Australian Turf Club Ltd and Commissioner of Taxation (Taxation)

The Australian Turf Club Ltd (ATC) sought to challenge a superannuation guarantee charge (SGC) assessment imposed by the Commissioner of Taxation. The dispute concerned whether jockeys engaged to ride in races conducted by the ATC were to be deemed "employees" of the ATC for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA), thereby rendering the ATC liable for the SGC. The matter was heard by Senior Member D K Grigg of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the jockeys were employees of the ATC under the ordinary meaning of those terms, or alternatively, whether they fell within the expanded definitions of "employee" provided by sections 12(3) or 12(8) of the SGAA. Specifically, the Tribunal had to determine if the jockeys worked under a contract wholly or principally for their labour, or if they were paid to perform a sporting activity, thereby making them employees of the person liable to make the payment under the Act. The Tribunal also considered the onus of proof on the ATC to demonstrate it was not liable to pay the jockeys.

The Tribunal's reasoning was heavily influenced by the decision in *Scone Race Club Limited v Commissioner of Taxation*, which involved a similar dispute concerning the employment status of jockeys. The Tribunal found that the ATC had failed to discharge its onus of proof. Despite submissions that riding fees were treated as an expense in the ATC's accounts and that a policy known as "returns to owners" aimed to reduce costs for owners, the Tribunal noted a lack of direct evidence. Crucially, there was no evidence from trainers or jockeys, nor were any contracts produced. The Tribunal concluded that while Racing NSW facilitated and administered payments to jockeys, and the ATC assumed a liability to owners not to pass on riding fees, the precise terms of the arrangements between the ATC, trainers, owners, and jockeys remained unknown and insufficiently evidenced to establish that the jockeys were not employees under the SGAA.

The Tribunal found that the ATC had not sufficiently discharged its onus of proving that it was not liable to pay the jockeys. Consequently, the assessment of the superannuation guarantee charge was upheld.