Income Tax Assessment Act 1997

CHAPTER 3 - SPECIALIST LIABILITY RULES

PART 3-30 - SUPERANNUATION

View history note

Division 290 - Contributions to superannuation funds

View history reference

View history note

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

View history reference

View history note

Other employment-connected deductions

SECTION 290-90 Controlling interest deductions

View history reference

290-90(1)
Section 290-60 applies as modified by this section if you make a contribution in respect of another person at a time, and at that time:

(a) the other person is an employee of a company in which you have a controlling interest; or

(b) you are connected to the other person in the circumstances set out in subsection (5); or

(c) you are a company connected to the other person in the circumstances described in subsection (6).

290-90(2)
Treat the other person as your employee at that time for the purposes of subsection 290-60(1) .

Note 1:

A deduction may be denied by section 85-25 if the employee is your associate.

Note 2:

Section 86-60 (read together with section 86-75 ) limits the extent to which superannuation contributions by personal service entities are deductions.

View history note

290-90(3)
Despite subsection 290-60(2) , for you to deduct the contribution the condition in subsection (4) needs to be satisfied instead of the condition in section 290-70 .

290-90(4)

View history reference

The other person must be:

(aa) an employee (within the expanded meaning of employee given by section 12 of the Superannuation Guarantee (Administration) Act 1992 ) of the other person ' s employer; or

View history reference

(a) engaged in producing the assessable income of the other person ' s employer; or

(b) an Australian resident engaged in the business of the other person ' s employer.

View history note

290-90(5)
For the purposes of paragraph (1)(b), the circumstances are:

(a) you are the beneficial owner of shares in a company of which the other person is an employee, but you do not have a controlling interest in the company; and

(b) you are at *arm ' s length with the other person in relation to the contribution; and

(c) neither the other person, nor a *relative of the other person:

(i) has set apart an amount as a fund, or has made a contribution to a fund, for the purpose of providing *superannuation benefits for you or a relative of yours; or

(ii) has made an *arrangement under which the other person or relative will or may do so.

Company controlling interest deductions

290-90(6)
For the purposes of paragraph (1)(c), the circumstances are:

(a) the other person is an employee of an entity that has a controlling interest in the company; or

(b) an entity that has a controlling interest in the company also has a controlling interest in a company of which the other person is an employee.

View history note

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.