Edited version of your written advice

Authorisation Number: 1013074842691

Date of advice: 30 August 2016

Ruling

Subject: Personal deductible contributions

Question

Is an amount paid to your client under an income protection insurance policy included in the maximum earnings as an employee condition when assessing their eligibility to deduct personal superannuation contributions?

Answer

No.

This ruling applies for the following periods:

Income year ended 30 June 20YY

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

Your client was employed in the 20WW-XX income year. Your client ceased this employment in the first quarter of 20XX.

In the 20XX-YY income year, your client will be self-employed.

In the 20XX-YY income year, your client is in receipt of an income protection disablement benefit. The policy payment is made monthly in arrears on production of medical certification. The first payment was in the last quarter of 20VV.

You advise that the income protection payments are not received by your client as a result of an injury or illness sustained while holding employment.

You advise that for the 20XX-YY income year, your client will not be engaged in any of the following activities which would result in your client being treated as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA 1992):

• holding an office or appointment;

• performing functions or duties;

• engaging in work;

• doing acts or things.

All other income to be derived by your client in the 20XX-YY income year will be derived from sources other than as an employee for the purposes of the SGAA 1992.

Your client proposes to make a personal superannuation contribution to a complying superannuation fund, in the 20XX-YY income year.

Your client will lodge a valid notice with the trustee of the superannuation fund and expects to receive acknowledgment before the earlier of the date of lodgment of the 20XX-YY tax return, or the end of the 20YY-ZZ income year.

Your client in under 75 years of age.

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 subsection 290-160(1)

Income Tax Assessment Act 1997 subsection 290-160(2)

Income Tax Assessment Act 1997 section 290-165

Income Tax Assessment Act 1997 section 290-170

Reasons for decision

Summary

Your client will not be subject to the maximum earnings test under section 290-160 of the ITAA 1997 because your client was not engaged in any employment activities during the 20XX-YY income year.

However, the conditions in section 290-170 of the ITAA 1997 must also be satisfied for your client to claim a deduction for contributions made to a complying superannuation fund.

Detailed reasoning

Personal deductible superannuation contributions

A person 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 ITAA 1997. However, the conditions in sections 290-155, 290-160 (if applicable), 290-165 and 290-170 of the ITAA 1997 must also be satisfied for the person to claim the deduction.

In this case, the main issue is whether the maximum earnings as an employee condition is satisfied under section 290-160 of the ITAA 1997.

Maximum earnings as an employee condition

Subsection 290-160(1) of the ITAA 1997 states:

This section applies if:

(a) in the income year in which you make the contribution, you engage in any of these activities:

(i) holding an office or appointment;

(ii) performing functions or duties;

(iii) engaging in work;

(iv) doing acts or things; and

(b) the activities result in you being treated as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (assuming that subsection 12(11) of that Act had not been enacted).

For those persons who fall under the requirements outlined above, subsection 290-160(2) of the ITAA 1997 prescribes that a deduction for personal contributions can only be claimed where the sum of their:

• assessable income

• reportable fringe benefits total and

• reportable employer superannuation contributions

attributable to the employment activities is less than 10% of the total of that person's assessable income, reportable fringe benefits total and reportable employer superannuation contributions. This calculation is referred to as the maximum earnings test.

The operation of the maximum earnings test is discussed in Taxation Ruling TR 2010/1 Income tax: superannuation contributions. Relevantly, paragraphs 58 and 59 state that:

58. 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. [emphasis added]

59. A person will be engaged in an 'employment' activity if they are engaged in an activity in the income year that results in them being treated as an employee for the purposes of the SGAA. The term 'engaged' is not defined and takes its ordinary meaning. One of several meanings given to engaged is 'busy or occupied; involved'. Another meaning is 'under an engagement' where the ordinary meaning of 'engagement' is given as 'under an obligation or agreement'

As reiterated in paragraph 58 of TR2010/1, where a person is not employed at any time during the year, they are not subject to the maximum earnings test.

You have advised that your client will not be engaged in any activities in the 20XX-YY income year that would result in them being treated as an employee for the purposes of the SGAA 1992.

Further, whilst your client was in receipt of income protection payments in the 20XX-YY income year, these payments were made to compensate your client for a disability. An income protection payment is not made in connection with an employee attending work or working during their ordinary hours of work. The employee is not remunerated for their labour or services. Your client did not, and will not, physically carry out any obligations or duties of a job or work with respect to the income protection payments and therefore is not engaged in employment activities.

Accordingly, as your client will not engage in work or other employment activities that would result in them being treated as an employee for the purposes of the SGAA 1992 they will not be subject to the maximum earning test under section 290-160 of the ITAA 1997.

Age-related conditions

Section 290-165 of the ITAA 1997 requires a taxpayer (over the age of 18) to have made the contribution before the day that is 28 days after the end of the month in which they turn 75 years of age.

Your client satisfies the age-related conditions in the relevant income year in which the contribution will be made.

Notice of intent to deduct conditions

Whilst your client will not be subject to the maximum earning test under section 290-160 of the ITAA 1997 and has satisfied the age-related requirement of section 290-165 of the ITAA 1997, the conditions in sections 290-155 and section 290-170 of the ITAA 1997 must also be satisfied for your client to claim a deduction in the 20XX-YY income year.

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 of the fund in which the contribution is made. It is noted that the superannuation fund your client intends to make the contribution will meet this condition.

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 they lodge their 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, they must also receive an acknowledgement of the notice by the trustee of the superannuation fund.