A private ruling from the ATO has reconfirmed the exact requirements for claiming a personal superannuation contribution deduction and the necessity for checking the super fund involved has received a notice of intent (NOI) for that action.
The ruling, handed down on 6 July and released publicly last week by the ATO, involved a case where a member made a personal contribution to their superannuation fund and then subsequently sent an NOI via post to claim a deduction for the amount contributed, but did not receive an acknowledgement of receipt from the fund.
When completing their tax return for the relevant income year, the prefilled amount for the deduction did not appear and when the member followed up with the fund, they were informed it had never received the NOI and a new notice could not be processed as it was not received before the end of the financial year in which the contribution was made.
When asked whether the member was still eligible to claim the deduction under section 290-170 of the Income Tax Assessment Act 1997 (ITAA 1997) in these circumstances, the ATO stated that was not possible, emphasised the necessity for all parties to act within the relevant timeframes and pointed out it was constrained by tax law from allowing a retrospective action by the member.
The regulator pointed to subsection 290-170(1) of the ITAA 1997, which states to deduct a contribution “you must give to the trustee of the fund a valid notice, in the approved form, of your intention to claim the deduction”, with this to take place before they lodge their tax return for the year of the contribution and the “trustee or provider must have given you an acknowledgment of receipt of the notice”.
It went further, noting subsection 290-170(3) states “the trustee must, without delay, give the member an acknowledgment of a valid notice”.
“In your case it is accepted the taxpayer has met the criteria to lodge a NOI [and] the taxpayer lodged a NOI via post to the fund, however, never received an acknowledgement by the fund that the NOI had been accepted,” the ruling said.
“Based on the information the taxpayer has provided, the taxpayer is unable to lodge a new notice of intent as the due date has now passed. Accordingly, the taxpayer is not eligible to claim a personal super contribution deduction for the amount contributed.
“The commissioner of taxation does not have any discretion or administrative authority to change or disregard the prescribed requirements.”
Jason Spits
SENIOR JOURNALIST
Jason is a senior journalist with Benchmark Media and writes for the selfmanagedsuper website and magazine and smstrusteenews website. He has covered financial services since 1999 and has written about life insurance, superannuation, investment management and financial advice, in both a freelance and in-house capacity, and also did a brief stint as a media manager for an industry association. He has been the editor of trade titles Money Management and Financial Standard, and was most recently senior journalist with life insurance title Riskinfo.
Articles by Jason