The ATO has advised that it has used new powers to recover $8m in workers’ superannuation entitlements from the operators of labour-hire companies in South Australia and Victoria who have engaged in phoenix behaviour. The ATO said the network of companies provided labour-hire services such as seasonal fruit picking and meat packing and had been failing to pay workers their superannuation entitlements.

Deputy Commissioner Michael Cranston said new powers, known as Superannuation Guarantee Estimates (SGE), allow the ATO to step in where it sees what it considers likely phoenix activity and protect workers’ super entitlements before companies try to liquidate and avoid their responsibilities. He said the ATO can also issue director penalty notices which make directors personally liable for the company’s unpaid superannuation obligations.

The ATO says workers who suspect their employees are not paying their superannuation entitlements should notify their concerns by visiting

Source: ATO media release, 8 January 2015

[LTN 4, 8/1/15]

Extracts from First Schedule to the Taxation Administration Act 1953 – Estimates

268-10   Commissioner may make estimate

(1)  The Commissioner may estimate the unpaid and overdue amount of a liability (the underlying liability ) of yours:

(a)      under section 16-70 in this Schedule (requirement to pay to the Commissioner amounts you have withheld under the Pay as you go withholding rules); or

(b)      to pay superannuation guarantee charge for a * quarter under section 16 of the Superannuation Guarantee (Administration) Act 1992 , to the extent the superannuation guarantee charge has not been assessed before the Commissioner makes the estimate.

(1A)  For the purposes of this Division, your superannuation guarantee charge for a * quarter is treated as being payable on the day by which you must lodge a superannuation guarantee statement for the quarter under section 33 of the Superannuation Guarantee (Administration) Act 1992 , even if, on that day, the charge has not been assessed under that Act.

[FJM note:       ss(1)(b) & (1A) were inserted in 2012 and are the new powers referred to in the Commissioner’s press release.]

268-20   Nature of liability to pay estimate

Liability to pay amount of estimate

(1)  You must pay to the Commissioner the amount of the estimate if the Commissioner gives you notice of the estimate in accordance with section 268- 15. The amount is due and payable when the Commissioner gives you the notice.

Note:          The amount of the estimate may be reduced, or the estimate revoked, under Subdivision 268-D.

Liability to pay amount of estimate is distinct from underlying liability

(2)  Your liability to pay the amount of the estimate is separate and distinct from the underlying liability. It is separate and distinct for all purposes.