The Australian Taxation Office has published a substantially rewritten version of its guidance page Super for sportspeople, performers, film makers and related activities (QC107606).

It is the most significant update to that guidance since it was first published, and it follows submissions from across the live music sector, including ALMBC’s own submission lodged in July.

There is some clarity for operators and artists, and there are decisions that the ALMBC will keep pushing back on.

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ALMBC Chair, Howard Adams, says, “The ATO has listened on the practical side and that deserves acknowledgement. Separating the performance fee from travel, freight and backline, and confirming that genuine door deals sit outside the super guarantee, will save venues and festivals real money and real hours.

What has not moved is the part that worries us most. A retired musician playing three gigs a year, and a volunteer committee running a community festival, are now firmly inside the same system as a national touring operation. ALMBC will keep pressing Treasury and the Assistant Treasurer for a legislated exemption for genuine hobby engagements and not-for-profit organisers, and for a $5,000 per engagement de minimis. Venues, festivals and agents are already telling us they will stop booking sole traders, and that is the pipeline our whole industry depends on.”

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What has been clarified

Super now applies only to the performance component of a payment.

The ATO has added a new section on calculating the portion of a payment that attracts super. The parts of a payment covering the following are outside the super guarantee:

• rehearsal studio hire
• equipment hire
• freight costs
• travel and accommodation expenses
• engaging the services of other individuals or entities
• the use, or purchase, of intellectual property
• the use of equipment owned by the individual

The ATO’s own example has a filmmaker invoicing $6,950 made up of a $5,000 filming fee, $1,000 equipment hire, $500 in contractor wages and $450 in travel and accommodation. Super is payable on the $5,000 only.

Where there is no invoice, or the invoice is not itemised, the payer works out the super on the reasonable market value of the items and services provided. The ATO also cautions that you would not ordinarily expect the whole of a payment to a performer to be attributable to anything other than their work, so this is a genuine apportionment, not a way to write the obligation down to nothing. Keep the paperwork consistent. The apportionment has to reflect what was actually incurred, so an itemised invoice needs to match what the artist can substantiate.

Revenue share arrangements, Door Deals & Ticket Splits are outside the super guarantee.

The ATO has added a section on performers sharing revenue. Where a venue and an artist are operating a commercial venture together, and the venue collects the ticket income, takes its costs and its percentage, then passes on the artist’s share, the venue is not making a payment for the performance and has no super obligation. The ATO’s example runs through a comedian on exactly that arrangement with a hotel.

This matters enormously at the grassroots end, where door deals and percentage splits are standard. The arrangement has to be a genuine shared venture rather than a fee dressed up as a split, and the artist carries the commercial risk in return, so get the paperwork right.

Revenue share is about the commercial substance of the deal rather than the payment mechanism. Document the split before the show, make sure the artist genuinely shares in the upside and the downside, and check with your ticketing company about what it can support. The ALMBC understands that Oztix has the ability to split ticket income right now. 

Booking agents, promoters and agencies are now dealt with clearly.

The guidance now distinguishes between an intermediary acting as an agent and an intermediary acting in its own right. Band leaders, booking agents, promoters, managers and entertainment agencies are all named.

In everyday language, if the artist does not get paid, who do they chase for the money? That party owes the super. Money moving through somebody else’s bank account does not change who owes it, and neither does whose name appears on the invoice.

What the ATO has now made clear is that an agent acting for a named artist does not carry the super obligation, while an agency that contracts in its own name and then engages the performer separately does. The distinction is about how the booking is written down, rather than the size of the agency or the type of act.

Where the agency sells a named artist and acts on that artist’s behalf, the venue or festival carries the super. Where the agency sells the service in its own name and then engages whoever will do the job, the agency carries it. The same agency can be on either side of the line depending on the booking.

This is clearer than it was, though we expect arguments to continue until it is settled further.

Good For some Band Leaders – but not all and not good for venues and festivals

Significantly, Example 10 has now clearly labelled the Band leader who is merely acting as an agent for their band, as not responsible for the other band members’ super. This is saying that when the act is truly an act, with one of the members having clear approval to act on behalf of all members, the venue or festival has the super obligation.

However, when a sole trader is booked for a gig and then engages session musicians themselves, there are two separate obligations. The venue or festival pays super into the sole trader’s fund on top of the full fee it paid them, and the sole trader pays super into each session musician’s fund on top of what they pay them, out of their own pocket.

This will continue to confuse artists, venues and festivals and maintains the current major impact on venues and festivals as each four-person sole trader based act definitely means four separate super payments for the venue / festival. 

A festival with 70 four-piece acts made up of sole traders is making 280 separate super payments, not 70, with the extra time, administration and accounting fees that takes.

The ALMBC believes the negative impact that we have already seen in the number of venues, festivals and agents indicating they will no longer work with sole traders, will only intensify. This is already having a very damaging impact on the vital sole trader pipeline of developing musicians and workers.

Agent commission is outside the super base.

In the ATO’s example, a festival promoter pays an agent $1,200 for a magician, the agent retains 10 per cent, and the promoter’s super is calculated on the $1,080 that reaches the performer.

Partnerships remain outside the super guarantee, provided it is a genuine general law partnership. Payers can check that an ABN is active through ABN Lookup. Payments to companies and trusts are also outside it, as before.

Hobby Forms

The ATO has expanded its list of things that do not change the obligation. An individual is treated as an employee for super purposes even if they:

• are not a professional
• have an ABN
• issue invoices
• are engaged on a one-off basis
• refer to themselves as an independent contractor
• are a hobbyist
• provide you with a Statement by a supplier form, which some industries refer to as the hobby form
• are retired or are receiving a super pension or annuity while working

The hobbyist and Statement by a supplier entries are new. The ATO has now put in writing that the hobby form does not remove a super obligation.

The guidance has also added that super obligations do not depend on the size or nature of the undertaking, and that fragile operators such as a sole trader playing their first gig engaging session musicians, to small volunteer community organisations hiring performers for a local not-for-profit arts festival has the exact same obligations as a global commercial business. The impact will continue to be felt most at the bottom end of the market..

There is still no threshold and no de minimis of any kind in the guidance.

What has not changed

The underlying law is the same. There is no super obligation on payments to a company, trust or partnership. There is no obligation where the engagement is wholly or principally domestic or private and the individual works less than 30 hours a week, which covers most private functions. There is no obligation for individuals under 18 working less than 30 hours a week. The rate remains 12 per cent, and under payday super the contribution has to be made within seven business days of paying the performer.

What ALMBC will keep fighting for

ALMBC welcomes many of the new clarifications. They are practical, they reduce real costs for venues, promoters and festivals, and they reflect points the sector put to the ATO directly.

However, there are unresolved issues, and the ALMBC will continue to pursue these.

The hobby form point. A great many people who perform occasionally do not regard themselves as running a business (they might be retired, or playing their first gig, etc) and complete a Statement by a Supplier form on that basis. The ATO has now confirmed that form carries no weight for super purposes. ALMBC’s position is that this is the wrong outcome for genuine hobbyists, for community and volunteer-run events, and for not-for-profit organisations, and that it cannot be fixed by guidance alone.

Surely someone who is retired, nominates themselves as a hobbyist and does not have an ABN, should not be considered an employee?

This point will continue to drive bookings away from Sole Traders and will continue to have a negative impact on the entry level and community level music industry. We need a large contingent of sole traders and entry level performers to drive the next generation – the current rules are already seeing venues, agents and festivals reducing their engagement of sole traders.

We will continue to press the Assistant Treasurer and Treasury for a legislated exemption covering genuine hobby engagements and not-for-profit organisers.

A $5,000 de minimis. The ALMBC will continue to ask the government for a $5,000 per engagement de minimis threshold. The administrative cost of processing a super contribution on a $150 support slot is out of all proportion to the benefit, and it is that cost, not the 12 per cent, that is driving operators to cut back live programming. The new guidance confirms the ATO will not create a threshold administratively, which puts the question squarely back with government.

The $5,000 de minimis proposal is designed to protect grassroots musicians by exempting genuine sole-trader performance engagements of $5,000 or less from the section 12(8) superannuation obligation, recognising that a $5,000 fee may represent only $1,250 each for a four-piece band or $625 each for an eight-piece ensemble before expenses. Without a practical carve-out, venues and festivals are likely to decline engaging sole-trader bands altogether because of the payment, superannuation and administration required for multiple individual performers, ultimately reducing grassroots performance opportunities and driving lower-income musicians out of the live music market.

A de minimis would not leave grassroots musicians without super. The tax system already carries mechanisms built for exactly this group. Under the government super co-contribution, a person with total income under $49,293 in 2026-27 who puts $1,000 of their own money into super receives a matching $500 from the government, with the incentive phasing out at $64,293. The Low Income Super Tax Offset separately refunds up to $500 of contributions tax for people with an adjusted taxable income up to $37,000.

Music Australia’s The Bass Line report put the median music artist income at $14,800 in 2023-24, and average annual live performance income at $15,859 in 2024-25. The overwhelming majority of performing musicians therefore sit well inside both thresholds and are already eligible.

ALMBC’s position is that a $5,000 de minimis, paired with a genuine effort to get musicians using the co-contribution and LISTO they are already entitled to, would put more retirement savings in artists’ hands than a compulsory obligation on a $150 support slot than the current situation.

What ALMBC members should do now

• Itemise your invoices. Artists and crew should separate the performance or service fee from travel, accommodation, freight, backline and studio hire, equipment they own, and any people they engage themselves. Venues and promoters should ask for itemised invoices.
• Review your door deals and revenue splits. If you run genuine revenue share arrangements, document them properly. If you have been treating a flat fee as a split, or the other way round, get advice.
• Band leaders, take note. If you book on behalf of the whole band and everyone is party to the deal, the venue pays super for each member. If you take the booking as your own and then engage other players yourself, you carry the super obligation on what you pay them. Get clear which one you are doing before the gig and get it in writing.
• Check who is contracting. If you book through an agency operating in its own right, the agency carries the obligation. If the agency is acting as an agent for the artist, you do. Get it in writing.
• Do not rely on a hobby form. A Statement by a supplier form does not remove your obligation as the payer.
• Check what you are already entitled to. If you earn under $49,293 and can put $1,000 into your own super, the government adds $500. If your adjusted taxable income is under $37,000, the Low Income Super Tax Offset refunds up to $500 of contributions tax automatically. Talk to your accountant about both.

Talk to us at BIGSOUND

The ALMBC is running a free workshop, Superannuation and the Music Industry: What is all the fuss about?, at The Precinct Event Space on Wednesday 2 September at 11.15am, facilitated by ALMBC Chair Howard Adams with Kylie Thompson and Stephen Wade on the panel. We will work through these changes in detail and take questions.

You will also find us at the RG Lounge at the Royal George daily from noon, and at the ALMBC Venues Mixer at Chattahoochee Joes on Thursday 3 September from 2.45pm.