The PBR (5010111729592) dealt with a taxpayer who made a non-concessional contribution with the intent to claim a personal superannuation contribution deduction (PSCD).
The commissioner heard that the notice of intent (NOI) to claim the deduction was sent to the fund on 30 October of the relevant income year, but it was not dated. The NOI was received by the fund on 8 November of that same year.
It continued that the super fund rejected the NOI as it was not valid due to not being dated. On 15 November, a letter was sent to the taxpayer by the super fund requesting the taxpayer to complete a new NOI.
On 21 November, the taxpayer’s annual tax return was lodged without a valid notice of intent to claim being acknowledged by the super fund.
The ruling stated that under section 290-150 of the Income Tax Assessment Act 1997, a person can claim a deduction for personal contributions made to their super fund for the purpose of providing superannuation benefits to themselves.
However, subsection 290-150(2) of the ITAA 1997 states that all of the conditions in sections 290-155, 290-165 and 290-170 of the ITAA 1997 must be satisfied before a deduction can be claimed for contributions made in that income year.
Subsection 290-170(1) of the ITAA 1997 reads:
To deduct the contribution, or a part of the contribution:
(a) You must give to the trustee of the fund or the RSA provider a valid notice, in the approved form, of your intention to claim the deduction; and
(b) The notice must be given before:
(i) if you have lodged your income tax return for the income year in which the contribution was made on a day before the end of the next income year – the end of that day; or
(ii) Otherwise, the end of the next income year; and
(c) The trustee or provider must have given you an acknowledgment of receipt of the notice.
“In the taxpayer’s situation, the NOI was provided to the fund, however, it was not valid and, therefore, it was not accepted. During this time, the taxpayer’s tax return was lodged without a valid NOI,” the ruling read.
The ruling continued that paragraph 263 of Taxation Ruling 2010/1 Income Tax: superannuation contributions (TR 2010/1) states that a person who intends to deduct their personal superannuation contributions must give the superannuation provider a valid notice in the approved form before lodging their income tax return for the year (or within 12 months of the end of the income year if they have not lodged their return by that time). The trustee must also acknowledge receipt of the notice.
“Based on the information provided, the taxpayer did not have a valid notice of intent to claim a personal super contribution deduction when their income tax return was lodged,” the ruling read.
“Accordingly, the taxpayer is not eligible to claim a PSCD for the contribution made in the specified income year. The Commissioner of Taxation does not have any discretion or administrative authority to change or disregard the prescribed requirement.”
Mmmm must have missed something!
The bullet point indicates the return is ALREADY lodged?
Thus the valid notice must be provided “on a day before the end of the next income year”
You can still get the deduction. There is no indication you received the notice before lodging a return. In fact it mentions you had already lodged the return! Stepping through this…..
To deduct the contribution, or a part of the contribution:
(b) The notice must be given before:
(i) if you have lodged your income tax return for the income year in which the contribution was made on [i]a day before the end of the next income year – the end of that day; or[/i]
The issue is a valid notice must be held. However, the statement about holding it before/”When their return is lodged” does not appear relevant in the actual legislation as transcribed above.
TR2010/1 clearly extends the legislative transcription to say [i]before lodging their income tax return for the year, [/i]but I don’t read that from the actual legislation itself.
But I didn’t get an A for English at school, so probably just dummy-me!