced other measures intended to give effect to its Superannuation Guarantee (SG) Integrity Package (which she announced on 29 August 2017).
The draft Bill would:
- allow the ATO, in cases where employers fail to comply with their SG obligations, to issue directions to pay unpaid SG and undertake SG education courses;
- introduce criminal penalties for failure to comply with a direction to pay. In cases where employers defy directions to pay their SG liabilities, the ATO will be able for the first time to apply for court-ordered penalties, including up to 12 months imprisonment;
- allow the ATO to disclose more information about SG non-compliance to affected employees;
- extend Single Touch Payroll (STP) to all employers, regardless of the number of employees, from 1 July 2019, improve the reporting of superannuation obligations and improve the Australian Taxation Office’s ability to get real time information about an employer’s compliance;
- facilitate more regular reporting by superannuation funds eg (i) Commissioner will be able to provide superannuation providers with a grace period for correcting false or misleading statements in relation to member information statements without giving rise to penalties; (ii) reintroduce bi-annual statements for lost members.
- improve the operation of the ATO’s collection and compliance measures eg strengthening the integrity of the director penalty provisions for directors who fail to comply with their SGC and PAYG withholding obligation; and
- streamline employee commencement processes eg allow the pre-filling of an individual’s TFN declaration and superannuation standard choice form by the Commissioner to the individual’s employer.
The Minister also mentioned the Government’s plan to have ‘director identification numbers’ – to help track directors who are depriving their employees of the mandated level of Super.
COMMENTS are due by 16 February 2018.
EDITORIAL COMMENT – The Government/Parliament still has not given employees a statutory (universal) right to force payment of the mandated level of contributions to their superannuation fund (or a central superannuation fund). With this, class actions could be launched, to privatise all the ATO’s collection efforts, which are a step once removed (via the SGC tax device for mandating a particular level of superannuation contributions, for employers to pay, on behalf of their employees). The Commonwealth, ought, I would have thought, had Constitutional power to do this, if not under the ‘incidental’ power (relating to taxation) then under the same Constitutional powers as it has used to produce mandatory superannuation legislation (SIS Act), which a combination of the ‘Corporations’ powers (including those transferred by the States) and the aged pension power.
Study questions (answers below*)
- Is the name of the draft bill: Treasury Laws Amendment (Taxation and Superannuation Guarantee Integrity Measures) Bill 2018? (hint: click on the ‘draft Bill’ link).
- Do the proposed measures include giving the ATO power to give directions to pay SGC but no criminal penalty for failure to comply?
- Will the extension of the ‘Single Touch Payroll’ system increase the ATO’s capacity to get ‘real time’ information about employers’ compliance?
- Does the proposed bill include the introduction of a Directors’ Indentifation Number’ to help track non-complying directors?
- Do any of these measures include giving employees a statutory right to compel payment of their superannuation contributions directly to a fund?