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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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.

Subdivision 290-B - Deduction of employer contributions and other employment-connected contributions

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Conditions for deducting an employer contribution

SECTION 290-75 Complying fund conditions

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290-75(1)
If the contribution was made to a *superannuation fund, at least one of these conditions must be satisfied:

(a) the fund was a *complying superannuation fund for the income year of the fund in which you made the contribution;

(b) at the time you made the contribution, you had reasonable grounds to believe that the fund was a complying superannuation fund for that income year;

(c) at or before the time you made the contribution, you obtained a written statement (given by or on behalf of the trustee of the fund) that the fund:

(i) was a resident regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ); and

(ii) was not subject to a direction under section 63 of that Act (which prevents a fund from accepting employer contributions).

290-75(2)
However, the condition in paragraph (1)(b) or (c) cannot be satisfied if, when the contribution was made:

(a) you were:

(i) the trustee or the manager of the fund; or

(ii) an *associate of the trustee or the manager of the fund; and

(b) you had reasonable grounds to believe that:

(i) the fund was not a resident regulated superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993 ); or

(ii) the fund was operating in contravention of a regulatory provision (within the meaning of section 38A of that Act).

290-75(3)
For the purposes of subparagraph (2)(b)(ii), a contravention of the Superannuation Industry (Supervision) Act 1993 or regulations made under it is to be ignored unless the contravention is:

(a) an offence; or

(b) a contravention of a civil penalty provision of that Act or those regulations.

290-75(4)
For the purposes of subparagraph (2)(b)(ii), it is sufficient if a contravention is established on the balance of probabilities.

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