Document ID: chunk:federal_register_of_legislation:F2021L01451:body:0:p4
Version: federal_register_of_legislation:F2021L01451
Segment Type: other
Provision Reference: 
Character Range: 8520–11733

or issued an SGC default assessment to the employer,

       unless there were other mitigating facts and circumstances or exceptional circumstances.

    Circumstances that may decrease the amount of the employer's shortfall

       (16)      Before making a decision on the level of reduction, the Commissioner will have regard to other factors to determine if the level of reduction should be increased to further reduce the amount of the employer's shortfall.

       (17)      These other factors are mitigating facts and circumstances or exceptional circumstances that may have affected an employer's ability to meet the choice of fund rules, or impacted the making of superannuation guarantee contributions. They include but are not limited to:

           (a)          the date of commencement of employment of the employee in comparison to the end of the quarter

           (b)          delays in the notification that the most recently notified stapled fund could not accept the contributions

           (c)           a subsequent notified stapled fund did not accept the contributions from the employer

           (d)          circumstances outside the control of the employer such as:

              (i)             the malfunction or outage of key systems

              (ii)           ill health or affliction of the employer or a key employee of the employer

              (iii)         natural disasters (for example, fires and floods) or other events where the effects are more than the resultant financial hardship or business downturn, or

           (e)          the level of co-operation by the employer with the Commissioner.

    Circumstances where the amount of the employer's shortfall may not be further reduced

       (18)      The Commissioner may determine it is not appropriate to further reduce the amount of the employer's shortfall in circumstances where the employer could have reasonably been expected to have understood and complied with the choice of fund rules and their superannuation guarantee obligations. For example, an employer has been previously subject to choice of fund rules compliance action, received guidance from the Commissioner in administratively binding advice or previous compliance activity, or had repeatedly made contributions to a fund that does not meet the choice of fund rules.

       (19)      It would also not be appropriate for the Commissioner to further reduce the employer's shortfall simply because the amount of the shortfall may be relatively small.

    Circumstances that may increase the amount of the employer's shortfall

       (20)      The Commissioner will have regard to whether there are circumstances which would support an increase in the amount of the employer's shortfall.

       (21)      It may be appropriate for the Commissioner to uplift the amount of the employer's shortfall by up to 20% where:

           (a)          the employer engaged in action to prevent or obstruct the Commissioner from determining the individual superannuation guarantee shortfall and / or the level of reduction, or

           (b)          an employer had a shortfall in the previous quarter because the late superannuation