Recent case illustrates contributions count when cleared funds are received: lawyer
A recent AAT decision confirmed the ATO’s ruling on the timing of concessional contributions for tax purposes, says a solicitor.
Terence Wong, senior associated with Sladen Legal, said in the decision of Mackie v Commissioner of Taxation (Taxation) [2024] AATA 619 (3 April 2024), the AAT affirmed the decision of the commissioner to decline to exercise the discretion in section 291-465(1) of the Income Tax Assessment Act 1997 (Cth) (ITAA 97) to disregard or allocate to another year the taxpayer’s concessional superannuation contributions.
Wong said although the AAT’s decision did not reference it, the ATO ruling TR 2010/1 position on the issue is stated in paragraphs 182 and 183 of the ruling.
“Paragraph 182 states that a superannuation contribution is made when the capital of the fund is increased,” Wong said.
“As explained in paragraphs 183 to 210 of this ruling, the contribution may be made when an amount is received, or ownership of an asset is obtained or the fund otherwise obtains the benefit of an amount.”
Secondly, paragraph 183 states that a contribution of funds as cash or an electronic funds transfer is made when the amount is received by the superannuation provider or credited to the relevant account.
Wong said in this particular instance, the taxpayer made two superannuation contribution payments on 30 June – one on 30 June 2018 for $15,000 and another on 30 June 2019 for $30,000.
“Both of these payments, while processed on 30 June, were not received by the super fund until after that date, that is the following financial year,” he said.
“It was the taxpayer’s intention that those contributions be attributed in the respective years the payments were made rather than on the dates they were received.”
He said the ATO assessment revealed the contributions were made on the dates the funds were received by his superannuation fund, on 4 July 2018 and 11 July 2019 respectively, which placed each transaction over the end of the financial year into the next financial year.
“The taxpayer requested the Tribunal consider that either the $30,000 contribution be disregarded or the payments be recorded by the ATO as having been contributed on the date of payment initiation, rather than the date of receipt of funds by his superannuation fund,” Wong said.
Although an argument for special circumstances was considered, the AAT rejected it, stating that it was “troubled” as to whether Mackie’s “mistake” or “naïve misunderstanding” produced an “unfairness” that resulted in him having to pay tax on his contributions and an excess contributions charge.
The AAT ruling continued that “the circumstances here are not so unusual or unforeseen such that the strict application of the legislation results ‘in an unjust, unreasonable or inappropriate result; a result that the legislation did not intend’”.
“One member of the tribunal said the possibility that a transaction taking more than a week to clear may be grounds for special circumstances but it was not the case here as the payments were sent one day before the new financial year and therefore could not be expected to be received by his superannuation fund that same day, given both days were on a weekend,” Wong said.
“The ruling also said that although Mackie intended for the transfers to be concessional superannuation contributions for the 2018 and 2019 tax years respectively that misfired because the fund did not receive the money until the following tax year.”
This meant the contributions were not “made” in the years that they were intended by Mackie, and as the transactions were initiated on a weekend, not a business day, it was not unusual that the contributions were received a day, or days, later.
“The tribunal also stated that although the second transaction took 11 days to find its way to the fund, it didn’t change things as even if it had been processed the next business day the contribution would have been made in the same financial year,” Wong said.
The ruling stated, “the fact that the transaction took 11 days after 30 June 2019 does not on its own or in combination with other circumstances satisfy me that there are special circumstances”.
Wong said this case serves as a reminder that superannuation contribution payments should be sent well before 30 June for the contribution to be received by the superannuation fund in the current financial year.
