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SECTION 290-180 Notice may be varied but not revoked or withdrawn

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290-180(1)
You cannot revoke or withdraw a valid notice in relation to the contribution (or a part of the contribution).

290-180(2)
You can vary a valid notice, but only so as to reduce the amount stated in relation to the contribution (including to nil). You do so by giving notice to the trustee or the *RSA provider in the *approved form.

290-180(3)
However, you cannot vary a valid notice after:

(a) 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

(b) otherwise - the end of the next income year.

290-180(3A)

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The variation is not effective if, when you make it:

(a) you were not a member of the fund or the holder of the *RSA; or

(b) the trustee or *RSA provider no longer holds the contribution; or

(c) 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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290-180(4)
Subsection (3) does not apply to a variation if:

(a) you claimed a deduction for the contribution (or a part of the contribution); and

(b) the deduction is not allowable (in whole or in part); and

(c) the variation reduces the amount stated in relation to the contribution by the amount not allowable as a deduction.

Application to successor funds

290-180(5)

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Subsections (2) and (3A) apply as if:

(a) the reference in subsection (3A) to the fund or *RSA were a reference to a *successor fund; and

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

if, after a valid notice is given under section 290-170 in relation to the contribution, all of the *superannuation interest to which the notice relates is transferred to the successor fund.

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History

S 290-180(5) substituted by No 117 of 2010, s 3 and Sch 4 item 4, 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 290-180(5) formerly read:

Application to merging superannuation funds

290-180(5)
If:

(a) after a valid notice is given, 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 seek to vary the valid notice after you cease to be a member (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) of the original fund;
then subsections (2) and (3A) apply as if:

(d) the reference in subsection (3A) to the fund were a reference to the continuing fund; and

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

S 290-180(5) inserted by No 19 of 2010, s 3 and Sch 2 item 10, effective 25 March 2010. For application provisions see note under Div 310 heading.

290-180(6)
(Repealed by No 89 of 2013)

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