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Edited version of your private ruling
Authorisation Number: 1012556759898
Ruling
Subject: Personal deductible superannuation contributions
Question 1
Are you entitled to claim a deduction under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997) in respect of personal superannuation contributions made in the 2008, 2009, 2010 and 2011 financial years?
Answer
No.
Question 2
Are you entitled to claim a deduction under section 290-150 of the ITAA 1997 in respect of personal superannuation contributions made in the 2012 financial year?
Answer
No.
This ruling applies for the following periods:
Financial year ended 30 June 2008
Financial year ended 30 June 2009
Financial year ended 30 June 2010
Financial year ended 30 June 2011
Financial year ended 30 June 2012
The scheme commences on:
1 July 2007
Relevant facts and circumstances
You made superannuation contributions for the financial years ended 30 June 2008, 30 June 2009, 30 June 2010, 30 June 2011 and 30 June 2012 to a superannuation fund (Fund A).
Fund A did not consider that you gave a valid notice of intent to claim a deduction for the financial years ended 30 June 2008, 30 June 2009, 30 June 2010, 30 June 2011 and 30 June 2012.
Consequently, Fund A did not provide a written acknowledgment of personal deductible contributions to you.
You claimed a deduction for personal superannuation contributions made to Fund A for the financial years ended 30 June 2008, 30 June 2009, 30 June 2010 and 30 June 2011.
In late 2012 the entire balance with Fund A was rolled out of Fund A and rolled into another superannuation fund (Fund B).
You lodged your income tax return for the 2012 financial year and did not claim a deduction for personal superannuation contributions made to Fund A for the financial year ended 30 June 2012.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 290-150.
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.
Reasons for decision
Summary
In order to deduct a contribution made to a superannuation fund several legislative requirements must be satisfied. One of the legislative provisions that must be satisfied relates to the notice of intent to deduct a contribution and the acknowledgment of a valid notice.
Based on the information provided, you have not provided a valid notice of your intention to claim a deduction to the superannuation fund into which you made personal superannuation contributions and therefore, are not eligible to claim a deduction for personal superannuation contributions made for the 2008, 2009, 2010, 2011 and 2012 financial years.
Detailed reasoning
Personal superannuation contributions made in the 2008-11 financial years
An individual can claim a deduction for personal contributions made to a superannuation fund for the purpose of providing superannuation benefits for themselves under section 290-150 of the ITAA 1997, provided certain conditions are met.
Subsection 290-150(2) of the ITAA 1997 provides that the conditions in sections 290-155, 290-160 (if applicable), 290-165 and 290-170 of the ITAA 1997 must all be satisfied before the person can claim a deduction for the contributions made in that income year.
In your case, the issue turns on whether the conditions under section 290-170 of the ITAA 1997 in relation to a valid notice of intent to deduct contributions and the acknowledgment of that notice has been satisfied.
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. This notice must be given before the earlier of:
· the date you lodge your 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, you 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:
o you are a member of the fund or the holder of the retirement savings account (RSA);
o 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);
o the trustee or RSA provider has not begun to pay a superannuation income stream based on the contribution; or
· before the notice is given:
o a contributions splitting application has not been made in relation to the contribution; and;
o the trustee or RSA provider to which you made the application has not rejected the application.
This condition will therefore be satisfied if you give the trustee of the superannuation fund a valid notice (in the approved form), of your intent to deduct personal superannuation contributions within the prescribed time constraints and the trustee of the superannuation fund acknowledges that notice.
You contend that you were anticipating that Fund A would have prompted you with a Notice of Intent to Claim Form to be completed for the relevant financial years in question, as they had done for the financial year ended 30 June 200X.
In relation to the conditions for deducting personal contributions under the ITAA 1997, there are no legislative provisions that compel the trustee of a superannuation fund to prompt its members with supplying a Notice of Intent to Claim Form. The responsibility and onus to provide a valid notice of intent to deduct a contribution to the trustee of a superannuation fund rests with the member.
In your case, as you have not provided Fund A with a valid notice of your intention to claim a deduction for contributions made in the relevant financial years you have not satisfied the requirements of section 290-170 of the ITAA 1997 and therefore are not eligible to claim a deduction under section 290-150 of the ITAA 1997 in respect of personal superannuation contributions made to Fund A in those financial years.
Furthermore, as you are no longer a member of Fund A, you cannot now lodge a valid notice of intent to deduct those contributions made to Fund A in the relevant financial years where you are no longer a member of that fund.
The Commissioner has no discretion or legislative authority under the income tax laws to direct your superannuation fund to re-report superannuation contributions already reported and accounted for. It should be noted, that should you decide to 'roll back' an amount from Fund B to Fund A, you would still not qualify for a deduction for personal superannuation contributions in respect of the relevant years, as:
· the time limits surrounding the giving of the notice of intent have already lapsed, and
· such a 'roll back' would not mean Fund A again holds the relevant contributions - they will actually be holding a rolled over superannuation benefit from Fund B, whose components are already fixed.
Having failed to provide a valid notice, there is no need to examine whether the conditions of sections 290-155, 290-160 and 290-165 of the ITAA 1997 would be satisfied, as you must satisfy all the tests specified in section 290-150.
We note that whilst you have already claimed a deduction for personal superannuation contributions made for the relevant financial years, you are not eligible to claim a deduction for personal superannuation contributions in those financial years.
Personal superannuation contributions made in the 2011-12 financial year
As you have not provided Fund A a valid notice of intent to deduct contributions made for the 20XX financial year, you are not eligible to claim a deduction for superannuation contributions made to Fund A in the 20XX financial year, for the same reasons explained above.
Further, the fact that you are not a member of Fund A, that Fund A no longer holds the contributions to which the notice would apply and that you have already lodged your tax return for the 20XX financial year, means that you can no longer lodge a valid notice in respect of superannuation contributions made in the 20XX financial year.
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