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Edited version of your private ruling
Authorisation Number: 1012548426646
Ruling
Subject: seniors and pensioners tax offset
Question 1
Are you entitled to a seniors and pensioners tax offset for the 2012-13 income year?
Answer
No.
Question 2
Where you lodge a claim for the age pension, will you be entitled to a seniors and pensioners tax offset?
Answer
Yes.
This ruling applies for the following periods
Year ended 30 June 2013
Year ended 30 June 2014
Year ended 30 June 2015
Year ended 30 June 2016
The scheme commenced on
1 July 2012
Relevant facts
You have reached age pension age.
Your spouse has passed away.
Both you and your late spouse arrived in Australia less than ten years ago and have been living here continuously since then.
You are an Australian citizen and your late spouse held a permanent residence visa.
You have not lodged a claim for age pension as you are not entitled to the pension due to the assets test.
Your rebate income is less than the relevant threshold.
You have not been in goal at any time.
Relevant legislative provisions
Income Tax Assessment Act 1936 Section 160AAAA
Reasons for decision
Section 160AAAA of the Income Tax Assessment Act 1936 (ITAA 1936) provides a rebate for low income aged persons and persons receiving age pensions under certain Commonwealth legislation. The rebate is available to individuals (other than in the capacity as trustee) who satisfy the eligibility requirements.
The first condition as set out in subsection 160AAAA(2) of the ITAA 1936 requires one of the following to be satisfied:
(a) on at least one day during the income year the taxpayer is eligible for a pension, allowance or benefit under the Veterans' Entitlements Act 1986 (other than in respect of the veterans' children education scheme in Pt VII of that Act); and has reached pension age (within the meaning of that Act); and is not in gaol, or
(b) on at least one day during the income year the taxpayer is qualified for an age pension under the Social Security Act 1991; and is not in gaol, or
(c) the taxpayer's assessable income includes an amount of (i) social security pension or education entry payment under the Social Security Act 1991, or (ii) service pension, carer service pension, income support supplement or Defence Force Income Support Allowance (within the meaning of the Veterans' Entitlements Act 1986) or a DFISA-like payment mentioned in Div 4 of Pt VIIAB of that Act; and on at least one day during the income year, the taxpayer is not in gaol.
Paragraph 160AAAA(2)(b) is relevant in your circumstances.
Qualification for age pension is outlined in section 43 of the Social Security Act 1991 (SSA). Subsection 43(1A) of the SSA states:
A woman is qualified for an age pension if:
(a) the woman has reached pension age; and
(b) the woman's partner has died; and
(c) both the woman and her partner were Australian residents when her partner died; and
(d) the woman was an Australian resident for a continuous period of at least 104 weeks immediately before the day she lodged the claim for the age pension.
Australian resident as defined in subsection 7(2) of the SSA includes a person who resides in Australia and is an Australian citizen or the holder of a permanent visa.
You satisfy paragraphs 43(1A) (a), (b) and (c) of the SSA, however, because you have not made a claim for the age pension, you do not satisfy paragraph (d). Therefore you are not entitled to a seniors and pensioners tax offset in the 2012-13 income year. However if you lodge a claim for the age pension in the 2013-14 income year, you will then be eligible for the tax offset.
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