Income Tax Assessment Act 1997
View history note
Hide history noteNote: 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:
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.
You are entitled to a *tax offset for an income year for a contribution you make in the income year to a *superannuation fund, or an *RSA, for the purpose of providing *superannuation benefits for your *spouse (regardless whether the benefits are payable to your spouse ' s *SIS dependants if your spouse dies before or after becoming entitled to receive the benefits).
290-230(2)
You are entitled to the *tax offset only if:
(a) he or she was your *spouse when you made the contribution; and
(b) both you and your spouse were Australian residents when you made the contribution; and
(c) the total of your spouse ' s:
(i) assessable income, disregarding your spouse ' s *assessable FHSS released amount for the income year; and
(ii) *reportable fringe benefits total; and
for the income year is less than $40,000; and
(iii) *reportable employer superannuation contributions;
(d) you have not deducted and cannot deduct an amount for the contribution under section 290-60 (employer contributions); and
(e) if the contribution is made to a *superannuation fund - it is a *complying superannuation fund for the income year of the fund in which you make the contribution.
290-230(3)
You are not entitled to the *tax offset if, when you make the contribution, you are living separately and apart from your *spouse on a permanent basis.
290-230(4)
You are not entitled to the *tax offset for an amount paid by you, as mentioned in regulations under the Family Law Act 1975 , to a *regulated superannuation fund, or to an *RSA, to be held for the benefit of your *non-member spouse in satisfaction of his or her entitlement in respect of the *superannuation interest concerned.
290-230(4A)
You are not entitled to the *tax offset for an income year if:
(a) your *spouse ' s *non-concessional contributions for the *financial year corresponding to the income year exceed your spouse ' s *non-concessional contributions cap for the financial year; or
(b) immediately before the start of the financial year, your spouse ' s *total superannuation balance equals or exceeds the *general transfer balance cap for the financial year.
290-230(5)
For the purposes of subparagraph (2)(c)(iii), reduce (but not below zero) the * reportable employer superannuation contributions by the amount of any * excess concessional contributions your * spouse has for the * financial year corresponding to the income year.
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