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The AAT has held that there were no special circumstances within the meaning of s 292-465(3)(a) ITAA 1997 that would justify the Commissioner making a determination to disregard or allocate certain excess concessional superannuation contributions made by the taxpayers in the 2009 financial year to another financial year. Accordingly, the taxpayers were liable to excess concessional contributions tax.

The taxpayers were directors and employees of a company (WES) during each of the financial years ending 30 June 2007, 2008, 2009 and 2010. WES made contributions to the superannuation funds of which each was a member. There was a history of contributions that were made towards the end of a financial year being recorded as received after the end of the financial year.

The AAT said, at para 95:

"In this case, I am not satisfied that [the taxpayers'] circumstances are special. They were not newcomers to superannuation contributions having made them to one fund or another in at least the 2008 financial year as well as the 2009. As directors of WES, they were the controlling minds of their employer. Unlike George [sic] in the Commissioner’s example in TR 2010/1...they were not subject to the vagaries of their employer. They were in a position to control and rectify any vagaries."

The AAT said, at paras 96-97, that two things should have come to the attention of the taxpayers when they received their Member Statements from the superannuation fund.

"The first was that, except in relation to December 2007, the payments made in respect of each month were not received until after the end of the month in respect of which they were paid...The second thing to notice is that the amounts were attributed not to the months for which they were due but in respect of the month in which they were received."

The Commissioner's objection decisions were affirmed.

Hope and FCT [2014] AATA 877 (AAT, Forgie DP, 26 November 2014).

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