The AAT has affirmed the Commissioner’s decision that a superannuation contribution paid by a taxpayer’s employer on 28 June 2007 into a clearing account but not allocated into the taxpayer’s super fund until 2 July 2007 meant that the amount of monies should be attributed to the 2007-08 financial year, and not the 2006-07 year as contended by the taxpayer. Accordingly, it held the taxpayer had contributed more than the maximum concessional contribution for the 2007-08 financial year and was liable to excess contributions tax on the amount of the excess contribution.
The taxpayer was employed by a family business. On 28 June 2007, by way of electronic funds transfer, an amount of super was paid into a clearing account.
The clearing account was offered by the relevant superannuation fund provider. The product disclosure statement of the account broadly provided that: (i) the clearing account is a service provided to the employer, not the employee; (ii) the clearing account is not a super fund; (iii) any funds paid into the account will not be counted as being contributed to the relevant super fund until those funds are actually received by the fund itself; (iv) once the funds have been received into the clearing account and confirmed by the employer, the contribution will then be allocated to the super fund the following business day.
The monies in the clearing account were allocated to the relevant super fund on 2 July 2007. The taxpayer argued the contribution was complete when the payment was made and received into the clearing account. However, the Tribunal found the clearing account “is only a holding account” and that the PDS confirmed the contributions should not be regarded as being made until they are allocated from the clearing account to the particular fund. The Tribunal concluded that it did not have jurisdiction in the case to consider whether it would be more appropriate to allocate the contributions to the earlier financial year.
(AAT Case [2012] AATA 441, Re Colless and FCT, AAT, Ref No: 2011/5317, McCabe SM, 13 July 2012.)
[LTN 136, 17/7]