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The AAT has held that there were no special circumstances that would justify the Commissioner disregarding excess superannuation contributions made by the taxpayer to superannuation funds in the income year ended 30 June 2010. Specifically, there was $30,590.93 in excess concessional contributions and $40,374.68 in excess of non-concessional contributions (the latter included the former by virtue of the operation of s 292-90(1)(b) of ITAA 1997. The Commissioner identified $40,374.68 as the excessive non-concessional amount and this amount was taxed at 46.5%, giving rise to a tax liability of $18,774.22.

One of the superannuation funds of which the taxpayer was a member was a defined benefits fund (the SASS Fund). The taxpayer argued that when making arrangements in respect of the superannuation contributions including salary sacrifice employer contributions in the year ended 30 June 2010, he was unaware of the requirements to take into account notional contributions relating to his defined benefit interest in the defined benefit fund and, on this basis, this constituted special circumstances.

The AAT said, at paras 42 and 43:

"In deciding whether special circumstances apply I am directed to consider whether it was reasonably foreseeable in the circumstances that Mr Griffiths would exceed his concessional contribution limit.

I have indicated that at the time Mr Griffiths made contributions it was reasonably foreseeable that Mr Griffiths would exceed the concessional contribution limit. In particular, information was available at all relevant times and in my view a reasonable person would have sought to access such information and would have been aware or would have become aware that contributions for excess contributions tax purposes includes notional contributions to a defined benefit fund such as the SASS Fund."

The AAT held that special circumstances did not exist.

Griffiths and FCT [2013] AATA 643 (AAT, Professor Deutsch DP, 11 September 2013).


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