Edited version of private advice

Authorisation Number: 1051603342099

Date of advice: 15 November 2019

Ruling

Subject: Claiming a tax deduction for personal superannuation contributions made to a complying superannuation fund

Question

Can you claim a tax deduction under Subdivision 290-C of the Income Tax Assessment Act 1997 (ITAA 1997) for personal superannuation contributions made to a complying superannuation fund for the 2017-18 income year?

Answer

No.

This ruling applies for the following period:

Income year ending 30 June 2018

This scheme commenced on:

1 July 2017

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

1.       You are aged between 18 years of age and 75 years of age.

2.       We received a private ruling application from your authorised tax agent regarding your eligibility to claim a tax deduction for personal superannuation contributions made to a complying superannuation fund for the 2017-18 income year.

3.       In the private ruling application, we were advised that:

·        You made personal superannuation contributions to a complying superannuation fund for the 2017-18 income year.

·        You sent a notice of intent to your complying superannuation fund which was received in June 2019.

·        Your notice of intent was not accepted by your complying superannuation fund as it incorrectly documented your date of birth and included your superannuation guarantee contributions.

·        Your complying superannuation fund sent correspondence to you about your notice of intent and requested it to be adjusted and returned before 30 June 2019. This correspondence was not sent to your financial advisor.

·        An email was sent to your complying superannuation fund in July 2019 which contained your adjusted notice of intent.

·        You should be allowed to claim a tax deduction in your income tax return for the personal superannuation contributions made to your complying superannuation fund for the 2017-18 income year, even though you did not receive acknowledgement of your notice of intent due to an error that caused you to miss the deadline.

4.       We also received a copy of correspondence addressed to your financial advisor from your complying superannuation fund regarding the complaint he lodged about the correspondence you received about your notice of intent. The correspondence advised that:

·        Your notice of intent was received in June 2019.

·        Your notice of intent indicated that a tax deduction would be claimed by you for the whole amount which included your personal superannuation contributions for the 2017-18 income year as well as your superannuation guarantee contributions.

·        A review of your account revealed the total of your personal superannuation contributions for the 2017-18 income year and confirmed that the additional amount included in your notice of intent related to your superannuation guarantee contributions which could not be claimed as a tax deduction. Your notice of intent could therefore not be accepted.

·        Correspondence was issued to you about your notice of intent. However, it was not sent to your financial advisor.

·        An adjusted notice of intent was received. However, it was signed and dated in July 2019 which was after the 30 June 2019 deadline. Your notice of intent could therefore not be actioned.

5.       In a telephone conversation between a tax officer from the Australian Taxation Office (ATO) and your authorised tax agent, we discussed the operation of Subdivision 290-C of the ITAA 1997. We also confirmed with your authorised tax agent that general guidance should be provided on the operation of Subdivision 290-C of the ITAA 1997.

6.       In an email sent from a tax officer from the ATO addressed to your authorised tax agent, we provided general guidance on the operation of Subdivision 290-C of the ITAA 1997.

7.       In a telephone conversation between a tax officer from the ATO and your authorised tax agent, we confirmed that you still required a private ruling on your eligibility to claim a tax deduction for personal superannuation contributions made to a complying superannuation fund for the 2017-18 income year. We indicated that we may require further supporting documentation to action your private ruling application.

8.       In a telephone conversation between a tax officer from the ATO and your authorised tax agent, we requested a copy of your member statement from your complying superannuation fund for the 2017-18 income year and, if possible, confirmation of the date that you became a member.

9.       During the telephone conversation, we confirmed that your personal superannuation contributions made to your complying superannuation fund for the 2017-18 income year were not:

·        Attributable (in whole or in part) to a capital gain from certain capital gains tax events

·        A downsizer contribution

·        A re-contribution under the First Home Super Saver Scheme

·        Included in a previous notice of intent sent to your complying superannuation fund.

10.    During the telephone conversation, we also confirmed that:

·        Your complying superannuation fund still holds the personal superannuation contributions

·        You have not commenced a superannuation income stream from the personal superannuation contributions

·        You have not lodged a contributions-splitting application with your complying superannuation fund.

11.    In an email sent from your authorised tax agent addressed to a tax officer from the ATO, we received a copy of your member statement from your complying superannuation fund for the 2017-18 income year which confirmed that you made personal superannuation contributions during that income year.

12.    In a telephone conversation between a tax officer from the ATO and your authorised tax agent, we advised that we were still actioning your private ruling application.

13.    Your income tax records held by the ATO.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subdivision 290-C

Reasons for decision

The reasons for decision accompany the notice of private ruling. While these reasons are not part of the private ruling, we provide them to help you understand how we reached our decision.

Summary

You are not eligible to claim a tax deduction under Subdivision 290-C of the ITAA 1997 for personal superannuation contributions made to your complying superannuation fund for the 2017-18 income year.

Detailed reasoning

Deducting personal superannuation contributions

Subdivision 290-C of the ITAA 1997

A tax deduction can be claimed by a person for personal superannuation contributions made to a superannuation fund for the purpose of providing superannuation benefits for themselves under subsection 290-150(1) of the ITAA 1997. However, subsection 290-150(2) of the ITAA 1997 requires the conditions in sections 290-155, 290-165, 290-167, 290-168 and 290-170 of the ITAA 1997 to also be satisfied before a person can claim a tax deduction.

Subsection 290-150(3) of the ITAA 1997 confirms that a tax deduction can only be claimed for the income year in which the personal superannuation contributions were made to the superannuation fund. The amount that can be claimed as a tax deduction is limited in some situations under subsection 290-150(4) of the ITAA 1997 where the personal superannuation contributions made to the superannuation fund were attributable (in whole or in part) to a capital gain from certain capital gain tax events.

Complying superannuation fund condition

Section 290-155 of the ITAA 1997 requires the personal superannuation contributions to be made to a superannuation fund that was a complying superannuation fund for the income year in which the personal superannuation contributions were made.

The complying superannuation fund must not be:

·        a Commonwealth public sector superannuation scheme in which the person has a defined benefit interest

·        a superannuation fund that would not include the contributions in its assessable income under section 295-190 of the ITAA 1997 (disregarding the operation of Subdivision 295-D of the ITAA 1997)

·        a superannuation fund of the kind prescribed in the regulations.

The personal superannuation contributions must also not be contributions of the kind prescribed in the regulations which have been made to a superannuation fund of the kind prescribed in the regulations. A list of the superannuation funds and the kinds of contributions made to them may be published by the Commissioner.

Age-related condition

Subsection 290-165(1) of the ITAA 1997 requires any personal superannuation contributions made by a person who is under 18 years of age at the end of a particular income year to be derived from income that is:

·        from carrying on a business

·        attributable to activities, or circumstances, that result in the person being treated as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (assuming that subsection 12(11) of the Superannuation Guarantee (Administration) Act 1992 had not been enacted).

In any other case, subsection 290-165(2) of the ITAA 1997 requires the personal superannuation contributions to be made on or before the day that is 28 days after the end of the month in which the person turns 75 years of age.

Contribution must not be a downsizer contribution condition

Section 290-167 of the ITAA 1997 requires the personal superannuation contributions to not be downsizer contributions covered by section 292-102 of the ITAA 1997.

Contribution must not be a re-contribution under the First Home Super Saver Scheme condition

Section 290-168 of the ITAA 1997 requires the personal superannuation contributions to not be contributions the person has notified the Commissioner about under section 313-50 of the ITAA 1997.

Notice of intent conditions

Subsection 290-170(1) of the ITAA 1997 requires a person to give their superannuation fund a valid notice of intent in the approved form.

The valid notice of intent must be given before:

·        if the person has already lodged their income tax return for the income year in which the personal superannuation contributions were made, on a day before the end of the next income year - the end of that day

·        otherwise, at the end of the next income year.

A person must also receive acknowledgement of their notice of intent from their superannuation fund.

Subsection 290-170(2) of the ITAA 1997 states that a notice of intent will not be considered valid if it:

·        is not in respect of the personal superannuation contributions

·        includes all or part of an amount that has been covered by a previous notice of intent

·        was given when:

-        the person was not a member of their superannuation fund

-        their superannuation fund no longer holds the personal superannuation contributions

-        their superannuation fund has begun to pay a superannuation income stream based in whole or in part on the personal superannuation contributions

·        was given before the person made a contributions-splitting application (within the meaning given by the regulations) in relation to the personal superannuation contributions that was not rejected by their superannuation fund.

A notice of intent will also not be considered valid if the personal superannuation contributions were made to a superannuation fund that was not a complying superannuation fund as required by section 290-155 of the ITAA 1997.

Subsection 290-170(3) of the ITAA 1997 confirms that a superannuation fund must acknowledge a valid notice of intent without delay. However, subsection 290-170(4) of the ITAA 1997 states that a superannuation fund can refuse to acknowledge a valid notice of intent if the value of the superannuation interest to which the notice relates, at the end of the day on which the superannuation fund receives the notice, is less than the tax that would be payable in respect of the personal superannuation contributions (or part of the personal superannuation contributions) if the superannuation fund was to acknowledge the notice.

The application of subsections 290-170(1), 290-170(2), 290-170(3), 290-170(4) and section 290-180 of the ITAA 1997 to successor funds is contained within subsection 290-170(5) of the ITAA 1997.

Deduction limit and notice of intent variations

Section 290-175 of the ITAA 1997 states that a person cannot claim a tax deduction for more than the amount stated in their valid notice of intent.

Subsections 290-180(1), 290-180(2), 290-180(3), 290-180(3A) and 290-180(4) of the ITAA 1997 explain the conditions that must be satisfied in order to vary a valid notice of intent. The application of subsections 290-180(2) and 290-180(3A) of the ITAA 1997 to successor funds is contained within subsection 290-180(5) of the ITAA 1997.

Application to your circumstances

You are aged between 18 years of age and 75 years of age.

We received a private ruling application from your authorised tax agent regarding your eligibility to claim a tax deduction for personal superannuation contributions made to a complying superannuation fund for the 2017-18 income year.

In the private ruling application, we were advised that:

·        You made personal superannuation contributions to your complying superannuation fund for the 2017-18 income year.

In a telephone conversation between a tax officer from the ATO and your authorised tax agent, we confirmed that the personal superannuation contributions made to your complying superannuation fund for the 2017-18 income year were not:

·        Attributable (in whole or in part) to a capital gain from certain capital gains tax events

·        A downsizer contribution

·        A re-contribution under the First Home Super Saver Scheme.

In an email sent from your authorised tax agent addressed to a tax officer from the ATO, we received a copy of your member statement from your complying superannuation fund for the 2017-18 income year which confirmed that you made personal superannuation contributions during that income year.

You meet the conditions for deducting personal superannuation contributions under sections 290-155, 290-165, 290-167 and 290-168 of the ITAA 1997.

However, in the private ruling application, we were advised that:

·        You sent a notice of intent to your complying superannuation fund which was received in June 2019.

·        Your notice of intent was not accepted by your complying superannuation fund as it incorrectly documented your date of birth and included your superannuation guarantee contributions.

·        Your complying superannuation fund sent correspondence to you about your notice of intent and requested it to be adjusted and returned before 30 June 2019. This correspondence was not sent to your financial advisor.

·        An email was sent to your complying superannuation fund in July 2019 which contained your adjusted notice of intent.

You do not meet the conditions for deducting personal superannuation contributions under section 290-170 of the ITAA 1997 as:

·        a valid notice of intent was not received by your complying superannuation fund before the end of the 2018-19 income year

·        you did not receive acknowledgement of your notice of intent from your complying superannuation fund.

As you have not met all of the conditions required under Subdivision 290-C of the ITAA 1997, you are not eligible to claim a tax deduction for the personal superannuation contributions you made to your complying superannuation fund for the 2017-18 income year.