In a preliminary matter, the AAT has found that it has jurisdiction to review the Commissioner’s decision not to make a determination under s292-465 of ITAA 1997 that a taxpayer’s excess non-concessional contributions be disregarded.

In November 2012, the Commissioner issued a notice of assessment of excess non-concessional superannuation contributions tax for the 2010/11 year to the taxpayer. Later, the taxpayer applied to the Commissioner for a determination under s292-465 that a specified amount of his non-concessional contributions for the relevant year be disregarded. However, the Commissioner decided not to make the determination.

The taxpayer objected against that decision, the Commissioner disallowed the objection and the taxpayer sought review by the AAT. At a telephone directions hearing, the question arose whether the AAT had jurisdiction to review the Commissioner’s decision not to make a determination.

The AAT noted that s 292-465 had been amended in 2010 (and again in 2013 but the latter amendments only applied to the 2013/14 year). Among the 2010 amendments was the insertion of s292-465(9)(a) which provides that a taxpayer may object only on the ground that the taxpayer is dissatisfied with a determination that they applied for under that section.

The AAT said that the ordinary meaning conveyed by s 292-465(9)(a) led to a manifestly absurd result. It therefore gave consideration to the explanatory memorandum to the Bill that inserted the section. It found that the mischief which the 2010 amendments were intended to remedy was the absence of a right to object against the Commissioner’s refusal to make a determination. Interpreting s 292-465(9)(a) in that way, the AAT held that it has jurisdiction to review the relevant decision.

AAT ref: [2015] AATA 138 (SE Frost, Deputy President and J Popple, Senior Member), Canberra, 11 March 2015.

[IT 13/3/15]

The AAT found that the wording of s 292-465(9)(a), which provides that a person may object only “on the ground that you are dissatisfied with a determination that you applied for under this section”, was “manifestly absurd”. The AAT noted that a person would never be dissatisfied if the Commissioner made the determination that the person asked for. So, if the words were given their ordinary meaning, the only taxpayers entitled to object could not do so, the AAT said. In finding that the provisions were manifestly absurd, the AAT relied on the powers under the Acts Interpretation Act 1901 to use extrinsic material, namely the Superannuation Legislation Amendment Bill 2010, to give the words their intended meaning.

[LTN 50, 15/3/15]