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The AAT has held that excess superannuation contributions made by the taxpayer to a superannuation fund should not be ignored by the making, by the Commissioner, of a determination under s 292-465 ITAA 1997.

In the income year ended 30 June 2008, the taxpayer contributed $430,000 to his superannuation fund, which was within the "brought forward" cap of $450,000 that he could make in that year and the next two years. As a result of the global financial crisis, he withdrew about half of the money in his superannuation account. On 16 September 2009, he paid $100,000 back into his superannuation account. The Commissioner took the view that the taxpayer had exceeded the $450,000 contributions limit when he deposited the $100,000 payment within the three-year period following the initial contribution of $430,000, and imposed excess contributions tax on the $80,000 excess.

The taxpayer argued that there were special circumstances as required by s 292-465(3), namely, the global financial crisis, that meant the excess contribution should be ignored by the Commissioner under s 292-465(1).

Without deciding whether the global financial crisis constituted "special circumstances", the AAT held that it still had to consider the matters in s 292-465(6), namely, whether it was reasonably foreseeable that the contribution would exceed the relevant cap on contributions, even in circumstances where the taxpayer, as he himself admitted, did not understand the applicable law.

The AAT said, at para 24:

"I do not expect him to necessarily understand the law himself – I accept it is complex – but I would have thought the taxpayer might have asked for some advice. That advice was readily available. I accept the taxpayer did not foresee the problem, but he should have done so."

The AAT concluded at para 26:

"In all the circumstances, I am not satisfied it would be appropriate to make the determination sought by the taxpayer even if I were satisfied as to the matters referred to in s 292-465(3)."

KFBC and FCT [2013] AATA 577 (AAT, McCabe SM, 16 August 2013).


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