The AAT has held that held that Commonwealth superannuation contributions surcharge legislation did not validly apply the taxpayers in this case – Deputy State Solicitors of Western Australia.
The taxpayers had applied to the AAT for review of objection decisions made by the Commissioner to disallow objections they had lodged to superannuation contribution surcharge assessments for the financial years ended 30 June 1997 to 30 June 2005. During that period, they were members of the Gold State Super Scheme, a defined benefits superannuation fund administered by the Government Employees Superannuation Board (GESB). Their objections were based on the decision of the High Court in Clarke v FCT (2009) 240 CLR 272.
The taxpayers argued that the positions they occupied were positions at the higher levels of the Western Australian Government for the purposes of the implied constitutional limitation, and that on the basis of the decision in Clarke, the legislation imposing the superannuation contribution surcharge could not validly apply to them.
The Tribunal said that, after evaluating the relevant factors and the evidence as to the role and functions of the taxpayers, it concluded that the Surcharge Acts did not validly apply to them in their role as Deputy Crown Solicitors or Deputy State Solicitors, or (in the case of Mr Young) when he was acting as a Deputy Crown Solicitor. It therefore set aside the objection decisions under review insofar as they included a surcharge on the notional superannuation contributions, and held that the Surcharge Acts were invalid insofar as they purported to create the liability of the taxpayers to superannuation contributions surcharge in respect of their membership of the Gold State Super Scheme.
(AAT Case [2013] AATA 347, Re Young & Anor and FCT, AAT (sitting as the Small Taxation Claims Tribunal), Jarvis DP, AAT Ref: 2011/3256-3264, 28 May 2013.)
[LTN 114, 17/6/13]