“There’s a case going on at the moment where the ATO has sought some clarification on this issue and the tribunal has ruled they do have jurisdiction to hear these claims,” said Mr Burgess.

The ATO has stated the decision is consistent with its long standing practices anyway, he added.

“The other interesting part to this was that the ATO pointed out there is now a difference in the objection rights that tax payers have as a result of the new refunding of excess non-concessional contributions,” Mr Burgess said.

“Where they do seek a refund of a non-concessional excess contribution then they can’t object against the commissioner’s decision not to exercise discretion or the way that discretion was exercised.

“However, they do have the right to object against a tax assessment notice under [current law], so it’s a slightly different approach.

“What they are objecting against would be their tax assessment, so it’s a slightly different process they would have to go through as a result of a refund situation,” he said.