Private ruling: Deduction for personal superannuation contributions
Published: July 2014
Ruling period: Year ended 30 June 2014
Date scheme commenced: 1 July 2013

Ruling: Q1: 1. Will the 'incapacity benefit payment' received by your client as a former Australian Defence Force member be included for the purposes of the maximum earnings as employee condition under section 290-160 of the Income Tax Assessment Act 1997 (ITAA 1997)? 2. Is your client entitled to claim a deduction under section 290-150 of the ITAA 1997? | A1: 1. No. 2. Yes. Provided all the conditions for claiming a deduction for superannuation contributions will be satisfied and the deduction does not add to, or create, a tax loss.

Relevant facts and circumstances: 1. Your client commenced employment during the late 1980s. 2. During the relevant income year, your client was medically discharged from their employment. 3. As part of your client's compensation, your client was entitled to receive a compensation benefit under an Act for their incapacity in relation to that employment. 4. Since 20XX, your client has been receiving ongoing incapacity benefit payments under the Act. 5. These benefits have been reported in your client's PAYG payment summary issued by the employer and have been included at item 1 of your client's relevant income tax returns. Although this income is ongoing, your client ceased to have an employment relationship with the employer upon their discharge during the relevant income year. 6. Your client also receives an exempted disability pension from a government department and a disability pension from a superannuation fund. 7. As part of the rehabilitation program, your client is covered under the Act, and is allowed work under 10 hours per week for which your client has been adhering to as this is monitored by your client's medical practitioners. 8. Your client conducts a business from home which involves your client independently sourcing individuals who are mainly employees of your client's former employer and who are leaving that employer's service and require certain accreditation. 9. Your client intends to make personal superannuation contributions to a complying superannuation fund (the Fund) during the 2013-14 income year. 10. Your client is under 55 years of age. Assumptions 11. You have been advised and you agree with the following assumptions being made in the Notice of Private Ruling to be issued for your client: (a) personal contributions up to the concessional contributions cap will be made to the Fund for your client in the 2013-14 income year; and (b) your client will not be engaged in employment activities in the 2013-14 income year that result in your client being treated as an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA) therefore will satisfy the maximum earnings condition in section 290-160 of the ITAA 1997; and (c) the Fund will accept your client's personal contributions in the 2013-14 income year; and (d) your client will provide a written notice to the trustee of the Fund in accordance with section 290-170 of the ITAA 1997 stating that your client intends to claim as a tax deduction in respect of the personal contributions made in the 2013-14 income year and that in providing this notice will satisfy all the requirements of section 290-170; and (e) the trustee of the Fund will provide a written notice for the 2013-14 income year under section 290-170 of the ITAA 1997 acknowledging receipt of your client's notice; and (f) the deduction for the proposed contributions will not add to or create a loss for your client for the 2013-14 income year.

Relevant legislative provisions: Income Tax Assessment Act 1997 Subsection 26-55(2). | Income Tax Assessment Act 1997 Section 290-150. | Income Tax Assessment Act 1997 Subsection 290-150(2). | Income Tax Assessment Act 1997 Section 290-155. | Income Tax Assessment Act 1997 Section 290-160. | Income Tax Assessment Act 1997 Subsection 290-160(1). | Income Tax Assessment Act 1997 Paragraph 290-160(1)(a). | Income Tax Assessment Act 1997 Paragraph 290-160(1)(b). | Income Tax Assessment Act 1997 Subsection 290-160(2). | Income Tax Assessment Act 1997 Section 290-165. | Income Tax Assessment Act 1997 Subsection 290-165(2). | Income Tax Assessment Act 1997 Section 290-170. | Income Tax Assessment Act 1997 Section 290-175. | Superannuation Guarantee (Administration) Act 1992 Subsection 6(1). | Military Rehabilitation and Compensation Act 2004 Section 118.

Reasons for decision: Summary: 12. Your client is not engaged in any activities that would result in him being treated as an employee for the purposes of the Superannuation Guarantee legislation. Therefore, the maximum earnings as employee condition will not apply. 13. Based on the information supplied, your client is eligible to claim a deduction for personal superannuation contributions to be made in the 2013-14 income year provided: (a) all the conditions for claiming the deductions will be satisfied; and (b) the deduction for the contributions for those income years do not add to or create a loss. | Detailed Reasoning - Personal superannuation contributions: 14. A person can claim a deduction for personal contributions made to a superannuation fund for the purpose of providing superannuation benefits for themselves under section 290-150 of the ITAA 1997. 15. 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. 16. These conditions are explained in detail in Taxation Ruling TR 2010/1 titled 'Income Tax: superannuation contributions' . | Detailed Reasoning - Complying superannuation fund condition: 17. 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 you made the contribution. 18. In this instance your client proposes to make personal contributions to a complying superannuation fund. Therefore, your client will satisfy this condition. | Detailed Reasoning - Maximum earnings as an employee condition - '10% test': 19. Subsection 290-160(1) of the ITAA 1997 operates to apply the maximum earnings as an employee condition only if, in the income year in which the contribution is made, the person is engaged in any of the following activities (paragraph 290-160(1)(a)): _ holding an office or appointment (for example, a director of a company); _ performing functions or duties; _ engaging in work; _ doing acts or things; and the activities result in that person being treated as an employee for the purposes of the SGAA. 20. For those persons who are engaged in any 'employment' activities, subsection 290-160(2) of the ITAA 1997 prescribes that a deduction for personal contributions can only be claimed where the sum of their: _ assessable income; _ reportable fringe benefits total; and _ reportable employer superannuation contributions; attributable to the 'employment' activities is less than 10% of the total of that person's assessable income, reportable fringe benefits total and reportable employer superannuation contributions. The term 'reportable employer superannuation contributions' includes salary sacrifice contributions made for the person's benefit in that income year. This calculation is referred to as the 'maximum earnings test'. 21. In TR 2010/1, the Commissioner discusses the operation of the maximum earnings as employee condition. In paragraph 58 of TR 2010/1 the Commissioner states that those persons who have not engaged in an 'employment' activity in the income year in which they make a contribution are not subject to the maximum earnings test. | Detailed Reasoning - The maximum earnings as an employee condition does not apply to your client: 22. The employment activity condition outlined in subsection 290-160(1) of the ITAA 1997 has two parts. To satisfy this condition, therefore, a taxpayer must both: _ engage in any of the employment activities specified in paragraph 290-160(1)(a) of the ITAA 1997, and _ as a result, be treated as an employee for the purposes of the SGAA (paragraph 290-160(1)(b) of the ITAA 1997). 23. At this point it should be noted that persons who, although receiving workers' compensation payments, are not actually employed at any time during the year, are not subject to the maximum earnings test (paragraph 58 of TR 2010/1). 24. 'Ordinary Times Earnings', which is used to determine eligible income for the purposes of the SGAA, is defined under subsection 6(1) of the SGAA as meaning: (a) the total of: (i) earnings in respect of ordinary hours of work other than earnings consisting of a lump sum payment of any of the following kinds made to the employee on the termination of his or her employment: (A) a payment in lieu of unused sick leave; (B) a payment in lieu of unused annual leave within the meaning of subsection 26AC(1) of the Income Tax Assessment Act 1936 ; (C) a payment in lieu of unused long service leave within the meaning of subsection 26AD(1) of the Income Tax Assessment Act 1936 ; and (ii) earnings consisting of over award payments, shift loading or commission; or (b) if the total ascertained in accordance with paragraph (a) would be greater than the maximum contribution base for the contribution period the maximum contribution base'. 25. Paragraphs 76 of Superannuation Guarantee Ruling SGR 2009/2 deal with workers' compensation payments made by or on behalf of an employer to an employee who is not required to attend work due to incapacity, or whose employment has been terminated, are not salary or wages. 26. Paragraphs 271 to 273 of SGR 2009/2 also deal with workers' compensation and other payments made on behalf of an employer and state: 271 Workers' compensation payments, including top-up payments, received by an injured employee where the employee performs work or is required to attend work is considered 'salary or wages'. This is despite the fact the workers' compensation may be paid by another party such as an insurance company rather than the employer. 272 Under subsection 6(3), payments of salary or wages to an employee can be made by another party on behalf of the employer. The payment is also considered 'salary or wages' if an employee is directed by the employer to perform services for another party, or is only required to attend a workplace. 273 However, workers' compensation payments, including top-up payments received by an injured employee who does not work or is not required to attend work due to incapacity to work, are not considered 'salary or wages'. In these cases the payments are to be categorised as compensation for loss of work rather than 'salary or wages'. 27. Based on the facts provided, your client was medically discharged from the employer during the relevant income year. Your client continues to receive incapacity benefit payments under an Act. 28. Whilst the incapacity benefit payments are not workers' compensation payments, like workers' compensation payments they are not paid for the performance of work. They are paid to compensate the person's injuries for the loss of work. Therefore they would not be earnings in respect of ordinary hours of work. Consequently, an employer would not be required to provide superannuation guarantee support on these payments. 29. Further, although the payments are being made by the former employer, your client was not engaged in activities as an employee for that employer as your client had ceased employment with the employer during the relevant income year. Therefore, your client will not be considered as an employee during the 2013-14 income year for the purposes of the SGAA. 30. You advised that your client conducts their own business providing certain services to another entity. However, your client has no employment or contractual relationship with that entity. Therefore, income earned or to be earned from your client's business activities with the entity will not be considered as salary and wages. In this instance, your client is not required to meet the maximum earnings as an employee condition for the income earnt from your client's business. 31. From the above finding, it is accepted that your client has not earned any eligible income for the purposes of the SGAA for the 2013-14 income year. Additionally, no other person was obligated to make contributions to a superannuation fund for the benefit of your client. 32. Consequently, the maximum earnings as an employee test under section 290-160 of the ITAA 1997 will not apply to your client for the 2013-14 income year. | Detailed Reasoning - Age-related conditions: 33. 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. 34. As your client will be under age 55 during the income year in which your client has made or intends to make the contributions to the Fund, your client will satisfy the age-related conditions. | Detailed Reasoning - Notice of intent to deduct conditions: 35. Section 290-170 of the ITAA 1997 provides that your client must give to the trustee of the complying superannuation fund (the fund trustee) a valid notice, in the approved form, of your client's intention to claim a deduction in respect of the contribution, and your client must also have been given an acknowledgment of receipt of the notice by the fund trustee. 36. Section 290-170 of the ITAA 1997 also provides that your client must give the notice to the fund trustee by the earlier of the date of your client's income tax return being lodged or the end of the income year following the year in which the contribution was made. 37. In addition, the fund trustee is required to acknowledge your client's notice without delay. 38. A notice will be valid as long as the following conditions are satisfied: _ the notice is in respect of the contribution; _ the notice is not for an amount covered by a previous notice; _ at the time when the notice is given: • your client is a member of the fund; • the fund trustee 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 fund trustee 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 fund trustee has not rejected the application. 39. You have advised that a valid notice will be lodged with the trustee of the relevant superannuation fund trustee advising your client's intention to claim a deduction in respect of the personal contributions to be made in the 2013-14 income year. You have also advised that your client will receive written notices from the trustee acknowledging receipt of your client's notice of intent in respect of the contributions. You assert that your client has or will meet the requirements of section 290-170 of ITAA 1997. 40. The notice of intent to deduct conditions under section 290-170 of the ITAA 1997 will be satisfied for the 2013-14 income year provided your client lodges a valid notice of intent with the fund trustee before the earlier of: (a) your client's income tax return for the 2013-14 income year is lodged; or (b) 30 June 2015; and the trustee duly acknowledges your client's notice. | Detailed Reasoning - Deduction limited by amount specified in notice: 41. Section 290-175 of the ITAA 1997 states that the deduction cannot be more than the amount covered by the notice given under section 290-170 of the ITAA 1997. 42. Provided the amount of the deduction your client will claim does not exceed the amount specified in your client's section 290-170 notice, your client will also satisfy this requirement. | Detailed Reasoning - Deduction limits: 43. As noted in your application, the allowable deduction is limited under subsection 26-55(2) of the ITAA 1997 to the amount of assessable income remaining after subtracting all other deductions (excluding previous years' tax losses and any deductions for farm management losses) from a taxpayer's assessable income. 44. Therefore a deduction for personal superannuation contributions cannot add to or create a loss. 45. You have advised that your client's deduction for the contributions will not add to or create a loss for the 2013-14 income year. Therefore it is accepted that this requirement will be satisfied. | Detailed Reasoning - Contribution limits: 46. The concessional contributions cap is $25,000 for the 2013-14 income year. Concessional contributions include employer contributions (including contributions made under a salary sacrifice arrangement) and personal contributions claimed as a tax deduction by a person. | Detailed Reasoning - Conclusion: 47. As you state that your client will satisfy the required conditions in sections 290-155, 290-165 and 290-170 of the ITAA 1997 and was not required to satisfy section 290-160, your client will be entitled to claim a deduction of up to the concessional contributions cap of $25,000 for concessional superannuation contributions made in the income year provided the deduction does not add to, or create, a tax loss in that income year.