Edited version of your private ruling

Authorisation Number: 1012524099372

Ruling

Subject: Deduction for personal super contributions

Question 1

Is the taxpayer eligible to claim a deduction under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997) for personal superannuation contributions in the 2012-13 income year?

Answer

No.

This ruling applies for the following periods:

The year ending July 2013.

The scheme commences on:

1 July 2012.

Relevant facts and circumstances

You were a member of a Superannuation Fund (the Fund).

During the 2012-13 financial year, you made a personal contribution to the Fund, which was processed as a non-concessional contribution.

During the 2012-13 financial year, you rolled over your entire interest in the Fund into another Superannuation Fund (Fund B).

Subsequently, you realised that a portion of the personal contributions made during the 2012-13 financial year should have been made as concessional contributions.

You then provided the Fund with a notice of your intention to claim a deduction for personal contributions.

The Fund advised you that due to the funds being transferred to Fund B and the closure of your super account with the Fund, they are unable to amend your personal contributions as concessional contributions.

After you provided this notice to the Fund, you lodged your income tax return for the 2012-13 income year.

Fund B have declined to make the adjustment as the contribution was not originally made to them.

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.

Income Tax Assessment Act 1936 section 23AG

Superannuation Guarantee (Administration) Act 1992 section 12.

Superannuation Guarantee (Administration) Act 1992 section 27.

Reasons for decision

Summary of decision

You are not eligible to claim a deduction for personal superannuation contributions in the 2012-13 income year because:

· you have not provided a valid notice of your intention to claim a deduction to the superannuation fund into which you made the contributions, and

· you have lodged your income tax return for the 2012-13 income year and so the period for providing a valid notice has ended.

Detailed reasoning

Personal superannuation contributions made in the 2012-13 income year

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 Income Tax Assessment Act 1997 (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'.

It is important to note, that the current test for the deductibility of personal superannuation contributions does not include the level of employer superannuation support a person receives or should have received.

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 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 be satisfied if you give the trustee of the superannuation fund the required notice of intent to deduct and the trustee of the superannuation fund acknowledges that notice.

You gave the Fund notice that you intended to claim a deduction for personal contributions made during the 2012-13 financial year. However, you had already rolled over your entire interest in the Fund into Fund B, at the time you gave the notice.

Consequently, the Fund was not the trustee which held your contributions, nor were you a member, when you lodged the notice, and accordingly the notice you provided the Fund is not a valid notice pursuant to Section 290-170 of the ITAA 1997.

It should also be noted that you could not have lodged a valid notice with Fund B, as you did not make the contribution to them.

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.

Further, please note that because you have already lodged your income tax return, you can no longer lodge a valid notice in respect of contributions made in the 2012-13 income year.

Conclusion

You have not provided a valid notice under section 290-170 of the ITAA 1997. Consequently, you are not eligible to claim a deduction under section 290-150 of the ITAA 1997 for personal superannuation contributions in the 2012-13 income year.