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Edited version of your written advice
Authorisation Number: 1051453500810
Date of advice: 19 November 2018
Ruling
Subject: Deductibility of personal superannuation contributions
Question
Can you claim a deduction for a contribution made to a superannuation fund in the 2016-17 income year under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997), where a Notice of intent to claim a deduction (Notice of Intent) was made outside the timeframes specified in subsection 290-170(1) of the ITAA 1997?
Answer
No
This ruling applies for the following period:
Income year ended 30 June 2017
The scheme commences on:
1 July 2016
Relevant facts and circumstances
You made a contribution to your superannuation fund (the Fund) during the 2016-17 financial year.
You posted a Notice of Intent to the Fund.
Several months after posting the Notice of Intent, you lodged your individual income tax return for the 2016-17 income year.
While finalising an amendment to your income tax return for the 2016-17 income year, you requested the Acknowledge Notice issued by the Fund from both your broker and the Fund.
A second Notice of Intent was submitted to the Fund by your broker.
Subsequently, your broker informed you that the Fund had not received the Notice of Intent that you originally submitted. Consequently, the Fund has advised that will not issue an Acknowledgement Notice because they did not receive the Notice of Intent within the required time frame.
You have stated that you satisfy all the other eligibility criteria to claim a deduction on your personal superannuation contribution, those being:
n Complying superannuation fund;
n Maximum earnings as an employee; and
n Age related condition
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 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 paragraph 290-170(1)(c).
Summary
You are not able to claim a deduction in the 2016-17 income year for the Contribution you made to the Fund as no Notice of Intent was provided to the Fund within the required timeframe.
Further, it should be noted that there is no provision which enables the Commissioner to exercise his discretion to allow the deduction of a contribution where a valid notice of intent to deduct has not been provided on time.
Reasons for decision
A person can claim a deduction for personal contributions made to their superannuation fund for the purpose of providing superannuation benefits for themselves under section 290-150 of the ITAA 1997.
However, subsection 290-150(2) of the ITAA 1997 provides that the conditions in sections 290-155, 290-160 (if applicable), 290-165 and 290-170 must all be satisfied before the person can claim a deduction for the contributions made in that income year.
Notice of intent to deduct conditions
Relevantly, subsection 290-170(1) of the ITAA 1997 states that, in order to claim deduction for personal superannuation contributions, a person must provide a valid Notice of Intent to the trustee of their superannuation fund.
Pursuant to subparagraph 290-170(1)(b) of the ITAA 1997, the Notice of Intent must be provided to the trustee of the superannuation fund by the earlier of:
n The date on which you lodged your individual tax return for the income year in which the contribution was made; or
n The end of the income year following the income year in which the contribution was made.
Subparagraph 290-170(1)(c) of the ITAA 1997 states that the trustee or provider of your superannuation fund must have given you an acknowledgement of receipt of the notice.
In this instance, you posted your Notice of Intent to the Fund and lodged your income tax return for the 2016-17 income year. You became aware that the Fund had not received your Notice of Intent after you had already lodged your tax return for the 2016-17 income year. Consequently, the Fund has not issued an acknowledgement notice.
The Commissioner may exercise his discretion to extent a specified time limit only where the power to do so has been specifically provided for in the legislation. There is no section in the ITAA 1997 or the Taxation Administration Act 1953 which gives the Commissioner the discretion to allow a deduction for a superannuation contribution where the conditions have not been met.
Accordingly, as a valid Notice of Intent was not provided to the trustee of the Fund within the mandated timeframe, you are unable to claim a deduction for the Contribution made to the Fund in the 2016-17 income year.