10 May 10 Excess contributions tax: restitution of a "mistaken" contribution - ATO ID 2010/104
On 30 April 2010, the ATO published ATO ID 2010/104 entitled "Superannuation: Excess contributions tax: restitution of a 'mistaken' contribution".
The ATO ID states a personal contribution may still be included in an individual’s non-concessional contributions for the financial year even if a trustee has repaid it to the member in restitution of a purported mistaken payment.
The following is extracted from the ATO ID:
"In this case, the individual claims that he made a mistake in making the contribution as he was unaware that this amount would count towards the relevant non-concessional contributions cap. The trustee refunded the claimed mistaken contribution purportedly under the law of restitution.
It is the Commissioner's view that in this case the individual formed an intention to make a superannuation contribution of a certain amount to the fund and gave effect to that intention by making a contribution of that amount. The fund was the intended recipient of the amount and the individual obtained the expected superannuation benefits. The individual was not mistaken in the sense that he thought he was required to make a contribution. In the circumstances of this case, there was a contribution (as discussed in TR 2010/1), and it would not have been unjust for the trustee of the fund to retain the contribution."