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The AAT has held that no "special circumstances" existed for the purposes of s 292-465(3) of ITAA 1997 which would enable the taxpayer to have his excess non-concessional superannuation contribution reallocated to the financial year ending 30 June 2014.

The taxpayer made excess non-concessional contributions of $23,627.00 in the financial year ending 30 June 2010.

Specifically, the taxpayer made non-concessional contributions of $176,101.00 in the year ending 30 June 2008, $147,544.00 in the year ending 30 June 2009 and $149,982.00 in the year ending 30 June 2010. Pursuant to ss 292-85(2) to (4) of ITAA 1997, the taxpayer was entitled to make aggregate contributions of $450,000.00 over three years, in this instance, from 2008 to 2010. The contributions made in the year ending June 2010 exceeded the cap by $23,627.00.

The Commissioner issued an excess contributions tax notice of assessment to the applicant for $10,986.55.

The taxpayer acknowledged to the AAT that he would have been aware of the $450,000.00 cap applicable over three years but said he overlooked or forgot about it when making the third of the three contributions in question. The Commissioner did not dispute that the error arose from a simple oversight by the applicant.

The taxpayer contended that special circumstances existed for the purposes of s 292-465(3) of ITAA 1997. This was based primarily on the financial hardship which he was experiencing in supporting two adult children and five grandchildren; a commitment to provide for his wife who was significantly younger in years; the impact of the global financial crisis on his personal finances; and, specifically, the consequences of a failed investment opportunity.

The AAT said, at para 15:

"The applicant's [taxpayer's] difficult personal situation is not one which, in an unusual or uncommon way, would have directly affected his ability to manage his financial affairs. In this regard, it is important to emphasise that the Tribunal is not unsympathetic towards the personal challenges confronting the applicant in his daily life – but put simply, such circumstances are not what the legislation contemplates when it refers to special circumstances. The legislation contemplates circumstances which are inconsistent with a natural and foreseeable sequence of events. It does not contemplate circumstances which are of special significance to the taxpayer but not unique to an individual in the taxpayer's position."

The AAT affirmed the Commissioner's objection decision on the assessment: Lynton and FCT [2012] AATA 667 (AAT, Dr Hughes M, 2 October 2012).


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