Application for discretion
An application for discretion must include the special circumstances that caused the contributions cap to be exceeded and, if possible, evidence of the claims. An application might include claims such as:
- the person could not have reasonably known the contribution would exceed the cap
- the person had no control over the amount of the contribution and when it was made
- it is more appropriate to allocate the contribution to another year (for example, there was a requirement for it to be made in the prior income year)
- the contribution was made to accumulate super gradually over time rather than to avoid paying tax.
An application must be made in the approved form. The ATO form is not required to be used, however the application must include all information requested in the form.
Before 17 November 2010
Before 17 November 2010, in accordance with subsection 292-465(2)External Link, an application for discretion could only be made within 60 days of the ECT notice of assessment being received, or a longer period allowed by the Commissioner.
On or after 17 November 2010
Subsection 292-465(2)External Link was amended with effect from 17 November 2010 and, in accordance with that amendment, an application for discretion can be made:
- after all contributions sought to be disregarded or reallocated have been made
- within 60 days of the ECT notice of assessment being received, or a longer period allowed by the Commissioner.
An application may be accepted if it is made after 60 days, if the person can show they were unable to make the application within the required time.
If a person believes there are special circumstances that caused them to exceed the concessional or non-concessional contributions caps, they must demonstrate why they believe their circumstances are special.