Edited version of your written advice

Authorisation Number: 1051372495203

Date of advice: 18 May 2018

Ruling

Subject: Personal superannuation contribution

Question

Are you entitled to claim a deduction for a personal superannuation contribution in the 2015-16 income year?

Answer

No

This ruling applies for the following period:

30 June 201X

The scheme commences on:

1 July 201X

Relevant facts and circumstances

You are a member of a superannuation fund.

You have made a contribution in the 201X-1X income year.

You suffered from a serious illness for which you received treatment for in 201X.

You are still suffering from the consequences of the treatment received.

When you lodged your Notice of Intent with your superannuation fund the fund rejected your application as it was out of time.

You were unable to change your contributions to concessional.

You have not lodged your income tax return for the 201X-1X income year.

Reasons for decision

A deduction is available for personal superannuation contributions (PSC) made during the income year ended 30 June 201X where all the conditions specified in section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997) are met.

These conditions are:

• Where the contribution is made to a superannuation fund, the fund must be a complying superannuation fund in the income year that the contribution was made, and

• You must satisfy the age related conditions, and

• You must not have exceeded the maximum earnings as an employee condition (if applicable) and

• You must have given a valid notice of intent to the superannuation fund in the approved form by the required time and received acknowledgement from the fund

These rules do not differentiate between retail funds, retirement savings accounts or self-managed super funds.

1. Complying fund condition

Section 290-155 of the ITAA 1997 sets out the condition regarding the complying status of the superannuation fund/s to which the contribution was made.

In your case, you are considered to have made contributions into a super fund which is a complying superannuation fund.

2. Age related condition

Section 290-165 of the ITAA 1997 sets out the age related conditions which must be met to be entitled to claim a deduction and stipulates that;

• If you were under 18 years of age at the end of the income year in which you made the contribution, you must have derived income from:

• carrying on a business, or

• from activities related to employment that resulted in you being treated as an employee (as defined in section 290-160), or

• You were under 75 years of age, or

• If you turned 75 years of age, the contribution was made before 28 days after the end of the month in which you turned 75.

In your case as you were under 75 years of age in the income year that the contribution was made, you have met this condition.

3. Maximum earnings as employee condition

Section 290-160 of the ITAA 1997 considers the maximum earnings as an employee condition.

4. Valid notice of intent to deduct condition

Section 290-170 of the ITAA 1997 details the conditions that need to be satisfied regarding the notice of intent to deduct contributions.

These conditions are:

Deductibility of contributions

(1) To deduct the contribution, or a part of the contribution:

(a) you must give to the trustee of the fund or the RSA provider a valid notice, in the approved form, of your intention to claim the deduction; and

(b) the notice must be given before:

(i) if you have lodged your income tax return for the income year in which the contribution was made on a day before the end of the next income year--the end of that day; or

(ii) otherwise--the end of the next income year; and

(c) the trustee or provider must have given you an acknowledgment of receipt of the notice.

.A valid notice must be given to the trustee of the relevant fund or the RSA provider and that notice must be given by the time provided for in paragraph 290-170(1)(b). That time is the earlier of the date of lodgment of the taxpayer’s income tax return for the year in which the contribution was made and the end of the next income year. A further requirement is that the trustee or provider must have given the taxpayer an acknowledgement of receipt of the notice.

In your case to comply with section 290-170(1)(b) your notice of intent was required to be lodged with your fund no later than 30 June 2017.

5. Conclusion

No extension of time for lodgement of the notice is provided for by the section In your case, you have not provided notification of your intention to claim a deduction during the required period. Your super fund has not been able to acknowledge receipt of your notice as your notice of intent to claim was made after the cut-off date.

The context in which section 290-170 arises also supports a legislative intention to set a fixed time period for lodgment of the notice. Whether a taxpayer is entitled to a deduction for superannuation contributions (to which a section 290-170 notice relates) has a close interaction with other taxation entitlements and obligations, specifically in relation to superannuation co-contributions, excess contributions tax and the taxation position of a superannuation fund or RSA provider.

These limitations combine with the language of section 290-170 to suggest a legislative intention to ensure certainty and finality and reducing administrative burdens for the taxpayer and other parties affected by the notices.

As you have not met all of the applicable conditions listed in section 290-150 of the ITAA 1997 you are not entitled to claim a deduction for a personal superannuation contribution.

Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).