In brief - It may be beneficial for employers that are considering voluntary disclosure of SGC liabilities to hold off until the Bill is passed

The Federal government recently introduced legislation to implement a revised version of the superannuation guarantee amnesty that lapsed when the Federal election was called. My article Voluntary disclosure on unpaid superannuation guarantee charge liabilities has more information on the previous version of the amnesty.

The revised amnesty is contained in Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019 (Cth). The revised amnesty applies to employers that voluntarily disclose superannuation guarantee charge (SGC) liabilities within six months after the Bill receives royal assent.

Like the previous version, the revised amnesty:

  • will apply to SGC liability for any period from 1 July 1992 to 31 March 2018 (periods after 31 March 2018 are not eligible)
  • allows employers to claim tax deductions for the SGC
  • will not impose the administration component of the SGC ($20 per employee per quarter), and
  • will not impose penalties

The difference is that if voluntary disclosure is not made within six months after the Bill receives royal assent, penalties cannot be remitted by the ATO below 100% of the SGC. Effectively, this imposes a minimum penalty of 100% for employers that do not voluntarily disclose.

The ATO has indicated that it will apply the current law until the Bill is passed. See proposed superannuation guarantee amnesty. The Bill has been referred to the Senate Economics Legislation Committee and its report is due by 7 November 2019.

The differences between the current law and the revised amnesty are:

Current law

Revised amnesty

The SGC is not deductible.

The SGC is deductible.

The administration component is payable.

The administration component is not payable.

The ATO has a discretion to remit penalties in full or part.

No penalties are imposed if voluntary disclosure is made during the amnesty period. Disclosure outside the amnesty period will be subject to a minimum penalty of 100% of the SGC.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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