INCOME TAX ASSESSMENT ACT 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-30 - SUPERANNUATION  

Division 292 - Excess non-concessional contributions  

Subdivision 292-C - Excess non-concessional contributions tax  

Operative provisions

SECTION 292-102   Downsizer contributions  

Criteria for a downsizer contribution

292-102(1)  
A contribution is covered under this section if:


(a) the contribution is made to a *complying superannuation plan in respect of you when you are aged 65 years or over; and


(b) the contribution is an amount equal to all or part of the *capital proceeds received from the *disposal of an *ownership interest (the old interest ) in a *dwelling; and


(c) you or your *spouse held the old interest just before the disposal; and


(d) any *capital gain or *capital loss from the disposal of the old interest:


(i) for the case where you held it just before the disposal - is wholly or partially disregarded under Subdivision 118-B (or would have been if you had *acquired it on or after 20 September 1985); or

(ii) otherwise - would have been wholly or partially disregarded under Subdivision 118-B had you held the old interest for a period before the disposal; and


(e) the condition in subsection (2) is met for the disposal; and


(f) the dwelling is located in *Australia, and is not a caravan, houseboat or other mobile home; and


(g) the contribution is made within 90 days, or such longer period as the Commissioner allows, after the time the change of ownership occurs as a result of the disposal; and


(h) you choose, in accordance with subsection (8), to apply this section to the contribution; and


(i) there is not already a contribution covered under this section, and made to a complying superannuation plan in respect of you, from an earlier choice you made in relation to the disposal of:


(i) another ownership interest in the dwelling that was not a related spousal interest to the old interest; or

(ii) an ownership interest in another dwelling.
Note 1:

Subparagraph (i)(i) does not prevent another contribution, made for you from the capital proceeds from the disposal of the same interest, from also being a contribution covered under this section.

Note 2:

That subparagraph also does not prevent another contribution, made for you from the capital proceeds from the disposal of a related spousal interest, from being a contribution covered under this section.

10-year ownership condition

292-102(2)  
The condition in this subsection is met for the *disposal of the old interest if either or both of the following paragraphs applies:


(a) at all times during the 10 years ending just before the disposal:


(i) the old interest was held by you, your *spouse or your former spouse; or

(ii) an *ownership interest in the land on which the *dwelling is situated was held by you, your spouse or your former spouse;


(b) if subsection 118-147(1) :


(i) applies because the old interest was a substitute property interest (within the meaning of that subsection) for an old dwelling referred to in paragraph 118-147(1)(a) ; or

(ii) would have applied as described in subparagraph (i) if paragraph 118-147(1)(a) were modified to refer to a dwelling (the old dwelling ) that was your main residence;
you, your spouse or your former spouse *acquired an ownership interest in that old dwelling at least 10 years before the disposal.
Note:

Section 118-147 deals with a dwelling replacing an earlier dwelling that was compulsorily acquired or destroyed etc.

Cap on the amount of a downsizer contribution

292-102(3)  
Despite subsection (1), the contribution is covered under this section only to the extent that it does not exceed the lesser of:


(a) $300,000, less any other contribution that is already covered under this section and made to a *complying superannuation plan in respect of you; and


(b) the sum of the *capital proceeds from the disposals of:


(i) the old interest; and

(ii) any *related spousal interest to the old interest;
less the sum of all other contributions that are already covered under this section and made to complying superannuation plans in respect of you or your *spouse. Meaning of related spousal interest

292-102(4)  
A related spousal interest , to an *ownership interest in a *dwelling, is another ownership interest in the dwelling if:


(a) both ownership interests are *disposed of under the same contract; and


(b) just before the disposal, you *held one of the ownership interests and your *spouse held the other. When interest held by trustee of deceased estate

292-102(5)  
For the purposes of determining whether an individual held an interest at a particular time, if the interest was held at the particular time by the trustee of the deceased estate of an individual who was your *spouse when the individual died, the interest is taken to be held at the particular time by that individual. Review of the period for making the contribution

292-102(6)  
If:


(a) you requested the Commissioner to allow a longer period under paragraph (1)(g); and


(b) you are dissatisfied with:


(i) a decision under that paragraph allowing a longer period; or

(ii) a decision the Commissioner makes not to allow a longer period;

you may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953 .

292-102(7)  
To avoid doubt:


(a) subject to subsection 14ZVC(3) of the Taxation Administration Act 1953 , you may also object, on the ground that you are dissatisfied with such a decision, relating to all or part of your contributions for a *financial year:


(i) under section 175A of the Income Tax Assessment Act 1936 against an assessment made in relation to you for the corresponding income year; or

(ii) under section 97-35 in Schedule 1 to the Taxation Administration Act 1953 against an *excess non-concessional contributions determination made in relation to you for the financial year; and


(b) for the purposes of paragraph (e) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 , the making of a decision under paragraph (1)(g) of this section is a decision forming part of the process of making an assessment of tax, and making a calculation of charge, under this Act. Requirements for choices

292-102(8)  
To make a choice for the purposes of paragraph (1)(h), you must:


(a) make the choice in the *approved form; and


(b) give it to the *superannuation provider in relation to the *complying superannuation plan at or before the time when the contribution is made. Commissioner to notify providers if contributions are not downsizer contributions

292-102(9)  
The Commissioner must, in writing, notify a *superannuation provider that all, or a specified part, of a contribution is not covered under this section if:


(a) the Commissioner is aware that a choice referred to in subsection (8) has been given to the superannuation provider for the contribution; and


(b) the Commissioner is satisfied that the contribution, or that part of the contribution, (as applicable) is not covered under this section.

The Commissioner may give a copy of the notification to *APRA.


View surrounding sectionsView surrounding sectionsBack to top


This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.