Private ruling: Deduction for personal superannuation contributions
Published: May 2012
Ruling period: Year ended 30 June 2010
Date scheme commenced: 1 July 2009

Ruling: Q1: Are you able to claim a deduction for personal superannuation contributions in the 2009-10 income year under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997)? | A1: Yes.

Relevant facts and circumstances: Your date of birth is before 1950. You made a personal superannuation contribution of $X to your superannuation fund (the Fund),a complying superannuation fund, in the 2009-10 income year. You lodged your 2009-10 income tax return and your total assessable income for the 2009-10 income year was $Y which included an amount of $Z salary and wages income. Your 2009-10 notice of assessment issued in October 2010. Your 2009-10 income tax return was amended to include an increase in the gross interest amount. Your amended total assessable income was $A which included the amount of $Z (unchanged) salary and wages income. Your amended 2009-10 income tax assessment issued in January 2011. You state that due to your late spouse's health problems during that time, you did not claim a tax deduction for the $X personal superannuation contribution in your 2009-10 tax return and you wish to amend your 2009-10 income tax return to claim the deduction. You provided a copy of your notice of intent to claim a tax deduction for superannuation contributions lodged with the Fund dated in September 2010 and acknowledgement of the notice was made by the Fund administrator (dated in September 2010).

Relevant legislative provisions: Section 290-150 of the Income Tax Assessment Act 1997 | Subsection 290-150(1) of the Income Tax Assessment Act 1997 | Subsection 290-150(2) of the Income Tax Assessment Act 1997 | Subsection 290-150(3) of the Income Tax Assessment Act 1997 | Section 290-155 of the Income Tax Assessment Act 1997 | Section 290-160 of the Income Tax Assessment Act 1997 | Section 290-165 of the Income Tax Assessment Act 1997 | Section 290-170 of the Income Tax Assessment Act 1997 | Subsection 290-170(1) of the Income Tax Assessment Act 1997 | Subsection 290-170(3) of the Income Tax Assessment Act 1997 | Subsection 292-20(2) of the Income Tax (Transitional Provisions) Act 1997 | Section 12 of the Superannuation Guarantee (Administration) Act 1992 | Subsection 12(11) of the Superannuation Guarantee (Administration) Act 1992

Reasons for decision: Summary: You are eligible to claim a deduction for the personal superannuation contribution of $X in the 2009-10 income year. | Detailed Reasoning - 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,(or their dependants after their death) under section 290-150 of the Income Tax Assessment Act 1997 (ITAA 1997). However, the conditions in sections 290-155, 290-160, 290-165 and 290-170 of the ITAA 1997 must also be satisfied for the person to claim the deduction. Complying superannuation fund condition: The condition in 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. In this case, the Fund is a complying superannuation fund. Therefore, this requirement is satisfied. Maximum earnings as an employee condition: The condition in section 290-160 of the ITAA 1997 requires that if a taxpayer is engaged in any activities that result in them being treated as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA), then less than 10% of the total of the following must be attributable to those activities: · their assessable income for the income year, · their reportable fringe benefits total for the income year · the total of their reportable employer superannuation contributions for the income year Subsection 290-160(1) states: This section applies if: · in the income year in which you make the contribution, you engage in any of these activities: · holding an office or appointment; · performing functions or appointment; · engaging in work; · 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). In your case, based on the information from your amended 2009-10 income tax return, you meet the requirement of subsection 290-160(2) as your employment income ($Z) was less than 10% of your total assessable income of $A for the 2009-10 income year. Age-related conditions: Under subsection 290-165(2) of the ITAA 1997 the ability to claim a deduction ceases for contributions that are made after 28 days from the end of the month in which the person making the contribution turns 75 years of age. As you were under age 65 in the 2009-10 income year, therefore you meet this age-related condition. Notice of intent to deduct conditions: 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. The notice must be given before the earlier of: · the date you lodge your 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, you must also have been given an acknowledgement of the notice by the trustee of the superannuation fund. A notice will be valid as long as the following conditions apply: · the notice is in respect of the contributions; · the notice is not for an amount covered by a previous notice; · at the time when the notice is given: · you are a member of the fund or the holder of the retirement savings account (RSA); · the trustee or RSA provider holds the contribution (for example, a notice will not be valid if a partial roll-over of the superannuation benefit which includes the contribution covered in the notice has been made); · the trustee or RSA provider has not begun to pay a superannuation income stream based on the contribution; or · before the notice is given: · a contributions splitting application has not been made in relation to the contribution; and; · the trustee or RSA provider to which you made the application has not rejected the application. You confirm that a valid notice under section 290-170 of the Income Tax Assessment Act 1997 (ITAA 1997) was lodged with the trustee of the Fund and that the trustee has acknowledged that notice. Therefore you meet the notice requirements of section 290-170. Contribution limits and the concessional contributions cap: Concessional contributions made to superannuation funds in the 2009-10 income year are subject to an annual cap of $25,000. Concessional contributions include employer contributions (including contributions made under a salary sacrifice arrangement) and personal contributions claimed as a tax deduction by a person. However, between 1 July 2007 and 30 June 2012, a transitional concessional contributions cap will apply. The transitional concessional contributions cap is $50,000 for the 2009-2010, 2010-11 and 2011-12 income years for people aged 50 or over (subsection 292-20(2) of the Income Tax (Transitional Provisions) Act 1997) . As you were aged under 65 at the end of the 2009-10 income year, the transitional concessional contributions cap of $50,000 will apply to you in respect of the 2009-10 income year. Conclusion: On the basis of the information provided and as all of the conditions for deductibility under section 290-150 of the ITAA 1997 have been satisfied in relation to the 2009-10 income year, you are entitled to claim a deduction for the personal superannuation contributions made to the Fund in the 2009-10 income year.

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