ATO Interpretative Decision

ATO ID 2001/39 (Withdrawn)

Superannuation

Superannuation: Personal Superannuation Contributions
FOI status: may be released

This ATO ID no longer reflects the ATO view due to legislative changes contained in Superannuation (Government Co-contribution for Low Income Earners) (Consequential Amendments) Act 2003 (111 of 2003)

This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Whether a taxpayer can claim a deduction under section 82AAT (Income Tax Assessment Act 1936) (ITAA 1936) for personal superannuation contributions where the employer has not provided any superannuation support on their behalf.

Decision

The taxpayer was found to be an 'eligible person' and was entitled to claim a deduction for personal superannuation contributions under section 82AAT (ITAA 1936).

Facts

The taxpayer was employed during the year in which the personal contributions were made. The income from the 'eligible employment' represented 17% of the taxpayer's total assessable income for the year of income. However, the taxpayer's employer did not make superannuation contributions during the year as the employer's business had been wound up and there were no funds to pay the any superannuation benefits or to meet the Superannuation Guarantee Charge.

Reasons For Decision

A taxpayer is able to claim a deduction for personal superannuation contributions if the requirements of subsection 82AAT(1) (ITAA 1936) are met.

In this particular case the decision to allow a deduction for the taxpayer's personal contributions depended largely on whether the taxpayer was an 'eligible person' in relation to the year of income.

Subsection 82AAS(2) (ITAA 1936) defines 'eligible person'. Effectively, a taxpayer is not an 'eligible person' if it is reasonable to expect that during the whole or part of the year of income superannuation benefits would be provided for the person in the event of retirement or, in the event of death, for dependents of the person and those benefits would be wholly or partly provided for the taxpayer by another person (for example, an employer).

Where it is not reasonable to expect that any superannuation benefits including the Superannuation Guarantee Charge will be paid because the employer's business has been wound up and there are no funds available to make the payments , the employee may be an 'eligible person' (Taxation Ruling TR 96/25).

In this particular case it was reasonable to expect that the taxpayer's employer was unable to provide any superannuation benefits or met the Superannuation Guarantee Charge obligations to the taxpayer as the employer's business had been wound up and there were no funds available to make any payments. The taxpayer was accordingly found to be an 'eligible person'.

Date of decision: 13 July 1998

Legislative References:
Income Tax Assessment Act 1936
section 82AAS
section 82AAT

Related Public Rulings (including Determinations)
TR 96/25

Keywords
Employee superannuation contributions
Superannuation contributions
Employer superannuation contributions

Business Line: Superannuation

Date of publication: 4 June 2001

ISSN: 1445-2782

history

	Date:	Version:
	13 July 1998	Original statement
You are here	7 April 2006	Archived

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