Employment termination payments

Payments made as a consequence of the termination of employment which are ETPs are taxed according to the nature of the payments.

Specific kinds of employment termination payment get special treatment, depending on when and how they are paid, and specifically what for:

  • Tax On Redundancy Payments (including early retirement schemes)
    Within limitations genuine loss-of-job payments may be tax free or concessionally taxed up to the ETP Concessional Cap.
  • Invalidity Payments
    When an employee retires because of invalidity, that part of the Employment Termination Payment (ETP) which relates to the period until normal retirement date, is the tax free invalidity component.
  • Death Benefit Employment Termination Payments
    The taxable component of a death benefit ETP paid to a dependent is tax free up to the concessional ETP cap.
  • Long Service Leave Payments
    Leave is specifically excluded from the concessional ETP rules however if paid in a lump sum, there may be opportunities to influence the tax outcome.
  • Annual Leave
    Leave is excluded by definition as an Employment Termination Payment, but concessional tax treatment may apply in some limited circumstances.
  • Transitional Termination Payments
    Transitional termination payments were those made between 1 July 2007 and 30 June 2012 which could be rolled over into a super fund or used to buy an annuity.

The ETP payg withholding rates

The PAYG tax withholding on termination payments are set out in Schedule 11 Tax Table for employment termination payments (includes ETP and Whole of Income caps example calculations).

Schedule 11 ‘Table A’ Withholding (payg) rates on ETPs

Life benefit ETP taxable component due to early retirement scheme, genuine redundancy, invalidity, compensation for personal injury, unfair dismissal, harassment or discrimination.
Age at year endComponentWithholding RateApplicable Cap
Under preservation ageUp to the cap32%ETP cap
Preservation age or overUp to the cap17%ETP cap
All agesAbove the cap47%ETP cap
Life benefit ETP taxable component which is a ‘golden handshake’, non-genuine redundancy payment, severance pay, a gratuity, in lieu of notice, for unused sick leave or for unused rostered days off.
Under preservation ageUp to the cap32%The lower of ETP cap and whole of income Cap
Preservation age or overUp to the cap17%
All agesAbove the cap47%
Death benefit ETP taxable component paid to non-dependants
All agesUp to the cap32%ETP cap
Above the cap47%
Death benefit ETP taxable component paid to dependants
All agesUp to the capnilETP cap
Above the cap47%
Death benefit ETP paid to a trustee of a deceased estatenil
  • An ETP may comprise of a tax-free component and a taxable component. These withholding rates only apply to the taxable components.
  • the rates above include medicare levy (2%). Foreign residents taxed in Australia can exclude the levy.
  • the rates above assume a valid TFN is provided (effective for 12 months); otherwise withholding rate is 47% (residents) or 45% (non-residents)
  • ETP amounts taxed in another country under a tax treaty do not require withholding

For source data and further info see Schedule 11

‘Excluded’ ETP amounts under the indexed concessional cap

Employment termination payments are concessionally taxed when the amounts are below the concessional caps. In calculating whether a cap has been breached, all of the payments in respect of a particular termination are counted (i.e. regardless of which year received).

The Indexed Cap is higher than the whole of income cap which has a non-indexed value of $180,000. To be measured against the Indexed Cap the ETP amount must be an ‘Excluded ETP’. Non-excluded ETP payments are measured against the non-indexed $180,000 cap.

A ‘excluded ETP’ is

  • Genuine redundancy and early retirement scheme payments (the excess over the tax-free amounts)
  • Invalidity payments  (the excess over the tax-free amounts)
  • Compensation received due to a genuine employment-related dispute relating to personal injury, unfair dismissal, harassment, discrimination, or any other matter prescribed by the regulations (s 82-10(6)).

Tax rates on taxable ETP payments

Amounts over the cap are taxed at the highest marginal tax rate plus medicare. For amounts up to the cap the tax is limited to 30% plus medicare for employees below preservation age, or 15% for those at or above preservation age at 30 June. The maximum tax rate is applied by way of compensating tax offset.

Death benefit amounts under the cap paid to a dependent are tax free;  For death benefit amounts under the cap paid to a non-dependent the tax is limited to 30% plus Medicare.

ETP Indexed Concessional Caps
2019-20$210,000
2018-19$205,000
2017-18$200,000
2016-17$195,000
2015-16$195,000
2014-15$185,000
2013-14$180,000
2012-13$175,000
2011-12$165,000
2010-11$160,000

 

The “Whole of Income Cap” $180,000 non-indexed

From 1 July 2012 the ETP tax offset is limited, based on income

The cap on taxation of ETPs is achieved by crediting an offset amount (rebate) calculated in your tax assessment to ensure that the specified maximum tax rate is preserved.

From 1 July 2012, the ETP offset is limited so that only that part of an affected ETP (such as a golden handshake) that is under $180,000 will receive the ETP tax offset. (The $180,000 threshold is not indexed).

The ETP tax offset ensures that the tax on ETPs up to the ETP cap is limited to

  • 15% for those at or over preservation age, and
  • 30% for those under preservation age

See further: Working out the whole-of-income cap amount

What Is An ETP?

A lump sum payment made in consequence of a person’s termination of employment (including the death of that person) is referred to an Employment Termination Payment (ETP).

(Under rules which applied up to 30 June 2007, these payments were known as “Eligible Termination Payments”.)

What is included as an ETP

The definition of ETP includes amounts paid in lieu of notice or rostered days off, golden handshakes, invalidity payments (not personal injury) and certain death benefits payments.

An ETP also includes redundancy and early retirement scheme payments in excess of the tax-free components.

ETP 12  month rule

Generally to qualify as an ETP requires payment within 12 months, except for

  • genuine redundancy or early retirement scheme payments,
  • payments resulting from prior legal or insolvency processes
  • or (upon request) if the Tax Office determines it is reasonable. (F2018L00431)

If a payment falls outside the 12 month requirements, tax at normal rates applies to the payments.

What is excluded as an ETP

There are certain kinds of payment which are excluded from being an ETP by definition. The following are generally not ETPs:

  • superannuation and pension payments
  • unused annual or long service leave
  • the tax free part of genuine redundancy or early retirement scheme payments
  • foreign termination payments
  • CGT retirement exemption amounts
  • certain other capital payments including loans, dividends, personal injury and restraint of trade payments and assessable employee share scheme amounts (Sec 82-135 ITAA 1997)

These exclusions are essentially payments which are caught or dealt with under other areas of the tax law.

Special Rules to 30 June 2012: Transitional Termination Payments (“TTPs”) 

Applicable until 30 June 2012, certain termination payments made between 1 July 2007 and 30 June 2012 were able to be rolled over into a super fund or used to buy an annuity.

 For further information see:

ASIC Information on employee entitlements, what to do if there is a dispute

 

Phoenix Hotline to protect Australian workers and small businesses

The Phoenix Hotline is intended to make it easier to report suspected phoenix behaviour directly to the Australian Taxation Office and enable timely action to be taken against companies and their directors, to protect employee entitlements like wages and superannuation, and taxes owed.

Employees, creditors, competing businesses and the general public can confidentially provide information or report their concerns about possible phoenix behaviour by calling the Phoenix Hotline on 1800 807 875 or online at the ATO website.

Disclosures fall within available privacy and whistleblower protections.

See media release

 

This page was last modified 2019-07-02