Edited version of your written advice

Authorisation Number: 1012936261715

Date of advice: 14 January 2016

Ruling

Subject: Deductibility of personal superannuation contributions

Question

For the purposes of section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997), has the Taxpayer satisfied the conditions in section 290-170 of the ITAA 1997?

Answer

No.

This ruling applies for the following periods:

Income year ended 30 June 2015.

The scheme commences on:

1 July 2014.

Relevant facts and circumstances

The Taxpayer was a member of a complying superannuation fund (the Fund).

During the 2014-15 income year, the Taxpayer made personal contributions into the Fund.

The Taxpayer sent a 'Notice of Intent to Claim a Deduction' form to the Fund. This deduction notice requested that contributions made by the Taxpayer in the 2014-15 income year, be counted as personal deductible contributions.

A few days later, the Taxpayer provided a rollover request to the Fund. The Fund processed the rollover but failed to process the deduction notice and contributions were rolled over into the Taxpayer's self-managed superannuation fund as non-concessional contributions.

The Fund has advised that they never received the original deduction notice. They have also stated that as they no longer hold the contributions, they are unable to amend the Taxpayer's personal contributions as concessional contributions.

The Taxpayer has not yet lodged their 2014-15 income tax return.

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

The Taxpayer cannot claim a deduction for personal superannuation contributions made to the Fund in the 2014-15 income year because the trustee of the Fund has not given to the Taxpayer an acknowledgement of the receipt of the notice of intent to deduct contributions as required by section 290-170 of the ITAA 1997.

Detailed reasoning

Deducting Personal contributions

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, if certain conditions are met.

Subsection 290-150(2) of the ITAA 1997 states 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. These conditions are explained in detail in Taxation Ruling TR 2010/1 (TR 2010/1) entitled 'Income Tax: superannuation contributions'.

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. This notice must be given before the earlier of:

• the date they lodge their 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, the person 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:

• the person 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 to which you made the application has not rejected the application.

In this case, it is stated that the Taxpayer provided the trustee of the Fund (the Trustee) with a valid notice that they intended to claim a deduction for personal contributions made during the 2014-15 income year. However, the Trustee did not give to the Taxpayer an acknowledgment of the notice as required.

The Trustee has advised that they never received the Taxpayer's notice of intent to claim a deduction, consequently, on the Taxpayer's request, the Trustee rolled over the Taxpayer's benefits in the Fund into a self-managed superannuation fund.

As the Fund no longer holds the Taxpayer's contributions, the Taxpayer can no longer give to the Trustee a valid notice of intent to claim a deduction for those contributions.

Having failed notice requirements as set out in section 290-170 of the ITAA 1997, 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 all the tests specified in section 290-150 must be satisfied.

Consequently, the Taxpayer cannot claim a deduction under section 290-150 of the ITAA 1997 for personal superannuation contributions made to the Fund in the 2014-15 income year.

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