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The AAT has exercised the discretion in s 292-465 of ITAA 1997 so that a superannuation contribution made by a company that employed the taxpayer on 10 July was disregarded and treated as if it were made in the previous financial year. Without the exercise of the discretion, the taxpayer would have been liable to pay excess contributions tax in relation to that contribution and another contribution made in the same year, the total of which exceeded the concessional contributions cap for that year.

The taxpayer, as sole director and shareholder of the company believed, on the basis on information published on the ATO's website, that he had until 28 July to make contributions. The webpage pointed out an employer could make super contributions in respect of an employee up until 28 July and still have those amounts credited to the quarter ending the previous June for SGC purposes. The taxpayer did not realise that different rules applied for excess contributions tax purposes. As the AAT said:

"He was not aware there was, in effect, a parallel regime in the Income Tax Assessment Act setting an absolute deadline for concessional contributions by 30 June so that he might become liable to an excess contributions tax even though his employer had made contributions within the time allowed to the employer."

The AAT found that there were a number of special circumstances as required by s 292-465. Further, it found that the exercise of the discretion was consistent with the object of Division 292.

Bornstein and FCT [2012] AATA 424 (AAT, McCabe SM, 6 July 2012).


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