S&H Investments Pty Ltd and Commissioner of Taxation

S&H Investments Pty Ltd (the Applicant) sought review of a decision by the Deputy Commissioner of Taxation disallowing its objection against Superannuation Guarantee Charge (SGC) assessments for the quarters ending 30 June 2015 to 30 September 2018. The SGC assessments were issued on the basis that a worker, referred to as TW, was an employee of the Applicant under the extended definition in section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA), and that the Applicant had failed to make the requisite superannuation contributions. The Applicant contended that TW was an independent contractor, not an employee, and that a contractual arrangement existed where TW was paid a higher hourly rate to cover her own superannuation, invoicing the Applicant with an Australian Business Number (ABN).

The Tribunal was required to determine whether TW was an employee of the Applicant within the extended definition provided by section 12(3) of the SGAA during the relevant quarters. The Applicant bore the burden of proving that the SGC assessments were excessive or incorrect, which meant demonstrating that TW was not an employee under the extended definition.

The Tribunal considered the extended definition of "employee" under section 12(3) of the SGAA, which deems a person to be an employee if they work under a contract wholly or principally for the labour of the person. The Applicant argued that TW was paid a higher rate to account for her superannuation and that she provided invoices with an ABN, suggesting an independent contractor relationship. However, the Tribunal's reasoning, as indicated by the catchwords, concluded that the extended definition of "employee" was satisfied. This implies that the Tribunal found that TW's work was performed under a contract that was wholly or principally for her labour, notwithstanding the contractual terms or invoicing practices relied upon by the Applicant. The Applicant failed to discharge its onus of proving that the assessments were incorrect.