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The ATO has issued a Decision Impact Statement in relation to the decision of the AAT in Bornstein and FCT [2012] AATA 424.

The case concerned whether it was appropriate to disregard or allocate to another year one or more superannuation contributions made by a company, to relieve the taxpayer from excess concessional contributions tax. The AAT held that it was so appropriate in the circumstances relating to the taxpayer, described as "a 'perfect storm' of events, miscommunications and misunderstandings that combined to leave the taxpayer in an unusual and unfortunate position".

The AAT therefore decided that the Commissioner's objection decision refusing to exercise the discretion provided in s 292-465 of ITAA 1936 should be set aside and that the discretion should be exercised in favour of the taxpayer.

The Commissioner accepts that the decision to exercise the discretion in favour of the taxpayer was open to the AAT. However, notwithstanding his loss before the AAT, the Commissioner states that, in his opinion, the AAT's decision is consistent with the Commissioner's stated view on the exercise of the discretion contained in PS LA 2008/1.


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