In a related matter, the Full Federal Court upheld the decision at first instance in Kelly v FCT (No 2) [2012] FCA 689 that the taxpayer’s family trust was not entitled to a deduction under s 290-60 of the ITAA 1997 for super contributions of id=”mce_marker”00,000 made on behalf of the husband and wife trustee directors as they were not “employees” of the trust even under the extended the definition of the term “employee” in s 12 of the Superannuation Guarantee (Administration) Act 1992.

(Kelly v FCT [2013] FCAFC 88, Full Federal Court, Lander, Siopis, Gilmour JJ, 8 August 2013.)

[FJM Note:    Section 12(2) of the SG Act of the SGAA relevantly provides, a director of a body corporate will be deemed to be an employee, when that director is “entitled to payment” for the performance of duties as a member of the executive body of the body corporate, but a director as a fiduciary is not entitled to payment unless authorized by the Company’s constitution, which in this case, required a resolution be passed in general meeting – which it had not in this case.]

[LTN 153, 9/8/13]