ATO Interpretative Decision
ATO ID 2008/17 (Withdrawn)
Superannuation
Release authority: excess concessional contributions taxFOI status: may be released
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This ATO ID is withdrawn from the database as section 292-415 of the Income Tax Assessment Act 1997 has been repealed with effect from 1 July 2018. The ATO view expressed in this ATO ID is now contained in a straight application of the law in Division 131 of Schedule 1 to the Taxation Administration Act 1953. Guidance on the issue contained in this ATO ID can be found at Release authorities. (QC 20076)This document has changed over time. View its history.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is the trustee of a superannuation fund required to release money under section 292-415 of the Income Tax Assessment Act 1997 (ITAA 1997) where the trustee has been given a release authority for excess concessional contributions tax more than 90 days after the date of the release authority?
Decision
No. The trustee is not required to release money under section 292-415 of the ITAA 1997 where the 90 day period has elapsed. Furthermore, unless a condition of release has been met, the trustee is not permitted to release money.
Facts
The member received an excess contributions tax assessment for the excess concessional contributions from the Commissioner of Taxation.
The Commissioner issued to the member a release authority for excess concessional contributions tax.
The member gave the release authority to the trustee of their accumulation superannuation fund after a period of 90 days from the date of the release authority.
Reasons for Decision
When a member of a superannuation fund receives an excess contributions tax assessment for excess concessional contributions tax, they will also receive a release authority from the Commissioner under section 292-405 of the ITAA 1997. In accordance with section 292-410 of the ITAA 1997, the member may, within 90 days after the date of the release authority, give the release authority to a superannuation provider that holds an accumulation interest for the member.
Where the member gives the release authority to the superannuation provider, section 292-415 of the ITAA 1997 requires the provider to pay to the member (or to the Commissioner, where appropriate) the relevant amount within 30 days after receiving the release authority. If payment is not made within that time, the provider is subject to a penalty under subsection 288-95(1) of Schedule 1 to the Taxation Administration Act 1953.
However, where the member gives the release authority to the trustee more than 90 days after the date of the release authority, the member has not given the release authority in accordance with section 292-410 of the ITAA 1997. Therefore section 292-415 of the ITAA 1997 does not apply and the trustee is not required to release money.
This decision is consistent with the discussion in paragraph 1.132 of the Explanatory Memorandum to the Tax Laws Amendment (Simplified Superannuation) Bill 2006:
A release authority for excess concessional contributions will expire after 90 days. The time limit on providing release authorities for excess concessional contributions tax is necessary to maintain the integrity of the superannuation preservation rules.
Item 112 of Part 1 in Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994 prescribes that a condition of release is met where 'a person gives a release authority to a superannuation provider under subsection 292-410(1) of the Income Tax Assessment Act 1997'. In the case at hand, the member did not give the release authority in accordance with that subsection because the release authority was given after 90 days after the date of the release authority. Consequently, unless another condition of release is satisfied, the trustee is not permitted to release money.
Date of decision: 11 January 2008Year of income: 30 June 2008
Legislative References:
Income Tax Assessment Act 1997
section 292-405
section 292-410
section 292-415
Schedule 1, subsection 288-95(1) Superannuation Industry (Supervision) Regulations 1994
Schedule 1, Part 1 - Regulated Superannuation Funds Related ATO Interpretative Decisions
ATO ID 2008/18
Other References:
Explanatory Memorandum to the Tax Laws Amendment (Simplified Superannuation) Bill 2006 - paragraph 1.132
Keywords
Excess concessional contributions
Release authorities -superannuation excess contributions tax
SIS payment standards - conditions of release
Superannuation excess contributions tax
Date reviewed: 23 July 2014
ISSN: 1445-2782
| Date: | Version: | |
| 11 January 2008 | Original statement | |
| You are here | 7 June 2019 | Archived |