Edited version of your written advice

Authorisation Number: 1051223835862

Date of advice: 18 May 2017

Ruling

Subject: Deductibility of Personal Super Contributions

Question

Is the taxpayer entitled to claim a deduction for personal superannuation contributions made in the 2015-16 and the 2016-17 income year under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

Yes

Relevant facts and circumstances

The taxpayer is under the age of 75.

The taxpayer is retired from work and not employed in any capacity.

The taxpayer intends to make a personal superannuation contribution to their superannuation fund (the Fund) before the end of 2015-16 and 2016-17 income year and claim a deduction for the contributions made.

The Fund is a complying superannuation fund.

The contributions will be made for the purpose of providing superannuation benefits for the taxpayer.

The taxpayer will not receive any reportable fringe benefits or make any reportable superannuation contributions to a complying superannuation fund in the 2015-16 and 2016-17 income year.

The taxpayer's income for both the 2015-16 and 2016-17 income years comprise of income protection payments which is not eligible employment income, so their eligible employment income is 0.00% of total assessable income

The taxpayer has provided a written notice to the trustee of the superannuation fund stating their intention to claim a deduction in respect of his contributions for the 2015-16 income year and expects to provide a written notice to the trustee of the superannuation fund in the 2016-17 income year.

The taxpayer has received an acknowledgement notice issued by the trustee of the superannuation fund acknowledging their intention to claim a deduction for the 2015-16 income year. For the 2016-17 income year, the taxpayer states that they will not claim the deduction until the acknowledgement notice is received from the trustee.

A deduction for the proposed contribution will not add to or create a loss for the taxpayer in the 2015-16 and 2016-17 income year.

Assumptions

None

Relevant legislative provisions

Income Tax Assessment Act 1997 Subsection 26-55(2).

Income Tax Assessment Act 1997 Section 290-150.

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

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

Income Tax Assessment Act 1997 Subsection 290-150(3).

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.

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

Income Tax Assessment Act 1997 Subsection 290-170(2).

Income Tax Assessment Act 1997 Paragraph 290-170(2)(c)(iii)

Income Tax Assessment Act 1997 Section 290-175

Income Tax Assessment Act 1997 Section 291-25.

Income Tax Assessment Act 1997 Subsection 291-25(2).

Summary

The taxpayer can claim a deduction for the proposed superannuation contribution made in the 2015-16 and intends to make in the 2016-17 income year as all the conditions of Section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997) will be satisfied.

The contribution will be a concessional contribution in this income year.

Detailed Reasoning

Deduction for personal deductible superannuation contributions

A person must satisfy the conditions in section 290-150 of the ITAA 1997 before they can claim a deduction for personal contributions made to a superannuation fund for the purpose of providing superannuation benefits for themselves (or their dependants after their death).

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 also 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 (TR 2010/1) 'Income tax: superannuation contributions'.

The taxpayer intends to make a personal contribution to the Fund before 30 June 2016 and 30 June 2017.

Complying superannuation fund condition

The condition in section 290-155 of the ITAA 1997 requires that where the contribution is made to a superannuation fund, it must be made to a complying superannuation fund for the income year in which the contribution is made.

In this case, the taxpayer intends to make personal superannuation contributions to the Fund. As this fund is a complying superannuation fund, this requirement will be satisfied.

Maximum earnings as an employee condition

The condition in section 290-160 of the ITAA 1997 requires that if a taxpayer is engaged in any activities that result in them being treated as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA), then less than 10% of the total of the following must be attributable to those activities:

● their assessable income for the income year;

● their reportable fringe benefits (RFB) for the income year; and

● the total of their reportable employer superannuation contributions (RESC) for the income year.

This calculation is referred to as the 'maximum earnings test'.

Taxation Ruling TR 2010/1 outlines the Commissioner's view of the requirements to be satisfied for a deduction of superannuation contributions. Amongst other things, the Commissioner discusses the operation of the maximum earnings as an employee condition. Paragraph 58 states that:

Those persons who have not engaged in an 'employment' activity in the income year in which they make a contribution, such as persons who although receiving workers' compensation payments are not employed at any time during the year, are not subject to the maximum earnings test.

It has been advised that for the 2015-16 and 2016-17 income year the taxpayer:

● is retired from work and not employed in any capacity;

● will only receive income protection payments;

● will not receive any income from an employer, receive any RFB or make any RESC payments.

Based on the information provided, the taxpayer has not, and will not, be engaged in any 'employment activities' during 2015-16 and 2016-17 income years that would make them an employee for the purposes of the SGAA.

Accordingly, the taxpayer's income protection payments will not be subject to the maximum earnings test, and section 290-160 of the ITAA 1997 will not apply to the taxpayer in determining the deductibility of the personal superannuation contributions for both the 2015-16 and 2016-17 income year.

Age-related condition

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.

You have advised that the taxpayer has made contributions to the Fund in the 2015-16 income year and intends to make contributions in the 2016-17 income year. As the taxpayer is under the age of 75 in the 2015-16 and 2016-17 income year, he will satisfy the age-related condition in section 290-165 of the ITAA 1997.

Notice of intent to deduct conditions

Subsections 290-170(1) and (2) of the ITAA 1997 set out the notice and validity requirements which must be satisfied to claim a deduction for superannuation contributions.

Subsection 290-170(1) of the ITAA 1997 requires a valid notice of intent to claim a deduction in the approved form be provided to the superannuation or RSA provider. The notice must be provided before the taxpayer lodges his or her income tax return for the year or within 12 months of the end of the income year if the taxpayer had not lodged his or her return by that time. The trustee must also acknowledge receipt of the notice.

Subsection 290-170(2) of the ITAA 1997 requires the following conditions to be satisfied for a notice of intent to deduct to be valid:

a) the notice is not in respect of the contribution;

b) the notice includes all or a part of an amount covered by a previous notice;

c) when you gave the notice:

(i) you were not a member of the fund or the holder of the * RSA; or

(ii) the trustee or * RSA provider no longer holds the contribution; or

(iii) the trustee or RSA provider has begun to pay a * superannuation income stream based in whole or part on the contribution;

d) before you gave the notice:

(iv) you had made a contributions-splitting application (within the meaning given by the regulations) in relation to the contribution; and

(v) the trustee or RSA provider to which you made the application had not rejected the application.

The taxpayer has provided a valid notice of intent to claim the deduction to the Fund once the proposed contribution was made in the 2015-16 income year and intends to provide the notice of intent for the 2016-17 income year. The taxpayer will await an acknowledgment of receipt of their notice from the trustee of the Fund prior to claiming the deduction.

The taxpayer notice of intent to deduct will meet the notice conditions in subsection 290-170(1) of the ITAA 1997 provided the taxpayer lodges this notice with the Fund trustee before they lodge their income tax return for the 2015-16 and 2016-17 income year, or by 30 June 2016 (whichever is the earlier), and the trustee duly acknowledges this notice.

The taxpayer's notice of intent to deduct will be valid provided it satisfies the validity conditions listed above in subsection 290-170(2) of the ITAA 1997.

Deduction limited by amount specified in notice

Subsection 290-175 of the ITAA 1997 states that the deduction cannot be more than the amount covered by the notice given under section 290-170 of the ITAA 1997.

Provided the amount of the deduction the taxpayer will claim does not exceed the amount specified in the section 290-170 notice, they will also satisfy this requirement.

Deduction limits

Allowable deductions are limited under subsection 26-55(2) of the ITAA 1997 to the amount of assessable income remaining after subtracting all other deductions from a taxpayer's assessable income. Furthermore, allowable deductions cannot create or increase a loss to be carried forward.

The taxpayer has advised that the deduction for the proposed contribution will not add to or create a loss. Accordingly the taxpayer will satisfy this condition.

Conclusion

As the taxpayer will satisfy all the required conditions for deductibility under section 290-150 of the ITAA 1997, they can claim a deduction for the entire personal superannuation contribution made to the Fund in the 2015-16 and intends to make in the 2016-17 income year.

Concessional contributions

Under subsection 291-25(2) of the ITAA 1997, concessional contributions include personal contributions claimed as a tax deduction. For the 2015-16 and 2016-17 income tax year the concessional contributions cap is $35,000. Any additional amounts contributed during the 2015-16 and 2016-17 income year above the concessional contributions cap will count towards the taxpayer's non-concessional (after-tax) contributions cap.

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