CHAPTER 3
-
SPECIALIST LIABILITY RULES
PART 3-30
-
SUPERANNUATION
History
Part 3-30 inserted by
No 9 of 2007
, s 3 and Sch 1 item 1, applicable to the 2007-2008 income year and later years.
Division 291
-
Excess concessional contributions
History
Div 291 inserted by No 118 of 2013, s 3 and Sch 1 item 1, effective 29 June 2013. No 118 of 2013, s 3 and Sch 1 Pt 7 contains the following application, transitional and saving provisions:
Part 7
-
Application, transitional and saving provisions
Division 1
-
Application and transitional provisions
110 Application
110(1)
Subject to this Part, the amendments made by this Schedule
[
of No 118 of 2013] apply:
(a)
so far as they affect assessments relating to an income year
-
to assessments for the 2013-14 income year and later income years; and
(b)
so far as they affect assessments relating to a financial year
-
to assessments for the 2013-2014 financial year and later financial years; and
(c)
otherwise
-
to acts done or omitted to be done, or states of affairs existing, or periods ending, on or after the start of the first income year starting on or after 1 July 2013.
110(2)
Subitem (1) does not apply to item 1 of this Schedule
[
of No 118 of 2013].
…
Division 2
-
Saving provisions
112 Making and amending assessments, and doing other things etc., in relation to past matters
112
Even though an Act is repealed or amended by this Act
[
No 118 of 2013], the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument (within the meaning of the
Legislative Instruments Act 2003
):
(a)
making or amending an assessment (including under a provision that is itself repealed or amended);
(b)
exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);
in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
113 Saving of provisions about effect of assessments
113
If a provision or part of a provision that is repealed or amended by this Schedule
[
of No 118 of 2013] deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
114 Saving of provisions about general interest charge and interest
114
If:
(a)
a provision or part of a provision that is repealed or amended by this Act
[
No 118 of 2013] provides for the payment of:
(i)
general interest charge or shortfall interest charge; or
(ii)
an amount of interest worked out under subsection
292-425(2)
of the
Income Tax Assessment Act 1997
; and
(b)
in a particular case, the period in respect of which the charge or interest is payable (whether under the provision or under the
Taxation Administration Act 1953
) has not begun, or has begun but not ended, when the provision is repealed or amended;
then, despite the repeal or amendment, the provision or part continues to apply in the particular case until the end of the period.
115 Saving of regulations
-
allocated amounts
115(1)
This item applies to a regulation if:
(a)
the regulation was made for the purposes of subsection
292-25(3)
of the
Income Tax Assessment Act 1997
; and
(b)
the regulation was in force immediately before the commencement of this item
[
29 June 2013].
115(2)
The regulation has effect, after the commencement of this item
[
29 June 2013], as if it had been made under subsection
291-25(3)
of the
Income Tax Assessment Act 1997
as amended by this Act
[
No 118 of 2013].
116 Saving of regulations
-
notional taxed contributions
116(1)
This item applies to a regulation if:
(a)
the regulation was made for the purposes of subsection
292-170(1)
of the
Income Tax Assessment Act 1997
; and
(b)
the regulation was in force immediately before the commencement of this item
[
29 June 2013].
116(2)
The regulation has effect, after the commencement of this item
[
29 June 2013], as if it had been made under subsection
291-170(1)
of the
Income Tax Assessment Act 1997
as amended by this Act
[
No 118 of 2013].
117 Saving of regulations
-
transitional rules for notional taxed contributions
117(1)
This item applies to a regulation if:
(a)
the regulation was made for the purposes of a provision of section
292-170
of the
Income Tax Assessment Act 1997
mentioned in column 1 of an item of the table in subitem (3); and
(b)
the regulation was in force immediately before the commencement of this item
[
29 June 2013].
117(2)
The regulation has effect, after the commencement of this item
[
29 June 2013], as if it had been made under the provision of section
291-170
of the
Income Tax (Transitional Provisions) Act 1997
mentioned in column 2 of that item of the table, as inserted by this Act
[
No 118 of 2013].
117(3)
This is the table mentioned in subitems (1) and (2):
|
Saving of regulations
-
notional taxed contributions
|
|
Item
|
Column 1
Provision of the
Income Tax Assessment Act 1997
under which the existing regulation was made
|
Column 2
Provision of the
Income Tax (Transitional Provisions) Act 1997
under which the regulation is taken, after the commencement of this item
[
29 June 2013], to have been made
|
| 1 |
Paragraph 292-170(6)(d) |
Paragraph 291-170(2)(d) |
| 2 |
Subparagraph 292-170(7)(e)(ii) |
Subparagraph 291-170(3)(e)(ii) |
| 3 |
Paragraph 292-170(7)(f) |
Paragraph 292-170(3)(f) |
| 4 |
Paragraph 292-170(8)(d) |
Paragraph 292-170(4)(d) |
| 5 |
Subparagraph 292-170(9)(e)(ii) |
Subparagraph 291-170(5)(e)(ii) |
| 6 |
Paragraph 292-170(9)(f) |
Paragraph 292-170(5)(f) |
118 Saving of determination about discretion to disregard contributions
Determination relating to concessional contributions
118(1)
This item applies to a determination if:
(a)
the determination was made under section
292-465
of the
Income Tax Assessment Act 1997
in relation to concessional contributions for a financial year; and
(b)
the determination was in force immediately before the commencement of this item
[
29 June 2013].
118(2)
The determination has effect, after the commencement of this item
[
29 June 2013], as if it had been made under section
291-465
of that Act as amended by this Act
[
No 118 of 2013].
Determination relating to non-concessional contributions
118(3)
This item applies to a determination if:
(a)
the determination was made under section
292-465
of the
Income Tax Assessment Act 1997
in relation to non-concessional contributions for a financial year; and
(b)
the determination was in force immediately before the commencement of this item
[
29 June 2013].
118(4)
The determination has effect, after the commencement of this item
[
29 June 2013], as if it had been made under section
292-465
of that Act as amended by this Act
[
No 118 of 2013].
119 Part does not limit operation of the
Acts Interpretation Act 1901
119
This Part does not limit the operation of the
Acts Interpretation Act 1901
.
Subdivision 291-D
-
Other provisions
History
Subdiv 291-D inserted by No 118 of 2013, s 3 and Sch 1 item 1, effective 29 June 2013. For application, transitional and saving provisions see note under Div
291
heading.
Operative provisions
SECTION 291-465
Commissioner
'
s discretion to disregard contributions etc. in relation to a financial year
291-465(1)
The Commissioner may make a written determination that, for the purposes of working out the amount of your
*
excess concessional contributions for a
*
financial year, all or part of your
*
concessional contributions for a financial year is to be:
(a)
disregarded; or
(b)
allocated instead for the purposes of another financial year specified in the determination.
Conditions for making of determination
291-465(2)
The Commissioner may make the determination only if:
(a)
you apply for the determination in accordance with this section; and
(b)
the Commissioner considers that:
(i)
there are special circumstances; and
(ii)
making the determination is consistent with the object of this Division and Division
292
.
291-465(2A)
Paragraph (2)(a) does not apply if:
(a)
the determination relates to a contribution that is an amount the Commissioner pays for your benefit under Part
8
of the
Superannuation Guarantee (Administration) Act 1992
; and
(b)
the amount represents an amount of a charge payment (within the meaning of section
63A
of that Act) paid as a result of a disclosure to which paragraph
74(1)(a)
of that Act applies; and
(c)
the entity making the disclosure qualified, under section
74
of that Act, for an amnesty in relation to the *superannuation guarantee shortfall to which the charge payment relates.
History
S 291-465(2A) inserted by No 21 of 2020, s 3 and Sch 1 item 6, effective 1 April 2020 and applicable in relation to the 2017-18 income year and later income years.
Matters to which regard may be had
291-465(3)
In making the determination the Commissioner may have regard to the following:
(a)
whether a contribution made in the relevant
*
financial year would more appropriately be allocated towards another financial year instead;
(b)
whether it was reasonably foreseeable, when a relevant contribution was made, that you would have
*
excess concessional contributions or
*
excess non-concessional contributions for the relevant financial year, and in particular:
(i)
if the relevant contribution is made in respect of you by another individual
-
the terms of any agreement or arrangement between you and that individual as to the amount and timing of the contribution; and
(ii)
the extent to which you had control over the making of the contribution;
(c)
any other relevant matters.
Requirements for application
291-465(4)
The application:
(a)
must be in the
*
approved form; and
(b)
can only be made after all of the contributions sought to be disregarded or reallocated have been made; and
(c)
if you receive an
*
excess concessional contributions determination for the
*
financial year
-
must be given to the Commissioner within:
(i)
60 days after receiving the determination; or
(ii)
a further period allowed by the Commissioner.
Notification
291-465(5)
The Commissioner must give you:
(a)
a copy of the determination; or
(b)
if the Commissioner decides not to make a determination
-
notice of that decision.
291-465(6)
(Repealed by No 81 of 2016)
History
S 291-465(6) repealed by No 81 of 2016, s 3 and Sch 10 item 77, effective 1 January 2017 and applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws. S 291-465(6) formerly read:
291-465(6)
The determination or notice may be included in any other notice under this Act.
Review
291-465(7)
If you are dissatisfied with:
(a)
a determination made under this section in relation to you; or
(b)
a decision the Commissioner makes not to make such a determination;
you may object against the determination, or the decision, as the case requires, in the manner set out in Part
IVC
of the
Taxation Administration Act 1953
.
291-465(8)
To avoid doubt:
(a)
subject to subsection
14ZVB(3)
of the
Taxation Administration Act 1953
, you may also object, on the ground that you are dissatisfied with such a determination or decision, relating to all or part of your
*
concessional contributions for a
*
financial year:
(i)
under section
175A
of the
Income Tax Assessment Act 1936
against an assessment made in relation to you for the corresponding income year; or
(ii)
under section
97-10
in Schedule
1
to the
Taxation Administration Act 1953
against an
*
excess concessional contributions determination made in relation to you for the financial year; and
(b)
for the purposes of paragraph (e) of Schedule
1
to the
Administrative Decisions (Judicial Review) Act 1977
, the making of a determination under this section is a decision forming part of the process of making an assessment of tax, and making a calculation of charge, under this Act.
History
S 291-465 inserted by No 118 of 2013, s 3 and Sch 1 item 1, effective 29 June 2013. For application, transitional and saving provisions see note under Div
291
heading.
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