The AAT has set aside the Commissioner’s objection decision and decided that a superannuation contribution made by a taxpayer to his super fund on 10 July 2007, should be attributed to the 2006-07 financial year. The AAT found the taxpayer had missed the deadline as a result of a “misunderstanding” of the rules.
The taxpayer was employed by a company of which he was also the sole director and shareholder. The taxpayer visited an ATO webpage, which pointed out that an “employer” could make super contributions in respect of an employee up until 28 July and still have those amounts credited to the quarter ending the previous June. Based on that information, the taxpayer assumed he was able to make super contributions up until 28 July without any adverse consequences.
The taxpayer was not aware that this was for SGC/employers and of the different 30 June deadline for concessional contributions for “employees”. The taxpayer exceeded the cap when he made a contribution on 26 June 2008.
The AAT was satisfied that there were “special circumstances” in the case. The AAT noted the taxpayer’s attempts to secure advice from his accountant before the 30 June deadline, the “ambiguity” regarding the ATO webpage (though the AAT noted the webpage was not misleading in relation to the employer’s position), and that the taxpayer was not afforded an opportunity to avoid compounding the error “because the Commissioner did not alert him to the true position before the further payment was made in June 2008”. The AAT also observed the taxpayer’s behaviour in making regular contributions to super which it found was consistent with the object of Div 292.
The AAT concluded the taxpayer had satisfied both limbs of the test in s 292-465(3) of the ITAA 1997 to enliven the Commissioner’s discretion to reallocate the 10 July contribution to the previous financial year.
(AAT Case [2012] AATA 424, Re Bornstein and FCT, AAT, Ref No: 2011/5143, McCabe SM, 6 July 2012.)
[The two s292-465(3) tests are that there were “special circumstances” and that reallocating the contribution to a different year would be consistent with the object of the relevant division.]
[LTN 130, 9/7]