Edited version of private advice

Authorisation Number: 5010091591387

Date of advice: 28 March 2023

Ruling

Subject: Deductibility of personal superannuation contributions

Question

Is the taxpayer entitled to claim a deduction for personal superannuation contributions made to Fund A during the 20XX-XX income year under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

No.

This ruling applies for the following period:

Year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

During the 20XX-20XX income year, taxpayer made a series of total personal super contributions totalling $XXXX to Fund A:

•         XX/0X/20XX $XXX

•         XX/0X/20XX $XXX

•         XX/0X/20XX $XXX

•         XX/0X/20XX $XXX

On X Month 20XX, an amount of $XXXX was rolled over from your client's Fund A accumulation account to Fund A pension account.

Fund A is a complying Australian Superannuation Fund.

The taxpayer has not yet lodged their tax return for the 20XX-20XX income year.

Taxpayer stated that Fund A was unable to provide an acknowledgement as they were of the opinion that no deduction is allowable. Taxpayer did not provide any evidence to show that a notice of intent to claim a deduction for personal contributions with Fund A.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 290-150

Income Tax Assessment Act 1997 Subsection 290-150(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)

Reasons for decision

Section 290-150 of the ITAA 1997 states that you can deduct a contribution you make to a superannuation fund or a retirement savings account for the purposes of providing superannuation benefits for yourself, in the income year that the contribution was made, provided all of the following conditions are satisfied:

•         the complying superannuation fund conditions under section 290-155 of the ITAA 1997;

•         age-related conditions under section 290-165 of the ITAA 1997;

•         the condition that a contribution is not a downsizer contribution under section 290-167 of ITAA 1997;

•         the condition that a contribution is not a re-contribution under first home super saver scheme under section 290-168 of the ITAA 1997;

•         the condition that a contribution is not a re-contribution of a COVID-19 early release amount under section 290-169 of the ITAA 1997;

•         the notice of intent to deduct conditions under section 290-170 of the ITAA 1997.

Section 290-170 of the ITAA 1997 relevantly states:

1)    To deduct the contribution, or a part of the contribution:

(a) you must give to the trustee of the fund or the RSA provider a valid notice, in the approved form, of your intention to claim the deduction; and

(b) the notice must be given before:

(i) if you have lodged your income tax return for the income year in which the contribution was made on a day before the end of the next income year - the end of that day; or

(ii) otherwise - the end of the next income year; and

(c) the trustee or provider must have given you an acknowledgment of receipt of the notice.

2) The notice is not valid if at least one of these conditions is satisfied:

(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;

(d) 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;

(e) if the contribution is made to a superannuation fund - the condition in section 290-155 is not satisfied in relation to the fund and the contribution.

Before you can claim a deduction for your personal super contributions, taxpayer must give your superannuation fund a notice of intent to claim a deduction for personal contributions and receive an acknowledgement from your fund.

In this taxpayer's situation, taxpayer has not provided evidence that they lodged a notice of intent with Fund A. Taxpayer stated that Fund A was unable to provide an acknowledgement as they were of the opinion that no deduction is allowable. The taxpayer failed to meet the conditions under subsection 290-170(1) of ITAA 1997, and therefore section 290-150 does not apply. As a result, taxpayer in this case cannot claim a tax deduction for superannuation contributions made in the 2021-22 income year.

The Commissioner has no discretion under the ITAA 1997 to allow a personal superannuation contribution deduction where the conditions of section 290-170 are not satisfied.