ATO Interpretative Decision
ATO ID 2001/97
Superannuation
Superannuation: Complying Fund (Refund of Tax Paid)FOI status: may be released
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This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Whether the taxpayer can claim a refund from the ATO for tax paid by a complying superannuation fund on the taxpayer's personal contributions.
Decision
No. The taxpayer cannot claim a refund from the ATO.
Facts
During the income year, the taxpayer makes personal superannuation contributions to a superannuation fund. The taxpayer notifies the trustee of the superannuation fund under subsection 82AAT(1A) (Income Tax Assessment Act 1936 (ITAA 1936)) of the intention to claim an income tax deduction in respect of part of the personal contributions. The amount covered by the notice is a 'taxable contribution' in accordance with section 274 (ITAA 1936). The amount is included in the assessable income of the fund under section 281 of the ITAA 1936 during the same year of income (and is taxed at the rate of 15%).
Prior to the end of the income year, the taxpayer is paid an eligible termination payment and ceases to be a member of the fund. After the end of the income year, the taxpayer realises that the notice to the trustee of the superannuation fund was incorrect, as it overstated the amount the taxpayer intended to claim (and did in fact claim) as a deduction under section 82AAT.
The taxpayer seeks a refund from the ATO of the tax paid by the fund in respect of the overstated contribution.
Reasons For Decision
The taxpayer is unable to claim a refund from the ATO for tax paid by a superannuation fund because the tax is paid by the superannuation fund in respect of the assessable income of the superannuation fund. There is no provision allowing a taxpayer to claim a refund in this situation.
Date of decision: 15 June 1998
Legislative References:
Income Tax Assessment Act 1936
section 82AAT
section 274
section 276
Other References:
Explanatory Memorandum to the Taxation Laws Amendment (Superannuation) Bill 1993
Keywords
Superannuation, retirement and employment termination
Superannuation funds
Superannuation fund income
Superannuation contributions
Employee superannuation contributions
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 15 June 1998 | Original statement |
| 2 July 2010 | Archived |