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 290-75 Complying fund conditions 290-75(1)
If the contribution was made to a * superannuation fund, at least one of these conditions must be satisfied:
(a) the fund was a * complying superannuation fund for the income year of the fund in which you made the contribution;
(b) at the time you made the contribution, you had reasonable grounds to believe that the fund was a complying superannuation fund for that income year;
(c) at or before the time you made the contribution, you obtained a written statement (given by or on behalf of the trustee of the fund) that the fund:
(i) was a resident regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ); and
(ii) was not subject to a direction under section 63 of that Act (which prevents a fund from accepting employer contributions).
290-75(2)
However, the condition in paragraph (1)(b) or (c) cannot be satisfied if, when the contribution was made:
(a) you were:
(i) the trustee or the manager of the fund; or
(ii) an * associate of the trustee or the manager of the fund; and
(b) you had reasonable grounds to believe that:
(i) the fund was not a resident regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ); or
(ii) the fund was operating in contravention of a regulatory provision (within the meaning of section 38A of that Act).
290-75(3)
For the purposes of subparagraph (2)(b)(ii), a contravention of the Superannuation Industry (Supervision) Act 1993 or regulations made under it is to be ignored unless the contravention is:
(a) an offence; or
(b) a contravention of a civil penalty provision of that Act or those regulations.
290-75(4)
For the purposes of subparagraph (2)(b)(ii), it is sufficient if a contravention is established on the balance of probabilities.
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