Unpacking the Superannuation Guarantee: just who is an employee?

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The Superannuation Guarantee Amnesty period flew by during the COVID-19 lockdowns with many taxpayers missing the opportunity to utilise the amnesty to correct mistakes or oversights in their payment of superannuation.

During the Amnesty period, we learnt just how easy it is for employers to have a shortfall in their SGC obligations – even where they have done their best to complying with the laws. And in a digital world where the ATO has increased access to data to identify and target shortfalls, SGC compliance is more important than ever before for employers and the tax practitioners who work with them.

If there’s anyone who can provide insight into how tax practitioners can assist clients to meet their SGC compliance obligations, Neal Dallas, CTA, Principal at McInnes Wilson Lawyers is the man for the job.

Neal has been a member of The Tax Institute since 1997 and has been a regular presenter at our events and conferences over the years. His current practice is focused around the areas of small business CGT, taxes related to estate planning and structuring and, of course, superannuation.

In his session at the upcoming 2021 Private Business Tax Retreat, Managing the superannuation guarantee minefield, Neal will explore topics including defining an employee for SGC purposes, safeguards to reduce risk of shortfalls, managing the clearing house timing issue and identifying shortfalls and offsetting payments.

Perhaps the first challenge for employers is: who is an employee as far as the Superannuation Guarantee is concerned?

“Issues around who does or doesn’t have an obligation to make contributions under the superannuation guarantee regime continue to catch out clients,” Neal explained.

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The Superannuation Guarantee Act, which employers must be in compliance with, gives the terms “employee” and “employer” their typical meanings, but also expands those meanings, Neal explains in the technical paper accompanying his session.

Those expansions, covered in depth in Neal’s session, may trip tax practitioners and their clients up, as they mean particular groups of people are considered employees, for Superannuation purposes. For example, members of boards of directors who receive payment for carrying out those roles are employees of the company in relation to the carrying out of their duties as a director.

On the flipside, there are exceptions to who counts as an employee under Superannuation legislation which tax practitioners also need to take into account.

All this means that meeting superannuation obligations is not as simple as some employers may think. And the window to remedy mistakes without penalty is now closed.

“Often non-compliance is not detected until many months or years after the breach arose. This can compound the penalties that are imposed,” Neal explained.

“Recently the superannuation guarantee amnesty gave employers a window to correct past issues. Now that the window is closed, we are moving into a period where the ATO is likely to step up its investigation and compliance activity. With a tougher penalty regime now applying, getting superannuation guarantee wrong can be even more costly.”

Ultimately, the lesson, he said, is that, “It will be better to address superannuation guarantee non-compliance sooner rather than later.”

So, if you work with business clients who have super obligations to meet, Neal’s insights are indispensable. Here’s how to catch him at the 2021 Private Business Tax Retreat.


Session details

Session: Session 9 – Managing the superannuation guarantee minefield

Presenter: Neal Dallas, CTA

When: 10:15am –11:15am, Friday, 26 February 2021 (Day 2)


About the 2021 Private Business Tax Retreat

Celebrating it’s 10th anniversary this year, the Private Business Tax Retreat is an intensive event focused on providing senior private client advisers with an opportunity to immerse themselves in contemporary tax issues that directly affect their clients. Offered as both an online and face-to-face experience, the expert driven program attracts delegates from around the country.

When: 25 February 2021– 26 February 2021

Where: Attend virtually from the comfort of your own home or join us at Palazzo Versace on the Gold Coast. Located at Main Beach, this outstanding venue is a one-hour drive south of Brisbane, or a 40-minute drive north of Gold Coast Airport. Special room rates are available through our travel provider, Accommodation Link.


About Neal Dallas

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Neal Dallas, CTA, is a Principal in McInnes Wilson Lawyers’ Superannuation and Revenue Group. He has extensive experience advising clients in the areas of superannuation, tax, estate planning and asset protection. He has advised corporate, industry and self-managed funds, their employers and members across a range of superannuation-related matters including fund establishment, fund mergers and transfers, benefit payment issues, superannuation borrowing arrangements, taxation of contributions and earnings, fund wind-ups and trustee training.

When he isn’t knee-deep in tax, Neal enjoys cycling and adding to his bromeliad collection



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