CHAPTER 3
-
SPECIALIST LIABILITY RULES
PART 3-30
-
SUPERANNUATION
History
Part 3-30 inserted by
No 9 of 2007
, s 3 and Sch 1 item 1, applicable to the 2007-2008 income year and later years.
Division 290
-
Contributions to superannuation funds
History
Div 290 inserted by
No 9 of 2007
, s 3 and Sch 1 item 1, applicable to the 2007-2008 income year and later years.
Subdivision 290-C
-
Deducting personal contributions
History
Subdiv 290-C inserted by
No 9 of 2007
, s 3 and Sch 1 item 1, applicable to the 2007-2008 income year and later years.
Commissioner
'
s Remedial Power
Note:
A Commissioner
'
s Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power
-
Work Test for Personal Superannuation Contributions) Determination 2023 (F2023L00564) modifies the operation of s
290-165(1A)
of the
Income Tax Assessment Act 1997
and any other provisions of a taxation law whose operation is affected by the modified operation of s
290-165(1A)
.
The operation of the relevant provision is modified as follows:
For the purposes of s 370-5 in Sch 1 to the
Taxation Administration Act 1953
, s
290-165(1A)
of the
Income Tax Assessment Act 1997
is modified to operate as if:
(a) you also meet the requirement in paragraph
290-165(1A)(a)
if you worked for gain or reward as a covered person for at least 40 hours in any period of 30 consecutive days during the income year in which the contribution was made; and
(b) you also meet the requirement in subparagraph
290-165(1A)(b)(i)
if you worked for gain or reward as a covered person for at least 40 hours in any period of 30 consecutive days during the income year ending before the income year in which the contribution was made.
The modification applies in relation to contributions made on or after 1 July 2022.
An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s
370-5
of Sch
1
to the
Taxation Administration Act 1953
to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.
Conditions for deducting a personal contribution
SECTION 290-170
Notice of intent to deduct conditions
Deductibility of contributions
290-170(1)
To deduct the contribution, or a part of the contribution:
(a)
you must give to the trustee of the fund or the *RSA provider a valid notice, in the *approved form, of your intention to claim the deduction; and
(b)
the notice must be given before:
(i)
if you have lodged your *income tax return for the income year in which the contribution was made on a day before the end of the next income year
-
the end of that day; or
(ii)
otherwise
-
the end of the next income year; and
(c)
the trustee or provider must have given you an acknowledgment of receipt of the notice.
Validity of notices
290-170(2)
The notice is not valid if at least one of these conditions is satisfied:
(a)
the notice is not in respect of the contribution;
(b)
the notice includes all or a part of an amount covered by a previous notice;
(c)
when you gave the notice:
(i)
you were not a member of the fund or the holder of the *RSA; or
(ii)
the trustee or *RSA provider no longer holds the contribution; or
(iii)
the trustee or RSA provider has begun to pay a *superannuation income stream based in whole or part on the contribution;
(d)
before you gave the notice:
(i)
you had made a contributions-splitting application (within the meaning given by the regulations) in relation to the contribution; and
(ii)
the trustee or RSA provider to which you made the application had not rejected the application;
(e)
if the contribution is made to a *superannuation fund
-
the condition in section
290-155
is not satisfied in relation to the fund and the contribution.
History
S 290-170(2) amended by No 81 of 2016, s 3 and Sch 5 item 6, by inserting para (e), effective 1 January 2017 and applicable in relation to contributions made in the 2017-18 income year and later income years.
S 290-170(2) amended by No 117 of 2010, s 3 and Sch 4 item 1, by inserting
"
to which you made the application
"
in para (d)(ii), applicable in relation to:
(a) notices given under section
290-170
of the
Income Tax Assessment Act 1997
on or after 17 November 2010; and
(b) notices of variation given under section
290-180
of that Act on or after 17 November 2010 (whether the notices being varied were given before, on or after 17 November 2010).
S 290-170(2) amended by No 15 of 2007, s 3 and Sch 4 item 3, by substituting
"
contribution
"
for
"
contributions
"
in para (c)(iii), effective 15 March 2007.
Acknowledgment of notice
290-170(3)
The trustee or provider must, without delay, give you an acknowledgment of a valid notice, subject to subsection (4).
290-170(4)
The trustee or provider may refuse to give you an acknowledgment of receipt of a valid notice if the *value of the *superannuation interest to which the notice relates, at the end of the day on which the trustee or *RSA provider received the notice, is less than the tax that would be payable in respect of your contribution (or part of the contribution) if the trustee or provider were to acknowledge receipt of the notice.
History
S 290-170(4) amended by No 117 of 2010, s 3 and Sch 4 item 2, by substituting
"
to which the notice relates
"
for
"
into which the contribution is made
"
, applicable in relation to:
(a) notices given under section
290-170
of the
Income Tax Assessment Act 1997
on or after 17 November 2010; and
(b) notices of variation given under section
290-180
of that Act on or after 17 November 2010 (whether the notices being varied were given before, on or after 17 November 2010).
Application to successor funds
290-170(5)
Subsections (1) to (4) and section
290-180
apply as if:
(a)
references in those provisions to the fund or *RSA were references to a *successor fund; and
(b)
references in those provisions to the trustee or *RSA provider were references to the trustee or RSA provider of the successor fund;
if:
(c)
after making your contribution, all of the *superannuation interest to which the notice relates is transferred to the successor fund; and
(d)
you have not previously given a valid notice under this section to any *superannuation provider in relation to the contribution.
History
S 290-170(5) substituted by No 117 of 2010, s 3 and Sch 4 item 3, applicable in relation to:
(a) notices given under section
290-170
of the
Income Tax Assessment Act 1997
on or after 17 November 2010; and
(b) notices of variation given under section
290-180
of that Act on or after 17 November 2010 (whether the notices being varied were given before, on or after 17 November 2010).
S 290-170(5) formerly read:
Application to merging superannuation funds
290-170(5)
If:
(a)
after making your contribution, a choice is made under Subdivision
310-B
in relation to the *superannuation fund (the
original fund
), another superannuation fund (the
continuing fund
) and an *arrangement; and
(b)
under the arrangement, you became a member (within the meaning of the
Superannuation Industry (Supervision) Act 1993
) of the continuing fund; and
(c)
you did not give a notice under subsection (1) in relation to the contribution while you were a member (within the meaning of the
Superannuation Industry (Supervision) Act 1993
) of the original fund;
then subsections (1) to (4), and section
290-180
, apply as if:
(d)
references in those provisions to the fund were references to the continuing fund; and
(e)
references in those provisions to the trustee were references to the trustee of the continuing fund.
S 290-170(5) inserted by No 19 of 2010, s 3 and Sch 2 item 9, effective 25 March 2010. For application provisions see note under Div
310
heading.
290-170(6)
(Repealed by No 89 of 2013)
History
S 290-170(6) repealed by No 89 of 2013, s 3 and Sch 1 item 17, effective 2 July 2019. S 290-170(6) formerly read:
Amounts transferred to a MySuper product in another complying superannuation fund
290-170(6)
If:
(a)
under an
*
arrangement, the fund (the
original fund
) transfers an
*
accrued default amount of a member (within the meaning of the
Superannuation Industry (Supervision) Act 1993
):
(i)
as a result of an election made under paragraph 29SAA(1)(b) of that Act; or
(ii)
under section 388 of that Act;
to another superannuation fund that is a continuing fund for the purposes of subsection 311-10(3); and
(b)
the arrangement takes effect after the making of your contribution; and
(c)
you are a member (within the meaning of that Act) of the continuing fund immediately after the arrangement takes effect; and
(d)
you did not give a notice under subsection (1) in relation to the contribution while you were a member (within the meaning of that Act) of the original fund;
then subsections (1) to (4) of this section, and section 290-180, apply as if references in those provisions to the original fund (or the trustee of the original fund) were references to the continuing fund (or the trustee of the continuing fund).
S 290-170(6) inserted by No 89 of 2013, s 3 and Sch 1 item 6, applicable to income years that include 1 July 2013, and to later income years.
History
S 290-170 inserted by
No 9 of 2007
, s 3 and Sch 1 item 1, applicable to the 2007-2008 income year and later years.