The AAT has denied a taxpayer’s request for the Commissioner to exercise his discretion to reallocate super contributions to another year under s 292-465(3) of the ITAA 1997 as it was not satisfied there were “special circumstances” to enliven the discretion.
The taxpayer had exceeded the super contributions cap for the 2008 income year and had asked the Commissioner to reallocate an amount of $8,440 to the previous year. The amount had been made by his employer in early July 2007. The taxpayer argued the contribution related to work he had done and commissions he had received towards the end of the 2006-07 financial year and that it was inappropriate to say the contribution was made in July 2007. He further argued that if he had been aware of the consequences of his employer’s actions, he would have urged his employer to make the contribution before the end of the 2006-07 year.
The AAT said the expression “special circumstances” is undefined, but its meaning is “tolerably clear”. The circumstances must be unusual or out of the ordinary and must be treated differently to other cases because is it different or unusual. The AAT was not able to identify circumstances of the taxpayer that would justify the exercise of the discretion. Accordingly, the objection decision was affirmed.
(AAT Case [2012] AATA 62, Re Schuurmans-Stekhoven and FCT, AAT, Ref No: 2011/3147, McCabe SM, 13 January 2012.)
[LTN 24, 7/2]