The issues we consider include:
- exercise of the Commissioner’s discretion (before the contribution is made)
- the bring-forward arrangement
- personal injury and structured settlement contributions
- timing of contributions.
If you have already made the contribution to your fund and will likely exceed your contribution cap, you may apply for a determination to disregard or reallocate the contribution.
If you receive a determination from us advising you have excess contributions and believe it is incorrect, You can check information on ATO online services about your:
- concessional contributions cap
- non-concessional contributions cap
- carry-forward concessional contributions cap
- employer contributions
- bring-forward arrangement for non-concessional contributions
- total super balance.
If you are unable to access our ATO online services, you can check with your fund or phone us.
You should also contact your super fund to discuss:
- the contributions that were made
- how a contribution cap was exceeded.
Funds must report contributions based on the facts, including the:
- date contributions were received
- contributor's intention at the time the contribution was made.
Funds can only re-report your contributions if their original report was wrong. They can't re-report contributions simply to help you avoid excess contributions.
If a fund has made a mistake, they're required to correct the record with us.
Occasionally, complicated circumstances may lead the fund to believe it can't correct contributions records. If your super fund tells you they can't correct a mistake in contributions records, you should phone us.
If you've made a personal super contribution and given your fund a notice of intent to claim an income tax deduction for it (and received an acknowledgement), but then fail to claim the correct amount in your tax return, or claim it at the incorrect label, you can request an amendment. We may confirm this information with your fund before amending your income tax assessment.
If you amend your tax return, we use this amended information to recalculate your excess contributions. We may seek further information in some circumstances.
You can object if you think the amount allowed or not allowed was incorrect.
For more information, see Personal super contributions.
We use information provided by your fund and by you (in your tax return) to make assessments and determinations for:
- excess concessional contributions
- excess non-concessional contributions.
If your fund amends your contribution information or you amend your personal super contribution deduction in your tax return, we may amend your assessment or determination.
We may also amend your assessment or determination without a request from you when there is a change in the information we hold about you.
It may take up to 6 weeks for you to receive an amended notice of assessment or determination.
You can object if you think your amended assessment is incorrect.
If you believe your super contributions for a financial year exceeded or will exceed a contributions cap, you can apply to the ATO to make a determination that some or all of your contributions can be disregarded or allocated to another year.
We can only do this if both of the following apply:
- there are special circumstances
- the decision aligns with the object of Division 291 or Division 292 of the Income Tax Assessment Act 1997 (to ensure contributions made to a person's super are made gradually over time).
In making a determination we will also consider:
- whether the contributions would be more appropriately allocated to another financial year
- whether it was reasonably foreseeable you would have excess contributions when a contribution was made
- the extent to which you had control over the contribution being made
- other relevant factors.
Special circumstances are unusual or out of the ordinary factors that lead to an unjust, unreasonable or otherwise inappropriate outcome.
There is no strict formula or checklist to work out what special circumstances are. Each case is considered on its own merits.
Situations not generally considered special circumstances include:
- financial hardship from having to pay extra tax
- thinking the assessment or determination is unfair
- not meaning to exceed a cap
- not knowing about or misunderstanding the law or facts
- receiving incorrect or incomplete professional advice
- making a mistake.
PS LA 2008/1 The Commissioner's discretion to disregard or reallocate concessional and non-concessional contributions for a financial year includes examples to help you understand how we consider whether you have special circumstances. They are a guide only. Each decision depends entirely on your specific circumstances.
Even if we think your circumstances are special, we can only disregard or reallocate excess contributions if it is consistent with the objective of the legislation.
For more detailed information about when a contribution is made see TR 2010/1 Income tax: superannuation contributions.
Superannuation guarantee (SG) amnesty amounts
If the contributions you want disregarded or reallocated are:
- amounts paid to your super fund by us because your employer lodged SGC statements under the SG amnesty – you do not need to apply for a determination, as we will disregard these contributions and tell you when this occurs
- made directly to your super fund by your employer who lodged SGC statements under the SG amnesty – you need to apply for a determination
- amounts paid to your super fund by us because your employer lodged SGC statements but not under the SG amnesty – you need to apply for a determination.
Apply to have contributions disregarded or reallocated
Complete and send us the Application – excess contributions determination (NAT 71333) form.
You should not apply for a determination if you believe we have:
- relied on incorrect information – you should attempt to get the information corrected
- applied the law incorrectly – you should object to the assessment, explaining where you think we applied the law incorrectly.
You don't have to use our application form, but your written application must:
- include all the information we request in our form, including evidence and declaration requirements
- include your signature
- be saved as a PDF if you want to lodge it online.
If it doesn't meet these rules, we can't consider your application.
Send your application via either:
- fax to 1300 669 846
- your tax agent (who can lodge it for you)
Australian Taxation Office
PO Box 3100
PENRITH NSW 2740
If an assessment or determination has:
- not been issued – you can apply at any time after the contributions you are applying to have disregarded or reallocated have been made to your fund
- been issued – you must apply within 60 days of receiving the assessment or determination.
We may accept your application after 60 days if you can explain in the application why you were unable to apply within the required time.
Outcome of application
If your application to disregard or reallocate your contributions is successful, we will:
- write to you to let you know our decision
- amend your assessment or determination (if required).
Your super fund will not need to re-report your contributions if we decide to disregard or reallocate an amount.
Our decision won't alter your eligibility for a government co-contribution or to claim a deduction for personal super contributions.
Any amount disregarded or reallocated is only for the purposes of excess contributions.
If your application is not successful, we will write to you to let you know our decision. If you disagree with our reasoning you can object to our decision.
Please note we can only disregard or reallocate a contribution for excess contribution purposes, not for any other reason.
If you receive an assessment or determination from us, and you think we applied the law incorrectly, you should object to the assessment or determination by completing the relevant form:
Even if you object, you must still pay the liability. If your objection is allowed, it will be refunded to you or offset against any tax or other Australian Government debts you owe.
You can also object to a decision not to disregard or reallocate a contribution.