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The ATO has issued a Decision Impact Statement in relation to the decision of the Small Taxation Claims Tribunal in Hamad and FCT [2012] AATA 530 (26 July 2012).

The case concerned the exercise of the Commissioner's discretion to disregard or allocate to another year one or more superannuation contributions made to relieve the taxpayer from excess concessional contributions tax.

In the decision, the Tribunal set aside the Commissioner's objection decision and decided the employer contributions (both superannuation guarantee and salary sacrifice) received by the superannuation fund in July 2009 should be allocated to the financial year ended 30 June 2009.

The Decision Impact Statement states:

"In this case, the Tribunal considered the relevant matters and reached conclusions consistent with its findings on the facts. In particular, the Tribunal accepted that the Taxpayer controlled the amount of the contribution. The Tribunal made findings as to the amounts to be contributed at [8]. However it must also be implied from the statement in [21] that the employer "improperly...retained amounts directed to superannuation " that the Tribunal found the taxpayer did not control the timing of the contributions. It is therefore clear that the Tribunal took account of the taxpayer's capacity to control the timing and amount of the contributions."


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