The AAT has affirmed that a taxpayer was liable for excess contributions tax for superannuation contributions made exceeding the concessional contributions cap for the years ended 30 June 2008 and 30 June 2009.
The taxpayer entered into a salary sacrifice arrangement with his employer and for the relevant years exceeded the $100,000 concessional contributions cap. The Commissioner issued the taxpayer with notices for excess contributions tax for the relevant years. The taxpayer objected to the notices and argued that “special circumstances” exist as there was a timing difference between when an employee accrues the super entitlement and when an employer is required to pay the contribution making it difficult for the layman to perform calculations required to maximise super contributions. Therefore, the taxpayer argued that the Commissioner should exercise his discretion under s 292-465 of the ITAA 1997 and reallocate the amounts exceeding the concessional contributions cap to prior years.
The Tribunal held that the taxpayer failed to demonstrate that his circumstances are “special circumstances”. It said the timing of the salary sacrifice contributions is determined in accordance with an arrangement between the taxpayer and his employer, as such it would be reasonably foreseeable that the taxpayer would be subject to excess contributions tax as the contributions were made in accordance with an established pattern. Therefore, the AAT held that the taxpayer had not discharged the onus of proving that the Commissioner should exercise his discretion pursuant to s 292-465 of the ITAA 1997 and affirmed the notices for excess contributions tax for the relevant years.
(AAT Case [2012] 130, Re Naude and FCT, AAT, Ref Nos: 2011/3388-3389, Sweidan SM, 28 February 2012.)
[LTN 49, 13/3]