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The AAT, sitting as the Small Taxation Claims Tribunal, has affirmed the Commissioner’s decision to levy excess contributions tax on a taxpayer, and to refuse to exercise the discretion to reallocate contributions to the previous income year.

On 27 June 2008, the taxpayer’s superannuation fund received four remittances by Electronic Funds Transfer from the taxpayer’s employer, but with no clear narration identifying the relevant member or account. As the fund was unable to identify the member on whose behalf the contributions were made they were held in a suspense account. The employer also sent, by post, two remittance advices dated 27 June 2008, identifying contributions on the taxpayer’s behalf. Those remittance advices were not received by the fund until 1 July 2008. Only then was the fund able to allocate the contributions to the taxpayer’s account.

On this basis, the AAT held that the contributions were not “made” until the 2008-2009 income year. The result was that the taxpayer made excess contributions for that year and was properly assessed to excess contributions tax.

The AAT also affirmed the Commissioner’s refusal to exercise the discretion in s 292-465 of the ITAA 1997 in the taxpayer’s favour to reallocate the relevant contributions from the 2008-2009 year to the 2007-2008 year. In the AAT’s view, there were no “special circumstances” justifying the exercise of the discretion.

Re Davenport and FCT [2012] AATA 760 (Senior Member CR Walsh, 1 November 2012).

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