Court to rule on status of super for consultants

The real estate industry is facing increased employment costs if the Tax Office succeeds in a bid to force agencies to pay superannuation for "consultant" sales staff.

The challenge to the practice of hiring agents as independent contractors threatens to add 9 per cent - the equivalent of thousands of dollars - to the cost of each consultant.

The apparent policy shift has come to light in a lawsuit filed by Kelemen Commercial after two audits by the Australian Taxation Office that produced contradictory results.

The ATO assessments were conducted more than a year apart on the potential super liabilities for two consultants with the same contractual conditions, according to an affidavit filed by director Rudy Kelemen.

"[They] were not considered employees of the company. Each was entitled to commissions based on success fees, less any retainers paid to them by the company," he said.

In April 2012 the Tax Office found Kelemen did not owe any superannuation for the first consultant. But the findings were starkly different for the second consultant by June 2013.

"Notwithstanding the [ATO's] own findings ... the [ATO] determined that the company was liable for the payment of PAYG and superannuation for [the second consultant]," Mr Keleman said.

The ATO issued a statutory demand for the money, which Keleman Commercial is now petitioning the Supreme Court to set aside.

Mr Keleman declined to comment because the matter is now before the court. One of the consultants told BusinessDay he was unaware that the ATO had acted on his behalf.

cvedelago@theage.com.au

Twitter: @chrisvedelago