Document ID: chunk:federal_register_of_legislation:F2021L01451:body:0:p3
Version: federal_register_of_legislation:F2021L01451
Segment Type: other
Provision Reference: 
Character Range: 5742–8817

of the circumstances set out in section 4(3)(a) to (e) of this instrument have been met unless the employer has a superannuation guarantee charge (SGC) assessment for the quarter and has chosen to offset the late contributions against the SGC or chosen to carry forward the late contribution and apply it as a pre-payment of a future contribution for the same employee.

       (11)      In determining the level of reduction to the amount of the employer's shortfall, the Commissioner will have regard to:

           (a)          whether the employer made the late superannuation guarantee contributions to a fund that complied with the choice of fund rules when the most recently notified stapled fund did not accept the contributions, and

           (b)          other mitigating factors or exceptional circumstances that affected the employer in making the superannuation guarantee contributions or their compliance with the choice of fund rules.

       (12)      The Commissioner will also have regard to whether there are circumstances to support an increase to the employer's shortfall.

    Late superannuation guarantee contributions to a fund that complies with the choice of fund rules

       (13)      It would be appropriate for the Commissioner to apply a greater level of reduction (including to nil) where an employer has made the late superannuation guarantee contributions to a fund that meets the choice of fund rules within a reasonable time following the most recently notified stapled fund not accepting the contributions. For example, contributions made to a fund the employee has subsequently chosen, a successor fund of the most recently notified stapled fund, another stapled fund notified by the Commissioner, and if notified that the employee did not have another stapled fund, the employer's default fund or a fund specified under a workplace determination or enterprise agreement made before 1 January 2021.

       (14)      The Commissioner may apply a lesser level of reduction where an employer did not make the late superannuation guarantee contributions within a reasonable time of the non-acceptance by the most recent notified stapled fund or made the contributions to another fund that met the choice of fund rules without making a further request for a stapled fund.

       (15)      The Commissioner may not apply a reduction to the employer's shortfall where before the employer made the late superannuation guarantee contributions to another fund:

           (a)          the employee had provided the employer details of their chosen fund

           (b)          the Commissioner had notified the employer of another stapled fund, or

           (c)           the Commissioner had notified the employer of an estimate of SGC 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,