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Edited version of private advice
Authorisation Number: 1012676786608
Ruling
Subject: Deduction for personal superannuation contributions
Question 1
Is your Client entitled to claim a deduction for personal superannuation contributions in the 2009-10 income year where no notice of intent to deduct under section 290-170 of the Income Tax Assessment Act 1997 (ITAA 1997) has been lodged with the relevant superannuation fund trustee?
Answer
No
Question 2
Will the Commissioner extend the time in which your client can lodge his notice of intent to deduct under section 290-170 of the ITAA 1997?
Answer
No
This ruling applies for the following period:
The year ended 30 June 2010
The scheme commences on:
1 July 2009
Relevant facts and circumstances
Your client has been ill for many years.
You advised your client to make a tax deductible contribution to their superannuation fund (the Fund) before the end of the 2009-10 income year.
Your client met with their financial adviser to organise a payment to the Fund at the end of the 2009-10 income year.
The Fund has advised you that a letter (the Letter) was sent to your client during the 2010-11 income year outlining the requirement to fill out a notice of intent to claim a tax deduction.
You state the Letter was the only correspondence from the Fund in relation to the notice and that your client does not recall receiving the Letter.
Your client did not lodge a notice of intent to deduct to Fund for the 2009-10 income year.
During the 2013-14 income year you became aware that a notice of intent to deduct was not lodged by your client in relation to the contributions they made to the Fund in the 2009-10 income year.
Due to the circumstances surrounding your client's health and the financial advice they were provided, you contend that your client should be allowed to claim a deduction for the superannuation contribution.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subdivision 290-C
Income Tax Assessment Act 1997 Section 290-170.
Income Tax Assessment Act 1997 Subsection 290-170(1).
Income Tax Assessment Act 1997 Paragraph 290-170(1)(a).
Income Tax Assessment Act 1997 Paragraph 290-170(1)(b).
Income Tax Assessment Act 1997 Subparagraph 290-170(1)(b)(i).
Income Tax Assessment Act 1997 Subparagraph 290-170(1)(b)(ii).
Income Tax Assessment Act 1997 Paragraph 290-170(1)(c).
Summary
Your client is not able to claim a deduction for personal contributions made in the 2009-10 income year as a notice of intent to deduct was not lodged with the relevant superannuation fund trustee within the time given under section 290-170 of the ITAA 1997.
Further, it should be noted that there is no provision under section 290-170 of the ITAA 1997 for the Commissioner to extend the time in which your client can lodge a notice of intent to deduct.
Reasons for decision
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 a deduction for their superannuation contributions (the notice) to the trustee of their superannuation fund.
The 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 (sub paragraph 290-170(1)(b)(i)); or
• the end of the income year following the year in which the contribution was made (sub paragraph 290-170(1)(b)(ii)).
In addition, you must also have been given an acknowledgement of the notice by the trustee of the superannuation fund (paragraph 290-170(1)(b))
Accordingly, the notice of intent to deduct conditions are satisfied if, within the timeframes specified above, the trustee of the superannuation fund was provided the required notice of intent to deduct and the trustee of the superannuation fund acknowledged that notice.
The facts show that in relation to the 2009-10 income year, your client did not receive a notice of intent to deduct form from the Fund. Further, you only became aware during the 2013-14 income year that no notice of intent to deduct had been lodged by your client.
Consequently, your client did not lodge a notice of intent to deduct to the trustee of the Fund for the contribution made in the 2009-10 income year.
Whilst it is noted that your client has been ill for many years, it should be noted that there are no provisions under section under section 290-170 of the ITAA 1997, or elsewhere in Subdivision 290-C, to grant an extension of time for a person to lodge a valid notice of intent.
Accordingly, your client is unable to claim a deduction for the superannuation contribution that they made in the 2009-10 income year as a valid notice of intent to deduct was not provided to the trustee of the Fund within the given time under section 290-170 of the ITAA 1997.