Edited version of your private ruling

Authorisation Number: 1012605902312

Ruling

Subject: Deductibility of personal superannuation contributions.

Question

Is the taxpayer entitled to claim a deduction for personal superannuation contributions made in the 2013-14 income year under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes.

This ruling applies for the following period:

Year ended 30 June 2014.

The scheme commences on:

1 July 2013.

Relevant facts and circumstances

The taxpayer is over 60 years of age.

The taxpayer intends to make personal superannuation contributions totalling to a superannuation fund (the Fund) before 30 June 2014 and claim a deduction for the contribution.

The Fund is a complying superannuation fund.

The contributions will be made for the purpose of providing superannuation benefits for the taxpayer (or his/her dependants before or after his/her death).

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

The taxpayer's income for the 2013-14 income year comprises of:

• a defined benefit pension;

• interest derived from bank deposits; and

• a pension income stream.

The taxpayer will not receive any reportable fringe benefits or any reportable superannuation contributions to a complying superannuation fund in the 2013-14 income year.

The taxpayer will provide a written notice to the trustee of the superannuation fund stating their intention to claim a deduction in respect of their contributions.

The taxpayer expects to receive an acknowledgement notice issued by the trustee of the superannuation fund acknowledging their intention to claim a deduction, and will not claim a deduction until this is received.

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 292-25.

Income Tax Assessment Act 1997 Section 292-25(2).

Reasons for decision

Summary

The taxpayer can claim a deduction for the proposed superannuation contribution he/she intends to make in the 2013-14 income year as all the conditions of Section 290-150 of the Income Tax Assessment Act 1997 will be satisfied.

Detailed Reasoning

Deduction for personal deductible superannuation contributions

A person must satisfy the conditions in section 290-150 of the Income Tax Assessment Act 1997 (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 a superannuation fund (the Fund) before 30 June 2014.

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 a superannuation 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.

The taxpayer has advised that for the 2013-14 income year he:

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

• will only receive pension payments and bank interest; and

• 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 engaged in any 'employment activities' during the 2013-14 income year that would make them an employee for the purposes of the SGAA.

Accordingly, the maximum earnings as an employee condition under section 290-160 of the ITAA 1997 will not apply to the taxpayer for the 2013-14 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.

The taxpayer has advised that he/she intends to make contributions to the Fund in the 2013-14 income year. As the taxpayer is under the age of 75 in the 2013-14 income year, they 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 you to provide your superannuation or RSA provider with a valid notice of intent to claim a deduction in the approved form. The notice must be provided before lodging your income tax return for the year or within 12 months of the end of the income year if you have not lodged your 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;

a) before you gave the notice:

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

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

The taxpayer intends to provide a valid notice of intent to claim the deduction to the Fund once the proposed contribution is made. The taxpayer will await an acknowledgment of receipt of his/her notice from the Trustee of the Fund prior to claiming the deduction.

The taxpayer's 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 he/she lodges his/her income tax return for the 2013-14 income year, or by 30 June 2015 (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. Note that the taxpayer will not fail to satisfy the validity condition in section 290-170(2)(c)(iii) due to their current receipt of pension income from their superannuation fund. This income stream is derived from a separate account within the fund and does not contain any part of the taxpayer's proposed contribution.

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 his section 290-170 notice, the taxpayer 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.

Provided the proposed contribution does not add to or create a loss, the taxpayer will satisfy this condition.

Conclusion

Provided the taxpayer will be able to satisfy all the required conditions for deductibility under section 290-150 of the ITAA 1997, they will be entitled to claim a deduction for the personal superannuation contribution made to the Fund in the 2013-14 income year.

Additional information

Under subsection 292-25(2) of the ITAA 1997, concessional contributions include personal contributions claimed as a tax deduction. For the 2013-14 income tax year the taxpayer's concessional contributions cap is $35,000 if they are over 59 years of age on 30 June 2013.