Private ruling: Conditions for deducting personal superannuation contributions
Published: December 2013
Ruling period: Income year ended 30 June 2012
Date scheme commenced: During the income year ended 30 June 2012

Ruling: Q1: Can the Commissioner of Taxation (the Commissioner) exercise discretion to extend the time by which a valid notice under subsection 290-170 of the Income Tax Assessment Act 1997 (ITAA 1997) must be given to the trustee of the fund? | A1: No

Relevant facts and circumstances: In the 2011-12 income year, the Taxpayer made a personal contribution to a superannuation fund (the Fund) with the intent to claim a deduction for those contributions. At the time the contributions were made, the Taxpayer did not know that to claim a deduction for the contributions a valid notice had to be given to the trustee of the Fund within the time specified in subsection 290-170(1) of the ITAA 1997. Although, at the time, the Taxpayer's tax affairs were dealt by a tax agent, the agent did not advise the Taxpayer about the notice requirements nor did the agent complete the notice on behalf of the Taxpayer. Subsequently, the Taxpayer engaged another tax agent (the New Agent) to prepare their 2011-12 income tax return. The Taxpayer's New Agent had a difficulty obtaining the Taxpayer's tax documents from the Taxpayer's previous tax agent and they did not receive the relevant documents until 2013-14 income year when it was discovered that the Fund did not receive a valid notice of intent to deduct personal contributions made in 2011-12 income year. The Taxpayer has not lodged their 2011-12 income tax return.

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 290-160 | Income Tax Assessment Act 1997 Section 290-165 | Income Tax Assessment Act 1997 Section 290-170 | Income Tax Assessment Act 1997 Subsection 290-170(1)

Reasons for decision: Summary: In accordance with section 290-150 of the ITAA 1997, a person who makes contributions to a superannuation fund for the purpose of providing superannuation benefits for themselves, can claim the deduction for contributions in the income year the contributions are made. However, to deduct the contributions, the person must satisfy a number of conditions, including the giving of a valid notice of intent to deduct to the trustee of the fund in accordance with section 290-170 of the ITAA 1997. Subsection 290-170(1) of the ITAA 1997 sets out the conditions that must be satisfied with regard to a notice of intent to deduct contributions and states specifically: … b) the notice must be given before: 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 … There are no provisions in the ITAA 1997 that allow the Commissioner to vary the date by which a valid notice for the purposes of section 290-170 of the ITAA 1997 may be given to the trustee of a fund. In this case, the Taxpayer has not lodged their income tax return for the 2011-12 income year, therefore, based on the above, the Taxpayer was required to give a valid notice of intent to deduct contributions to the trustee of the Fund before the end of 2012-13 income year and no later. That is, the Commissioner cannot exercise discretion to vary/extend the date by which the Taxpayer can give a notice of intent to deduct contributions to the trustee of the Fund.