Income Tax Assessment Act 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES  

PART 3-30 - SUPERANNUATION  

Division 291 - Excess concessional contributions  

Subdivision 291-D - Other provisions  

Operative provisions

SECTION 291-465   Commissioner ' s discretion to disregard contributions etc. in relation to a financial year  

291-465(1)  
The Commissioner may make a written determination that, for the purposes of working out the amount of your * excess concessional contributions for a * financial year, all or part of your * concessional contributions for a financial year is to be:


(a) disregarded; or


(b) allocated instead for the purposes of another financial year specified in the determination. Conditions for making of determination

291-465(2)  
The Commissioner may make the determination only if:


(a) you apply for the determination in accordance with this section; and


(b) the Commissioner considers that:


(i) there are special circumstances; and

(ii) making the determination is consistent with the object of this Division and Division 292 .

291-465(2A)  


Paragraph (2)(a) does not apply if:


(a) the determination relates to a contribution that is an amount the Commissioner pays for your benefit under Part 8 of the Superannuation Guarantee (Administration) Act 1992 ; and


(b) the amount represents an amount of a charge payment (within the meaning of section 63A of that Act) paid as a result of a disclosure to which paragraph 74(1)(a) of that Act applies; and


(c) the entity making the disclosure qualified, under section 74 of that Act, for an amnesty in relation to the *superannuation guarantee shortfall to which the charge payment relates.

Matters to which regard may be had

291-465(3)  
In making the determination the Commissioner may have regard to the following:


(a) whether a contribution made in the relevant * financial year would more appropriately be allocated towards another financial year instead;


(b) whether it was reasonably foreseeable, when a relevant contribution was made, that you would have * excess concessional contributions or * excess non-concessional contributions for the relevant financial year, and in particular:


(i) if the relevant contribution is made in respect of you by another individual - the terms of any agreement or arrangement between you and that individual as to the amount and timing of the contribution; and

(ii) the extent to which you had control over the making of the contribution;


(c) any other relevant matters. Requirements for application

291-465(4)  
The application:


(a) must be in the * approved form; and


(b) can only be made after all of the contributions sought to be disregarded or reallocated have been made; and


(c) if you receive an * excess concessional contributions determination for the * financial year - must be given to the Commissioner within:


(i) 60 days after receiving the determination; or

(ii) a further period allowed by the Commissioner.
Notification

291-465(5)  
The Commissioner must give you:


(a) a copy of the determination; or


(b) if the Commissioner decides not to make a determination - notice of that decision.

291-465(6)  
(Repealed by No 81 of 2016)

Review

291-465(7)  
If you are dissatisfied with:


(a) a determination made under this section in relation to you; or


(b) a decision the Commissioner makes not to make such a determination;

you may object against the determination, or the decision, as the case requires, in the manner set out in Part IVC of the Taxation Administration Act 1953 .

291-465(8)  
To avoid doubt:


(a) subject to subsection 14ZVB(3) of the Taxation Administration Act 1953 , you may also object, on the ground that you are dissatisfied with such a determination or decision, relating to all or part of your * concessional contributions for a * financial year:


(i) under section 175A of the Income Tax Assessment Act 1936 against an assessment made in relation to you for the corresponding income year; or

(ii) under section 97-10 in Schedule 1 to the Taxation Administration Act 1953 against an * excess concessional contributions determination made in relation to you for the financial year; and


(b) for the purposes of paragraph (e) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 , the making of a determination under this section is a decision forming part of the process of making an assessment of tax, and making a calculation of charge, under this Act.


 

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