The ATO on Thur 5.6.2014, issued a Decision Impact Statement on the decision in AAT Case [2014] AATA 205, Re Dominic B Fishing Pty Ltd and FCT. In that case, the AAT held that fishing crew members on a commercial fishing vessel operated by the taxpayer, were not “employees”, at common law, or under the extended meaning of that term in s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (SGAA). As such, the taxpayer company was not required to make superannuation contributions in respect of the crew members.
The ATO said the Tribunal’s view that the case was limited to its own facts and does not provide any authoritative guidance on cases concerning whether a worker is an employee for the purposes of the SGAA was consistent with the Commissioner’s position. In relation to the Tribunal’s finding that the fishermen were in a joint venture with the taxpayer, the ATO said the Commissioner did not have an opportunity to make submissions to the Tribunal about this issue in the case. It said the Commissioner will seek to make full submissions on this point in similar cases that arise in the future, with a view to further clarifying the issue of when a fisherman or fishermen is or is not in a joint venture with a boat owner.
[FJM Note: About 6 months before this case, there was another fishermen case where the taxpayer lost such an argument and had to pay SGC – see my note on this Re Dominic B Fishing Pty Ltd case in the ‘April Developments’ edition of Morgan’s Tax Month (under AAT Cases), as it makes reference to this previous case that went the other way.]
[LTN 107, 5/6/14]