The ATO has issued a Decision Impact Statement on the decision in Re Ward and FCT [2015] AATA 138. In that case, the AAT ruled that it had jurisdiction to review a decision by the Commissioner not to make a determination to disregard or reallocate excess superannuation contributions after finding that s 292-465(9)(a) of the ITAA 1997 was “manifestly absurd”.

The ATO said the Commissioner had not appealed the decision and that it was consistent with his longstanding practice. It said the decision has significance for a taxpayer who wishes to object under Pt IVC against:

  • an excess non-concessional contributions tax (ENCCT) assessment for any financial year; or
  • an excess concessional contributions tax (ECCT) assessment for a financial year up to and including the 2012-13 year (there are no ECCT assessments for the 2013-14 year and later years), on the ground they are dissatisfied with the Commissioner’s decision not to make a subsection 292-465(1) determination or with such a determination the Commissioner did make, where they applied for a subsection 292-465(1) determination on or after 17 November 2010.

Consequently, the ATO says this decision also has significance for the jurisdiction of the AAT when reviewing an objection decision of the kind and in the circumstances described in the previous paragraph, since the AAT can only review an objection decision in relation to an objection validly made under Part IVC.

[LTN 79, 28/4/15]