The case involved a taxpayer who turned 56 in the 2023–24 financial year and who was an Australian resident from 2017–2020 as the holder of a partner visa subclass 100.

In 2021, the taxpayer started work as a government employee in Australia and became an Australian resident for tax purposes in the 2021–22 financial year.

They made no superannuation contributions – concessional or non-concessional – for the financial years before the 2021–22 financial year.

Their concessional contributions in the 2021–22 and 2022–23 financial years were a mix of superannuation guarantee contributions and personal contributions for which a deduction was claimed.

The concessional contributions cap amounts were $25,000 for the 2018–19 to 2020–21 financial years inclusive and $27,500 for the 2021–22 to 2023–24 financial years inclusive.

The taxpayer did not meet or exceed their concessional contributions cap for any of the years from 2018–19 to 2022–23 inclusive and as such, has unused CCC for those five financial years.

They intend to make excess concessional contributions in the 2023–24 financial year. Their total super balance was under the threshold as at 30 June 2023 so they meet the three conditions under subsection 291-20(3) and can increase their CCC for the 2023–24 financial year.

The PBR stated that under 291-20(4), the amount by which the taxpayer can increase their CCC will be limited to their unapplied, unused CCC for each of the previous five financial years which were $25,000 for the 2018–19 to 2020–21 years inclusive; $608.66 for the 2021–22 year; and $2240.88 for the 2022–23 year. These amounts aggregate to $77,849.54 of unapplied unused CCC which may be utilised in the 2023–24 financial year.

“In increasing their CCC for the 2023-24 financial year, the taxpayer will need to apply amounts of unused CCC for previous financial years in order from the earliest year, which in this case is 2018-19, to the most recent year in accordance with 291-20(5),” the ruling stated.