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The AAT has upheld an excessive contributions tax notice of assessment issue by the Commissioner to the taxpayer in respect of contributions in excess of $1 million made to a superannuation fund ("the second Fund") in the year ended 30 June 2007.

The central issue between the parties was the capacity in which the taxpayer received an amount from another superannuation fund ("the first Fund") that was subsequently paid to the second Fund. The taxpayer argued that she received it in the capacity of trustee of the second Fund and that it was therefore rolled-over from the first Fund to the second Fund, whereas the Commissioner argued that she received it beneficially and in her own right as an eligible termination payment (“ETP”), and that it was therefore a personal contribution when paid to the second Fund.

After reviewing the evidence, the AAT held that the amount was an ETP received by the taxpayer and, accordingly, that the objection decision under review should be affirmed: Player and FCT [2011] AATA 35 (AAT, Block DP, 28 January 2011).


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