Edited version of your private ruling

Authorisation Number: 1011992897930

This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.

Ruling

Subject: Deduction for personal superannuation contributions

Question 1

Will your client be 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)?

Answer

No

This ruling applies for the following periods:

Year ended 30 June 2010

The scheme commences on:

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

Your client made a personal superannuation contribution in the 2009-10 income year.

Your client requests the commissioner's discretion to claim a deduction for the above mentioned contribution in the 2009-10 income year.

Your client relied upon his previous accountant to ensure all tax obligations were met, and was not advised of the requirements to notify the fund of intention to claim a tax deduction. This matter was brought to your client's attention some 2 to 3 months after the end of the following financial year

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

Subsection 357-110(1) Taxation Administration Act 1953

Reasons for decision

Summary

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.

According to the facts, the conditions in section 290-170 have not been met. This will be discussed in further detail below.

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 they lodge their 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, they 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:

o they are a member of the fund or the holder of the retirement savings account (RSA);

o 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);

o the trustee or RSA provider has not begun to pay a superannuation income stream based on the contribution; or

· before the notice is given:

o a contributions splitting application has not been made in relation to the contribution; and;

o the trustee or RSA provider to which you made the application has not rejected the application.

Your client stated that they relied upon their previous accountant and was not advised of the requirement to notify the fund of his intention to claim a tax deduction. Subsequently, your superannuation fund did not provide acknowledgment of a valid notice under section 290-170 of the Income Tax Assessment Act 1997 (ITAA 1997) having been lodged with them.

For the 2010 income tax year, notice can be given to the fund no later than 30 June 2011. Your client has stated that this matter was brought to his attention some 2 or 3 months after the end of the following financial year. The Commissioner does not have the discretion requested to reverse this finding. That is, as the superannuation fund would not have processed the contribution as a taxable contribution they would be unable to amend the contribution to be a deductible contribution. Consequently, the requirements of section 290-170 of ITAA 1997 have not been met.

Conclusion:

As not 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, your client is not entitled to claim a deduction for the personal superannuation contributions to their nominated superannuation fund in the 2009-10 income year.

Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).