Edited version of private ruling

Authorisation Number: 1011592742070

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Ruling

Subject: Personal superannuation contributions

Questions:

Can your client claim a deduction in respect of a personal superannuation contribution for the 2008-09 income year under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answers:

No

This ruling applies for the following period:

Year ended 30 June 2009

The scheme commenced on:

1 July 2008

Relevant facts:

Your client made a superannuation contribution to an Australian complying superannuation fund (the Fund) with the intention to claim a tax deduction for the amount paid.

Your client made the contribution within 28 days from the end of the month in which they turned 75 years of age.

The Notice of intention to claim a deduction (the Notice) was not submitted to the Fund in time. The due date for the lodgement of the Notice has now passed.

Relevant legislative provisions:

Income Tax Assessment Act 1997 Section 290-150

Income Tax Assessment Act 1997 Subsection 290-150(2)

Income Tax Assessment Act 1997 Section 290-155

Income Tax Assessment Act 1997 Section 290-160

Income Tax Assessment Act 1997 Section 290-165

Income Tax Assessment Act 1997 Subsection 290-165(2)

Income Tax Assessment Act 1997 Section 290-170

Reasons for decision

Summary

Your client did not give the superannuation fund a valid notice in an approved form in time. As a result, they cannot claim a deduction in respect of the personal contribution made in the income year.

The Commissioner does not have the discretion to extend or disregard the period during which a person may lodge a notice with their superannuation fund.

Detailed reasoning

Personal deductible superannuation contributions:

From 1 July 2007, a person must satisfy the conditions in section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997) before they can claim a deduction in respect of personal contributions made for the purpose of providing superannuation benefits for themselves, or their dependants after their death.

However, subsection 290-150(2) of the ITAA 1997 provides that the conditions in sections 290-155, 290-160, 290-165 and 290-170 of the ITAA 1997 must all be satisfied before a person can claim a deduction for the contributions made in that income year.

Complying superannuation fund condition:

Section 290-155 of the ITAA 1997 states that:

If the contribution is made to a superannuation fund, it must be a complying superannuation fund for the income year of the fund in which you made the contribution.

In this case, your client has made a contribution to an Australian complying superannuation fund (the Fund). Therefore, section 290-155 of the ITAA 1997 is satisfied.

Age-related conditions:

Under subsection 290-165(2) of the ITAA 1997 the ability to claim a deduction ceases for contributions that are made after 28 days from the end of the month in which the person making the contribution turns 75 years of age.

The facts provided show that your client satisfies this requirement

Notice of intent to deduct conditions:

Section 290-170 of the ITAA 1997 requires a person to provide a valid notice of their intention to claim the deduction to the trustee of their superannuation fund. The notice must be given before the earlier of:

· the date your client lodged her income tax return for the income year in which the contribution was made; or

· the end of the income year following the year in which the contribution was made.

In addition, your client must also have been given an acknowledgement of the notice by the trustee of the superannuation fund.

A notice will be valid as long as the following conditions apply:

· the notice is in respect of the contributions;

· the notice is not for an amount covered by a previous notice;

· at the time when the notice is given:

· your client is a member of the fund or the holder of the retirement savings account (RSA);

· the trustee or RSA provider holds the contribution (for example, a notice will not be valid if a partial roll-over of the superannuation benefit which includes the contribution covered in the notice has been made);

· the trustee or RSA provider has not begun to pay a superannuation income stream based on the contribution; or

· before the notice is given:

· a contributions splitting application has not been made in relation to the contribution; and;

· the trustee or RSA provider has not rejected the application.

In this case, your client did not submit a valid notice in an approved form to the Fund in time, and the due date for the lodgement of the Notice has now passed. Consequently, section 290-170 of the ITAA 1997 is not satisfied.

As the condition in section 290-170 of the ITAA 1997 has not been satisfied, it is not necessary to determine whether the condition of 290-160 has been satisfied.

Therefore, your client is not eligible to claim a deduction for the personal superannuation contribution made in the income year.

It should be noted that, the Commissioner of Taxation can only exercise, or refuse to exercise, a discretion when he is given that discretion in the legislation he administers. Thus in these circumstances, there is no discretion available to the Commissioner to allow the deduction to be claimed.

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