1011721742011 | Legal database

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Edited version of private ruling

Authorisation Number: 1011721742011

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Ruling

Subject: Deduction for personal superannuation contribution

Question:

Have the notice requirements for claiming a deduction for personal superannuation contributions in the 2008-09 income year been satisfied under section 290-170 of the Income tax Assessment Act 1997 (ITAA 1936)?

Answer:

No.

This ruling applies for the following period:

Year ended 30 June 2009

The scheme commenced on:

1 July 2008

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

Your client is under 55 years of age.

Your client made a personal contribution a complying superannuation fund (the Fund) in the 2008-09 income year.

The contribution was made in order to obtain superannuation benefits for your client or your client's dependants in the event of your client's death.

You stated that your client provided a written notice to the trustee of the Fund advising your client's intention to claim a tax deduction in respect of the personal contribution made in the 2008-09 income year prior to the lodgement of income tax return for that year.

You also stated that a copy of the written notice was not kept by your client.

Your client claimed the personal superannuation contribution as a deduction in his 2008-09 income tax return.

Your client reviewed his superannuation account statement and realised that tax has not been deducted on the personal superannuation contributions made in the 2008-09 income year.

Your client contacted the Fund and the representative of the Fund revealed that they did not receive the written notice and therefore treated the contributions as non-concessional contributions.

This ruling is given on the basis of the facts stated in the description of the scheme as set out above. Any material variation from these facts (including any matters not stated in the description above and any departure from these facts) will mean that the ruling will have no effect. No entity will then be able to rely on this ruling as the Commissioner will consider that the scheme has been implemented in a way that is materially different from the scheme described.

Relevant legislative provisions:

Income Tax Assessment Act 1997 Section 290-150.

Income Tax Assessment Act 1997 Subsection 290-150(1)

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 Section 290-170.

Income Tax Assessment Act 1997 Subsection 290-170(1).

Reasons for decision

Summary

The trustee of the superannuation fund never received the written notice of intent to claim a deduction for personal superannuation contributions from your client and therefore can not acknowledge a notice it has not received. In this instance, the notice requirements for claiming a deduction for personal superannuation contributions have not been satisfied. Accordingly, your client is not entitled to claim a deduction in respect of personal superannuation contributions made in the 2008-09 income year.

Detailed reasoning

Deductions for superannuation contributions

From 1 July 2007, subsection 290-150(1) of the ITAA 1997 allows a person to claim a deduction in respect of personal contributions made to a superannuation fund or retirement savings account (RSA) during an income year for the purpose of providing superannuation benefits for themselves, or their dependants after their death.

However, 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. These conditions are explained in detail in Taxation Ruling TR 2010/1 Income Tax: superannuation contributions (TR 2010/1).

Notice of intent to deduct conditions

One of these conditions, in section 290-170 of the ITAA 1997, is that the person making a contribution must provide a notice of intent to claim a deduction (the notice) to their superannuation fund.

Section 290-170 of the ITAA 1997 provides that not only must your client give the notice to the Fund, but also that an acknowledgment of receipt of the notice must be given to your client by the Fund (paragraph 290-170(1)(c) of the ITAA 1997).

In this case, your client made personal superannuation contributions to the Fund in the 2008-09 income year. You state that your client provided a written notice to the trustee of the Fund advising your client's intention to claim a tax deduction in respect of the personal superannuation contributions made in the 2008-09 income year. However the notice in relation to these contributions was never received by the trustee of the Fund therefore the trustee can not acknowledge a notice it has not received.

As your client did not receive any acknowledgment from the trustee of the Fund in order to claim a deduction for personal superannuation contribution, your client has not satisfied the notice requirements in paragraph 290-170(1)(c) of the ITAA 1997.

Discretion

Section 290-170 of the ITAA 1997 does not give to the Commissioner the power to exercise a discretion to allow a deduction where any of the requirements of this provision have not been satisfied, regardless of the reasons those requirements were not met, or the extent to which those reasons were beyond the taxpayer's control.

The Commissioner also does not have the power to exercise a discretion to grant an extension of time for a person to lodge a notice under section 290-170 of the ITAA 1997.

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