The AAT has affirmed the decision of the Commissioner to issue an excess contributions tax (ECT) assessment to a taxpayer after finding there were no “special circumstances” to exercise the Commissioner’s discretion under s 292-465(1) of the ITAA 1997 to allow the reallocation of concessional super contributions to prior financial years.
During the relevant period, the taxpayer had a salary sacrifice arrangement with his then employer to sacrifice part of his salary in return for additional employer superannuation contributions. For the year ended 30 June 2009, the employer made total contributions as follows: $29,266.81 to Fund 1 and $24,408.64 to the taxpayer’s family super fund (Fund 2). Total concessional contributions reported to the Commissioner in respect of the taxpayer were $53,675.45 for the year ended 30 June 2009, which meant the taxpayer had exceeded the relevant concessional contributions cap of $50,000.
The Commissioner issued an ECT assessment for $1,157.75 which the taxpayer objected arguing the assessment was excessive. The taxpayer also sought the Commissioner’s determination under s 292-465(1) to reallocate: (i) the contribution of $16,154.06 made by the employer to Fund 1 on 16 July 2008 in respect of wages accrued for the June 2008 quarter from the 2009 year to the 2008 year; and (ii) the contribution of $11,270.95 made by the employer to Fund 2 on 8 July 2009 in respect of the June 2009 quarter from the 2010 year to the 2009 year.
The Tribunal found the taxpayer had not discharged the onus of proving that the Commissioner should have made the determination under s 292-465(1). It held the taxpayer had failed to demonstrate the existence of any special circumstances. Accordingly, it affirmed the ECT assessment.
(AAT Case [2012] AATA 129, Re Leckie and FCT, AAT, Ref No: 2011/4145, Sweidan SM, 28 February 2012.)
[LTN 49, 13/3]