ATO Interpretative Decision

ATO ID 2002/649 (Withdrawn)

Superannuation

• This ATOID is withdrawn because section 159T of the Income Tax Assessment Act 1936 has been repealed for the 2007-08 income years and later income years. Despite its withdrawal this ATOID is still a precedential view for income years up to an.
  This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Issue

Is a superannuation spouse contributions tax offset allowable under section 159T of the Income Tax Assessment Act 1936 (ITAA 1936) for a taxpayer whose partner is of the same sex?

Decision

No. A superannuation spouse contributions tax offset allowable under section 159T of the ITAA 1936 is not allowable for a taxpayer whose partner is of the same sex.

Facts

The taxpayer has partner who is of the same sex as the taxpayer.

The taxpayer and the taxpayer's partner live together.

The taxpayer's partner does not derive any income.

The taxpayer financially supports the taxpayer's partner.

Reasons for Decision

Section 159T of the ITAA 1936 states that where a taxpayer has a spouse in relation to whom he or she makes one or more eligible spouse contributions, and both the taxpayer and spouse are residents, the taxpayer is entitled to a rebate of tax in the taxpayer's assessment.

A spouse is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). The definition states that:

'the spouse of a person includes a person who, although not legally married to the person, lives with the person on a genuine domestic basis as the person's husband or wife.'

There is no requirement in the definition to be legally married according to the laws of Australia or another nation. However the definition states that the person must live with the person on a genuine domestic basis as the person's husband or wife. The term 'husband and wife', is not defined in tax legislation, therefore the ordinary meaning of the term is utilised.

The ordinary meaning of 'husband and wife' was examined in the case Gregory Brown v. Commissioner for Superannuation (1995) 38 ALD 344 at page 349; (1995) 21 AAR 378 at page 383 where the Administrative Appeals Tribunal stated:

'For whatever other changes the words "husband" and "wife" may have undergone over the years they retain, in our opinion, their complementary gender connotations. A "wife" is the female partner of a marital relationship and a "husband" the male partner.'

The relationship between the taxpayer and the taxpayer's partner does not fall within the ordinary everyday meaning of a husband and wife because the taxpayer's partner is of the same sex as the taxpayer. The taxpayer's partner does not satisfy the definition of a spouse as defined in section 995-1 of the ITAA 1997 as the taxpayer and the taxpayer's partner are not living on a genuine domestic basis as 'husband and wife'.

Accordingly, the taxpayer is not entitled to a superannuation spouse contribution tax offset under section 159T of the ITAA 1936.

Legislative References:
Income Tax Assessment Act 1936
   section 159T

Case References:
Gregory Brown v Commissioner for Superannuation
   21 AAR 378

Keywords
Spouse superannuation contributions
Superannuation contribution rebates

Business Line:  Superannuation

Date of publication:  19 June 2002

ISSN: 1445-2782