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  • If the information used for excess contributions is wrong

    The following advice will guide you if you think the information used for excess contributions is wrong.

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    Correcting fund reporting mistakes

    If you receive a determination from us advising you have excess contributions and believe it is incorrect, you should check the information.

    You can use ATO online services to view information, about your:

    • concessional contributions cap
    • carry-forward concessional contributions
    • employer contributions
    • bring-forward arrangement for non-concessional contributions
    • total super balance.

    At this stage, information about non-concessional contributions, other than the bring-forward arrangement, is not available in ATO online services.

    If you are unable to access our ATO online services, or you want to check your non-concessional contributions information, you can 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 there has been a mistake, the fund is 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.

    See also:

    Example: Correcting fund reporting mistakes

    Michael is nearing retirement age and for the last few years made regular personal contributions to the fund Perfect Super to increase his super balance.

    Michael was not aware that Perfect Super staff made errors processing his contributions. They reported these contributions as employer contributions rather than personal contributions.

    This caused Michael to go over his concessional contributions cap, and we included the excess in Michael's assessable income.

    Michael checked his records and contacted Perfect Super to ask for the error to be corrected.

    Perfect Super accepted an error was made and they had an obligation to correct their records.

    Perfect Super then reported the corrected details to us within 28 days of becoming aware of the error.

    End of example

    Disagreeing with income tax assessment information

    Personal contributions allowed as a deduction in your tax return are used to calculate your concessional and non-concessional contributions and in turn, any excess contributions.

    If you want to claim a tax deduction for your personal super contributions, you must meet certain requirements including:

    • completing a notice of intent to claim deduction in the approved form
    • giving it to your super fund by the required date.

    The amount you are allowed as a personal super contribution deduction in your tax return is counted towards your concessional (before-tax) contributions.

    The amount you are not allowed as a personal super contribution deduction is counted towards your non-concessional (after-tax) contributions cap.

    If you do not claim the correct amount in your tax return, or do not claim it at the correct label, you can request an amendment. We may confirm this information with your fund before amending your income tax assessment.

    You can object if you think the amount allowed or not allowed was incorrect.

    If you amend your tax return, we use this amended information to recalculate your excess contributions. We may seek further information in some circumstances.

    Next step:

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    If the information used in your ECT or ENCC tax assessment or determination changes

    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
    • excess contributions tax (ECT) (2012–13 and earlier years).

    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.

    Request to disregard or reallocate your contributions

    If you believe your super contributions for a financial year exceeded or will exceed a contributions cap you can apply to the Commissioner to consider making a determination that some or all of your contributions can be disregarded or allocated to another year.

    We can only disregard or allocate your contributions to another year if both 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.

    The object of the law is to ensure contributions made to a person's super have been made gradually over time. This is achieved by:

    • introducing caps on the amount of concessionally taxed contributions that can be made on your behalf each year
    • imposing a tax or charge on contributions in excess of your caps. Individuals who make contributions on or after 1 July 2021 that exceed their concessional contributions cap, will no longer be liable to pay the excess concessional contributions charge.

    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
    • whether there are other relevant factors.

    Our decision must consider all your relevant circumstances that could have influenced the planning or making of contributions.

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    Special circumstances

    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 includes examples that are designed 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 relevant legislation.

    See also:

    • PS LA 2008/1 The Commissioner's discretion to disregard or reallocate concessional and non-concessional contributions for a financial year – For a more detailed explanation about what we consider when you make an application.
    • TR 2010/1 Income tax: superannuation contributions – For more detailed information about when a contribution is made.

    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 lodge an application. We will make a determination to disregard the contributions made under the amnesty and tell you when this occurs.
    • amounts paid to your super fund by us because your employer lodging SGC statements but not under the SG amnesty – you need to lodge an application
    • made directly to your super fund by your employer who lodged SGC statements under the SG amnesty – you need to lodge an application.

    See also:

    Applying to have contributions disregarded or reallocated

    Complete and send us the Application – excess contributions determination (NAT 71333) form.

    You should not apply for the Commissioner's discretion 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.

    If you are applying, you don't have to use our form. However, 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 or via email.

    If it is does not met these rules, we will not be able to consider your application.

    After completing your application, either:

    • fax it to 1300 669 846
    • lodge through Online services for business or Online Services for agents (your agent can lodge this for you)
    • email it to SuperAdvice@ato.gov.au. Be aware that email is not a secure environment and the privacy of personal information sent by this unencrypted channel cannot be guaranteed.
    • mail it to us at

      Australian Taxation Office
      PO Box 3100
      PENRITH  NSW  2740
    Time limits

    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.

    Objecting

    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.

    See also:

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      Last modified: 30 Sep 2021QC 19749