Income Tax Assessment Act 1997
View history note
Hide history noteNote: 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:
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.
SECTION 290-85 Contributions for former employees etc. 290-85(1)
Section 290-60 applies as modified by this section if a contribution you make in respect of another person: (a) reduces your charge percentage under sections 22 or 23 of the Superannuation Guarantee (Administration) Act 1992 in respect of the other person because of section 15B of that Act; or (b) is a one-off payment in lieu of salary or wages that relate to a period of service during which the other person was your employee;
(c) (Repealed by No 117 of 2010)
[ CCH Note: S 290-85(1) will be amended by No 57 of 2025, s 3 and Sch 1 items 89 and 90, by substituting para (a) and " qualifying earnings (within the meaning of that Act) " for " salary or wages " in para (b), effective 1 July 2026. For application and transitional provisions, see note under s 85-25(4) . Para (a) will read:
]
(a) results in you having a lower * individual final superannuation guarantee shortfall for the other person and one or more * QE days than what you would have otherwise because of section 15B of the Superannuation Guarantee (Administration) Act 1992 ; or
290-85(1AA)
Section 290-60 also applies as modified by this section if: (a) a contribution you make in respect of another person relates to a period of service during which the other person was your employee; and (b) you make the contribution within 4 months after the person stops being your employee; and (c) you would have been entitled to a deduction in relation to the contribution if:
(i) you had made it at a time when the other person was your employee; and
(ii) the law that applied to your entitlement to the deduction at that time had been the same as it was at the time you actually made the contribution.
290-85(1AB)
Section 290-60 also applies as modified by this section if: (a) a contribution you make in respect of another person relates to a period of service during which the other person was your employee; and (b) the contribution relates to a * defined benefit interest of the other person; and (c) you are at * arm ' s length with the other person in relation to the contribution; and (d) you obtain an * actuary ' s certificate that:
(i) complies with the requirements (if any) specified by the regulations for the purposes of this paragraph; and
(e) you would have been entitled to a deduction in relation to the contribution if:
(ii) is to the effect that the contribution does not exceed the amount required by the relevant * superannuation fund to meet the fund ' s liabilities in connection with defined benefit interests; and
(i) you had made it at a time when the other person was your employee; and
(ii) the law that applied to your entitlement to the deduction at that time had been the same as it was at the time you actually made the contribution.
290-85(1A)
Section 290-60 also applies as modified by this section if: (a) you make a contribution in respect of another person at a time; and (b) the other person had been employed by a company or other entity before that time; and (c) section 290-90 would apply in relation to the contribution if the other person were employed by the company or entity at that time; and (d) the contribution:
(i) reduces the company ' s or entity ' s charge percentage under section 22 or 23 of the Superannuation Guarantee (Administration) Act 1992 in respect of the other person because of section 15B of that Act; or
(ii) is a one-off payment in lieu of salary or wages that relate to a period of service during which the other person was the company ' s or entity ' s employee; or
(iii) if subsection (1B) or (1C) applies - relates to a period of service during which the other person was the company ' s or entity ' s employee.
[ CCH Note: S 290-85(1A) will be amended by No 57 of 2025, s 3 and Sch 1 item 91, by substituting para (d)(i), effective 1 July 2026. For application and transitional provisions, see note under s 85-25(4) . Para (d)(i) will read:
]
(i) results in the company or entity having a lower * individual final superannuation guarantee shortfall for the other person and one or more * QE days than what it would have otherwise because of section 15B of the Superannuation Guarantee (Administration) Act 1992 ; or
290-85(1B)
This subsection applies if: (a) you make the contribution within 4 months after the person stops being the company ' s or entity ' s employee; and (b) you would have been entitled to a deduction in relation to the contribution if you had made it while the other person was the company ' s or entity ' s employee.
290-85(1C)
This subsection applies if: (a) the contribution relates to a * defined benefit interest of the other person; and (b) you and the company are at * arm ' s length with the other person in relation to the contribution; and (c) you obtain an * actuary ' s certificate that:
(i) complies with the requirements (if any) specified by the regulations for the purposes of this paragraph; and
(ii) is to the effect that the contribution does not exceed the amount required by the relevant * superannuation fund or * RSA to meet the fund ' s or RSA ' s liabilities in connection with defined benefit interests; and
(d) you would have been entitled to a deduction in respect of the contribution if you had made it while the other person was the company ' s or entity ' s employee.
290-85(2)
Treat the other person as your employee for the purposes of subsection 290-60(1) .
290-85(3)
Despite subsection 290-60(2) : (a) if subsection (1) or (1AA) applies - the condition in section 290-70 must be satisfied at the most recent time when the other person was your employee (apart from subsection (2) of this section); or (b) if subsection (1A) applies:
(i) the condition in section 290-70 need not be satisfied; and
(ii) instead, the condition in subsection 290-90(4) must be satisfied at the most recent time when the other person was the company ' s or entity ' s employee.
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