ATO Interpretative Decision

ATO ID 2012/16 (Withdrawn)

Superannuation

Superannuation Excess Contributions Tax: concessional contributions - allocation of contributions
FOI status: may be released
  • This ATO ID is withdrawn because it contains a view in respect of a provision of the Income Tax Assessment Act 1997 that does not apply after the 2012-13 income year. Despite its withdrawal, this ATO ID continues to be a precedential ATO view in respect of decisions for income years up to, and including, the 2012-13 income year.

    See Tax Determination TD 2013/22, which reflects the same view in respect of the replacement or rewritten provision, for decisions for income years after the 2012-13 income year.

    This document has changed over time. View its history.

Status of this decision: Decision Withdrawn 6 August 2015.
CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

When calculating a person's concessional contributions under section 292-25 of the Income Tax Assessment Act 1997 (ITAA 1997) is a concessional contribution made to a superannuation fund in one financial year but allocated to the member under the Superannuation Industry (Supervision) Regulations 1994 (SISR) with effect in the subsequent financial year counted as a concessional contribution in the latter year?

Decision

Yes. When a contribution has been received in one financial year and allocated in accordance with SISR to the member with effect in a subsequent financial year it is counted as a concessional contribution in the latter year.

Facts

A member of a self-managed superannuation fund made a personal contribution of $25,000 to their fund on 4 April 2011. The trustees of the fund immediately allocated this contribution to the member in accordance with subregulation 7.08(2) of the SISR.

The member made a further personal contribution of $25,000 on 28 June 2011. The trustees applied this amount to an unallocated contributions account that had been established in accordance with the governing rules of the fund. On 4 July 2011, the trustees allocated the amount credited to the unallocated contributions account (that is, the amount of the 28 June contribution) to the member as a contribution for the member with effect from that date (and not from 28 June 2011 when the contribution was received).

The member satisfied all the conditions necessary to deduct both personal contributions made in 2010-11 income year and was allowed a deduction of $50,000 in his income tax assessment for that year.

The member's concessional contributions cap for the 2010-11 financial year was $25,000.

Reasons for Decision

Subsection 292-25(2) of the ITAA 1997 provides that a contribution is a concessional contribution if it is made in the financial year to a complying superannuation plan 'in respect of you' and it is included in the assessable income of the superannuation provider. A contribution is made 'in respect of you' when it is made for the purpose of providing superannuation benefits for you. As indicated in paragraph 7 of Taxation Ruling TR 2010/1 Income tax: superannuation contributions this requires an objective determination of the contributor's purpose. Therefore, a contribution does not cease to be made to provide superannuation benefits for a particular person merely because the trustee does not immediately allocate it to the member.

Subsection 292-25(3) of the ITAA 1997 also includes in concessional contributions an amount allocated in accordance with the conditions specified in the regulations.

Subregulation 292-25.01(2) of the Income Tax Assessment Regulations 1997 (ITAR) provides that an amount is allocated in a way covered by subsection 292-25(3) of the ITAA 1997 if the amount has been allocated under Division 7.2 of the SISR and is an assessable contribution.

Division 7.2 of the SISR provides rules for the allocation of contributions to members. Subregulation 7.08(2) of the SISR requires a trustee who receives a contribution in a month in relation to an accumulation interest to allocate the contribution to a member of the fund:

(a)
within 28 days after the end of the month; or
(b)
if it is not reasonably practicable to allocate the contribution to the member of the fund within 28 days after the end of the month - within such longer period as is reasonable in the circumstances.

Subregulation 292-25.01(4) of the ITAR 1997 provides that amounts allocated from reserves are also treated as being allocated in a way covered by subsection 292-25(3) of the ITAA 1997 unless an exclusion in subregulation 292-25.01(4) of the ITAR 1997 applies. However, subregulation 292-25.01(4) of the ITAR 1997 does not apply to an amount that is covered by subregulation 292-25.01(2) of the ITAR 1997.

As the unallocated contributions account maintained by the fund consists only of contributions that were made for a particular member and the amount allocated to the member's account was from contributions made in respect of that member subregulation 292-25.01(2) of the ITAR 1997 is the more specific regulation.

Where a contribution is made to a fund in respect of a particular member and is subsequently allocated to the member under Division 7.2 of the SISR the application of the above provisions appears to result in the contribution being counted as a concessional contribution twice:

·
once under subsection 292-25(2) of the ITAA 1997 because a contribution has been made to the fund in respect of the member; and
·
a second time under subsection 292-25(3) of the ITAA 1997 because it is an amount allocated to the member covered by subregulation 292-25.01(2) of the ITAR 1997.

The times at which the contribution is counted for the purposes of those subsections could be different (including in different financial years) where, as in this case, the subsequent allocation of the contribution has effect from a date different from when the contribution was made.

Case law provides that unless there is a clear intention to tax an amount twice, an interpretation should be adopted which avoids double taxing: Dixon J in Executor Trustee and Agency Company of South Australia Ltd v Federal Commissioner of Taxation (1932) 48 CLR 26.

Further, the Explanatory Statement to Income Tax Assessment Amendment Regulations 2007 (No. 3) which introduced regulation 292-25.01 of the ITAR shows there is a clear intention not to include a contribution in concessional contributions twice.

The Explanatory Statement to Income Tax Assessment Amendment Regulations 2007 (No. 3) states:    


This approach will not result in double counting against the concessional contributions cap as contributions that are allocated directly to a reserve when made will only be counted against the contributions cap when allocated to a member.

It is considered the intent declared by this statement demonstrates that the second contribution of $25,000 is intended to be included in concessional contributions at the time the allocation of the contribution has effect (in this case, on 4 July 2011) and not when the contribution was made (if that is different).

Consequently, the member had concessional contributions of $25,000 for the 2010-11 financial year. The member also had at least $25,000 in concessional contributions for the 2011-12 financial year.

Note: Section 292-25 of the ITAA 1997 was repealed with effect from the 1 July 2013 year and replaced with section 291-25 of the ITAA 1997. This ATO ID is only applicable to contributions made before 1 July 2013 and amounts allocated with effect before 1 July 2013. Taxation Determination TD 2013/22 applies to contributions made on or after 1 July 2013 and amounts allocated with effect from a date on or after 1 July 2013 of a contribution made before 1 July 2013.

Amendment History

Date Part Comment
27 August 2014 Reason for Decision Note added for clarification.

Date of decision:  5 March 2012

Year of income:  Year ending 30 June 2012

Legislative References:
Income Tax Assessment Act 1997
   section 292-25
   subsection 292-25(2)
   subsection 292-25(3)

Income Tax Assessment Regulation 1997
   regulation 292-25.01(2)
   regulation 292-25.01(4)

Superannuation Industry (Supervision) Regulations 1994
   Division 7.2
   subregulation 7.08(2)

Case References:
Executor Trustee and Agency Company of South Australia Ltd v. Federal Commissioner of Taxation
   (1932) 48 CLR 26

Related Public Rulings (including Determinations)
Taxation Ruling TR 2010/1

Other References:
Explanatory Statement for Income Tax Assessment Amendment Regulations 2007 (No. 3)

Keywords
Excess concessional contributions
Concessional contributions

Business Line:  Superannuation

Date of publication:  9 March 2012

ISSN: 1445-2782

history
  Date: Version:
  5 March 2012 Original statement
  27 August 2014 Updated statement
You are here 6 August 2015 Withdrawn