ATO Interpretative Decision
ATO ID 2001/54 (Withdrawn)
Income Tax
Deductions and expenses: Superannuation (Personal Contributions)FOI status: may be released
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This ATO ID is superseded by Taxation Ruling TR 2005/24This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 an employee can claim an income tax deduction for personal superannuation contributions to a complying fund if it is 'reasonable to expect' that superannuation benefits would be provided to the employee, where those benefits are attributable to contributions made to such a fund by another person.
Decision
No. The taxpayer was not entitled to claim a deduction for the personal superannuation contributions as the requirements of subsection 82AAT(1) (Income Tax Assessment Act 1936 (ITAA 1936)) had not been met and there were reasonable grounds to expect that superannuation benefits attributable to an employer's contributions to the fund would be provided for the taxpayer.
Facts
During the year of income the taxpayer had made a large personal contribution to a complying superannuation fund and notified the fund that they intended to claim a deduction for the contribution.
Reasons For Decision
Subsection 82AAT(1) (ITAA 1936) sets out the requirements that must be met before a personal superannuation contribution qualifies for a deduction. One of these requirements is that the person making the contribution is an 'eligible person'.
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 attributable to contributions made to the fund by another person (for example an employer) (paragraphs 82AAS(2)(a) and (b) (ITAA 1936)).
For the purposes of the 'eligible person' test, various provisions ensure that the payments of the Superannuation Guarantee Charge (Superannuation Guarantee (Administration) Act 1992) are treated as employer superannuation support in the year for which it is payable (subsection 82AAS(4), subsection 82AAS(5), subsection 82AAS(6) and subsection 82AAS(7) (ITAA 1936)).
In this particular case, it was 'reasonable to expect' that the taxpayer's employer was able to meet the Superannuation Guarantee Charge obligations to the taxpayer for the year of income. There were sufficient funds available for the employer to meet the obligation and steps had been taken to ensure the obligation was met. Accordingly, the taxpayer would not be an 'eligible person' for the purposes of subsection 82AAS(2) (ITAA 1936) and would not be entitled to claim a deduction for the personal superannuation contributions.
This view is confirmed by AAT Case 24/97 97 ATC 284; 35 ATR 1254 (see also Taxation Ruling TR 96/25).
Date of decision: 15 July 1997
Legislative References:
Income Tax Assessment Act 1936
subsection 82AAT(1)
subsection 82AAS(2)
subsection 82AAS(3)
subsection 82AAS(4)
subsection 82AAS(5)
subsection 82AAS(6)
subsection 82AAS(7)
SG(A)92
Case References:
Case 24/97
97 ATC 284
35 ATR 1254
Related Public Rulings (including Determinations)
TR 96/25
Keywords
Superannuation contributions
Employee superannuation contributions
Employer superannuation contributions
ISSN: 1445-2782
| Date: | Version: | |
| 15 July 1997 | Original statement | |
| You are here | 7 April 2006 | Archived |
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