Rogers and Commissioner of Taxation (Taxation)

This matter concerned an appeal by Dr Rogers against a decision of the Commissioner of Taxation imposing tax for excess superannuation contributions for the 2018 income year, pursuant to Division 293 of the *Income Tax Assessment Act 1997* (Cth). The central dispute revolved around whether Dr Rogers was exempt from this tax by operation of Subdivision 293-E of the Act, specifically by virtue of being a constitutional state higher level office holder.

The court was required to determine whether Dr Rogers, as a Senior Crown Prosecutor, qualified as a "state higher level office holder" for the purposes of the exemption under Subdivision 293-E. This involved an examination of the nature of her appointment, her remuneration, and her pension arrangements in comparison to those of judicial officers and other senior state officials.

The court reasoned that while the dismissal provisions for a Senior Crown Prosecutor might not always involve parliamentary approval, and remuneration might not be directly set by an independent tribunal, other factors indicated her status as a higher level office holder. Crucially, Dr Rogers's remuneration was fixed at 99% of the Chief Crown Prosecutor's remuneration, who in turn received the same as a County Court judge. Furthermore, her pension entitlements were formally linked to those of a County Court judge. The court considered these arrangements, particularly the pension linkage, as reinforcing the independence of the office, similar to judicial officers. The court concluded that the imposition of superannuation contributions tax on a Senior Crown Prosecutor could impact the State's ability to determine the terms and conditions of engagement for such office holders, which is essential to the State's function.

The objection decision was set aside, and the court substituted its own decision, finding that Dr Rogers was a state higher level office holder and therefore entitled to the benefit of the exception in Division 293-E of the *Income Tax Assessment Act 1997*.