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Income Tax Assessment Act 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES

PART 3-30 - SUPERANNUATION

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Division 290 - Contributions to superannuation funds

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Subdivision 290-C - Deducting personal contributions

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Commissioner ' s Remedial Power

Note: A Commissioner ' s Remedial Power modification is relevant to this part of the tax law. Taxation Administration (Remedial Power - Work Test for Personal Superannuation Contributions) Determination 2023 (F2023L00564) modifies the operation of s 290-165(1A) of the Income Tax Assessment Act 1997 and any other provisions of a taxation law whose operation is affected by the modified operation of s 290-165(1A) .

The operation of the relevant provision is modified as follows:

For the purposes of s 370-5 in Sch 1 to the Taxation Administration Act 1953 , s 290-165(1A) of the Income Tax Assessment Act 1997 is modified to operate as if:

(a) you also meet the requirement in paragraph 290-165(1A)(a) if you worked for gain or reward as a covered person for at least 40 hours in any period of 30 consecutive days during the income year in which the contribution was made; and

(b) you also meet the requirement in subparagraph 290-165(1A)(b)(i) if you worked for gain or reward as a covered person for at least 40 hours in any period of 30 consecutive days during the income year ending before the income year in which the contribution was made.

The modification applies in relation to contributions made on or after 1 July 2022.

An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to the Taxation Administration Act 1953 to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.

Conditions for deducting a personal contribution

SECTION 290-170 Notice of intent to deduct conditions

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Deductibility of contributions

290-170(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.

Validity of notices

290-170(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;

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(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;

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(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.

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Acknowledgment of notice

290-170(3)
The trustee or provider must, without delay, give you an acknowledgment of a valid notice, subject to subsection (4).

290-170(4)

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The trustee or provider may refuse to give you an acknowledgment of receipt of a valid notice if the *value of the *superannuation interest to which the notice relates, at the end of the day on which the trustee or *RSA provider received the notice, is less than the tax that would be payable in respect of your contribution (or part of the contribution) if the trustee or provider were to acknowledge receipt of the notice.

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Application to successor funds

290-170(5)

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Subsections (1) to (4) and section 290-180 apply as if:

(a) references in those provisions to the fund or *RSA were references to a *successor fund; and

(b) references in those provisions to the trustee or *RSA provider were references to the trustee or RSA provider of the successor fund;

if:

(c) after making your contribution, all of the *superannuation interest to which the notice relates is transferred to the successor fund; and

(d) you have not previously given a valid notice under this section to any *superannuation provider in relation to the contribution.

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History

S 290-170(5) substituted by No 117 of 2010, s 3 and Sch 4 item 3, applicable in relation to:

(a) notices given under section 290-170 of the Income Tax Assessment Act 1997 on or after 17 November 2010; and

(b) notices of variation given under section 290-180 of that Act on or after 17 November 2010 (whether the notices being varied were given before, on or after 17 November 2010).

S 290-170(5) formerly read:

Application to merging superannuation funds

290-170(5)
If:

(a) after making your contribution, a choice is made under Subdivision 310-B in relation to the *superannuation fund (the original fund ), another superannuation fund (the continuing fund ) and an *arrangement; and

(b) under the arrangement, you became a member (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) of the continuing fund; and

(c) you did not give a notice under subsection (1) in relation to the contribution while you were a member (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) of the original fund;
then subsections (1) to (4), and section 290-180 , apply as if:

(d) references in those provisions to the fund were references to the continuing fund; and

(e) references in those provisions to the trustee were references to the trustee of the continuing fund.

S 290-170(5) inserted by No 19 of 2010, s 3 and Sch 2 item 9, effective 25 March 2010. For application provisions see note under Div 310 heading.

290-170(6)
(Repealed by No 89 of 2013)

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History

S 290-170(6) repealed by No 89 of 2013, s 3 and Sch 1 item 17, effective 2 July 2019. S 290-170(6) formerly read:

Amounts transferred to a MySuper product in another complying superannuation fund

290-170(6)
If:

(a) under an * arrangement, the fund (the original fund ) transfers an * accrued default amount of a member (within the meaning of the Superannuation Industry (Supervision) Act 1993 ):

(i) as a result of an election made under paragraph 29SAA(1)(b) of that Act; or

(ii) under section 388 of that Act;
to another superannuation fund that is a continuing fund for the purposes of subsection 311-10(3); and

(b) the arrangement takes effect after the making of your contribution; and

(c) you are a member (within the meaning of that Act) of the continuing fund immediately after the arrangement takes effect; and

(d) you did not give a notice under subsection (1) in relation to the contribution while you were a member (within the meaning of that Act) of the original fund;
then subsections (1) to (4) of this section, and section 290-180, apply as if references in those provisions to the original fund (or the trustee of the original fund) were references to the continuing fund (or the trustee of the continuing fund).

S 290-170(6) inserted by No 89 of 2013, s 3 and Sch 1 item 6, applicable to income years that include 1 July 2013, and to later income years.

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