1011524789034 | Legal database

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Edited version of private ruling

Authorisation Number: 1011524789034

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Ruling

Subject: Deduction for personal superannuation contributions

Question

Can your client vary a notice of intent to deduct contributions under section 290-170 of the Income Tax Assessment Act 1997 (ITAA 1997) to increase the amount of deduction claimed for personal superannuation contributions?

Answer

This ruling applies for the period:

Year ended 30 June 2009

The scheme commences on:

On or after 1 July 2008

Relevant facts

In a letter in the 2009-10 income year from your client's fund manager, your client's fund manager advised that your client had made personal superannuation contributions to a superannuation fund during the 2008-09 income year. The letter also advised that if your client wished to claim a tax deduction your client should complete the member declaration section on the statement and return it to their office by a set date during the 2009-10 income year.

Your client signed the member declaration section of the statement during the 2009-10 income year and returned it to your client's fund manager. The member declaration stated:

Please alter my personal contributions for the 2008/2009 year to $NIL.

(Note: …This is the amount of my personal contributions I wish to claim as a deduction).

You advised that your client's agent's office had in error advised your client's fund manager that your client's personal superannuation contributions should be nil. Your client had intended to claim a deduction for personal superannuation contributions.

Your office has contacted your client's fund manager who has indicated that they are not prepared to revert back to the original advice.

Your client claimed a deduction for personal superannuation contributions to the superannuation fund in your client's income tax return in the 2008-09 income year.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 290-170

Income Tax Assessment Act 1997 Subsection 290-180(2)

Reasons for decision

Summary

Your client is not entitled to vary a notice of intent to deduct contributions under section 290-170 of the ITAA 1997 to increase the amount of deduction claimed for personal superannuation contributions.

Detailed reasoning

Notice of intent to deduct contributions

Section 290-170 of the ITAA 1997 requires a person to provide a valid notice of their intent to claim a deduction for personal superannuation contributions to the trustee of their superannuation fund. In addition, a person must also have been given an acknowledgement of the notice by the trustee of the superannuation fund.

From the facts provided, your client intended to claim a deduction of for personal superannuation contributions. However, your client has in error advised the client's fund manager that the amount of personal superannuation contributions to be claimed as a deduction is nil. The client's fund manager has advised that they are not prepared to vary the notice.

Under subsection 292-180(2) of the ITAA 1997 a person can vary a valid notice, but only so as to reduce the amount stated in relation to the contribution (including to nil). However there is no provision in the ITAA 1997 to vary a notice to increase the amount of contributions to be claimed as a deduction.

Your client has provided a valid notice to their superannuation fund of their intention to claim a tax deduction for personal superannuation contributions of nil in their income tax return in the 2008-09 income year. As there is no provision in the ITAA 1997 to vary a notice to increase the amount of contributions to be claimed as a deduction, your client is entitled to a nil amount of deduction for personal superannuation contributions.

Conclusion

Your client cannot vary a notice of intent to deduct contributions to increase the amount to be claimed a deduction for personal superannuation contributions. Therefore your client is entitled to a nil amount of deduction for personal superannuation contributions. Your client should request an amendment to your client's income tax return for the 2008-09 income year to reduce the deduction for personal superannuation contributions from the amount claimed to nil.

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