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The AAT has held that it did not have jurisdiction to review the Commissioner’s refusal to make a determination under s 292-465 of of ITAA 1997 either to disregard excess non-concessional superannuation contributions made by the taxpayers (Mr and Mrs McMennemin) or to allocate them for the purposes of another financial year. The AAT said, at para 4:

"It is a decision on an application that could have changed the factual substratum on which the provisions of ITAA97 relating to Mr and Mrs McMennemin’s liability to ECT were given concrete application. In order to change it, the Commissioner would have had to make a determination on the application. The factual substratum is the basis on which the Commissioner applies the provisions of the ITAA97 relating to their liability to pay ECT and ascertains the amount, if any, of that tax. The basis is not the process by which the assessment is made. As it is only the assessment that can be the subject of the Tribunal’s review when it reviews the Commissioner’s objection decision, it cannot review the Commissioner’s decision not to make a determination. I would have come to the same conclusion even if the Commissioner had made a determination and Mr and Mrs McMennemin had not been satisfied with it."

However, in the event that the AAT was wrong in this regard, the AAT went on to consider whether there were special circumstances for the purposes of exercising the Commissioner's discretion under s 292-465 but concluded that it was not satisfied that the circumstances in which Mr and Mrs McMennemin found themselves were special circumstances.

McMennemin and FCT [2010] AATA 573 (AAT, Forgie DP, 3 August 2010).


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