Illawarra Turf Club Ltd and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal considered the appeal of the Illawarra Turf Club Ltd (ITC) against a superannuation guarantee charge (SGC) assessment issued by the Commissioner of Taxation. The dispute concerned whether jockeys engaged by the ITC were deemed employees for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA), thereby making the ITC liable for the SGC. The Tribunal was required to determine if the jockeys fell within the extended definitions of "employee" under section 12(3) or section 12(8) of the SGAA, or if the ITC could establish that it was not the employer responsible for paying the jockeys' riding fees.

The Tribunal's reasoning focused on the purpose of the SGAA, which is to ensure a minimum level of superannuation for Australian workers by imposing a charge on employers. The core of the determination rested on whether the ITC had discharged its onus of proof to demonstrate it was not liable to pay the jockeys. Drawing on the principles established in *Scone Race Club Limited v Commissioner of Taxation*, the Tribunal noted that the ITC, like the taxpayer in *Scone Race Club*, had failed to adduce direct evidence regarding who was liable to pay the riding fees. Despite submissions that riding fees were recorded as an expense in the ITC's accounts, the Tribunal found this insufficient without corroborating evidence, particularly given the policy of "returns to owners" which aimed to reduce costs for owners by having clubs assume the liability for riding fees.

The Tribunal applied the legal principles concerning the determination of employer-employee relationships, referencing cases such as *Simmons v Heath Laundry Co* and *Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd*. These cases highlight the importance of the degree of control exercised, the nature of the task, and the freedom of action afforded to the individual. However, the Tribunal found itself deprived of the detailed information necessary to definitively assess the nature of the relationship, such as specific contractual terms or evidence from trainers and jockeys. Consequently, the Tribunal concluded that the ITC had not sufficiently discharged its onus of proof.