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08 Sep 14 Interim Decision Impact Statement - Dowling

The ATO has published an interim Decision Impact Statement in relation to the AAT's decision in Dowling and FCT [2014] AATA 474; 2014 ATC 10-371. The case was remitted to the AAT by the Federal Court - see FCT v Dowling [2014] FCA 252.

The case concerns if it was appropriate to disregard or allocate to another financial year all or part of the non-concessional contributions of the Applicant for a particular financial year, to relieve the Applicant from excess non concessional contributions tax for that year.

At the remittal hearing, the AAT affirmed the Commissioner's objection decision. The AAT decided that having regard to all of the circumstances:

  • there were no special circumstances under paragraph 292-465(3)(a) of the ITAA 1997; and
  • disregarding or reallocating the contribution in whole or in part to another financial year would not be consistent with the object of Div 292 of the ITAA 1997.

The ATO's view of the AAT decision is stated as follows:

"The approach taken by the AAT on remittal of the matter is consistent with the principles stated by the Federal Court, both in this case and in Liwszyc v. Commissioner of Taxation [2014] FCA 112, as to the correct approach to applying the discretion to disregard or allocate contributions to another financial year in accordance with section 292-465 of the ITAA 1997."

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