Government implementing SG amnesty without legislation: Labor

Labor has accused the Government of having the ATO implement, at least partially, an amnesty for employers who haven’t paid their Super Guarantee obligations without the policy passing the Parliament.

Shadow Assistant Treasurer Andrew Leigh pointed to reports that the ATO is waiving penalties for employers who have come forward before the Government’s amnesty is legislated.

In May last year the Government announced a 12 month amnesty for employers who hadn’t paid the superannuation entitlements for workers. The amnesty – if it was legislated – would have run from the date of announcement.

However the legislation is stuck in the Parliament – it was last debated in June 2018. If an election is called for May, as expected, then only two Senate sitting days are scheduled before the announced end date of the amnesty.

According to a report in the Sydney Morning Herald the policy has been dropped, and the ATO is now using its discretion to waive penalties for some employers who have already come forward.

This is despite the ATO website warning that: “Until law giving effect to the proposed Superannuation Guarantee Amnesty is enacted, we will continue to apply the existing law, including the application of the mandatory administration component ($20 per employee per period) to SG charge statements lodged by employers.”

The report also has the ATO designing amnesty applications, which an accounting firm claimed was sent to one of its clients.

Update: The ATO is reportedly waiving the Part 7 penalty in full for employers making a voluntary disclosure, which the ATO has the power to do. The Part 7 penalty applies for lodging a Superannuation Guarantee Charge (SGC) statement late or failing to provide information to an audit; the maximum penalty is 200% of the SGC. The ATO website still lists Part 7 penalties not being applied as one of the benefits of the amnesty. The other benefits of the proposed amnesty include not having to pay the $20 administration component and catch-up payments would become tax deductible.

Assistant Treasurer Stuart Robert blamed the failure to pass the legislation on “obstructionist behaviour” by Labor. He also said the original announcement, which he pointed out was made by his predecessor Kelly O’Dwyer, wasn’t misleading as it said what would occur if the amnesty was legislated

Labor’s Andrew Leigh said: “The Liberals are letting dodgy employers off the hook for failing to pay workers’ superannuation.”

“Employers must obey the law. There are penalties in law which remain for ripping off workers and not paying superannuation – which is a fine equal to up to 200 percent of the amount of superannuation owed. These have remain in force and have not changed,” he said.

“Yet today, it has been revealed that the Liberals asked the tax office to administer their amnesty anyway. Reports suggest that many business owners applied under the amnesty. They have apparently been treated by the tax office as though the amnesty had passed the Parliament.”

“The Liberals – without any tick from the Parliament – are letting employers who have failed pay superannuation entitlements from an employee for up to 25 years off the hook.”

He said that this was “completely unacceptable”, and that Labor had written to the ATO Commissioner seeking information about the “debacle”.

“Superannuation is part of a worker’s pay and conditions. Bosses who deliberately avoid paying their workers superannuation are breaking the law – and they should be punished to the full extent of the law,” Leigh said.


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