The health of the taxpayer's accountant was poor but their accountant said the notice of intent forms would be sent to their superannuation fund.

The accountant's poor health in the 18 months had led to a major health incident and his extremely slow recovery resulted in him being unfit to oversee his client’s affairs. As a result, the notice of intent form had not been lodged with the superannuation fund.

As a consequence, the superannuation fund treated the personal superannuation payments made during the specified income years as non-concessional contributions.

The Commissioner stated in the ruling that a person can claim a deduction for personal contributions made to their superannuation fund to provide superannuation benefits to themselves under section 290-150 of the Income Tax Assessment Act 1997.

However, according to subsection 290-150(2) of the ITAA 1997, all conditions in sections 290-155, 290-165, 290-167, 290-168, 290-169 and 290-170 must be satisfied before the person can claim a deduction for contributions made in that income year.

To claim a deduction for personal superannuation contributions under subsection 290-170(1), a person must provide a valid notice of intent to the trustee of their superannuation fund by the earlier of:

• The date on which you lodged your individual tax return for the income year in which the contribution was made, or
  
• The end of the income year following the income year in which the contribution was made.

“A valid Notice of Intent has not been sent to the superannuation fund. This means that the taxpayer failed to provide a valid Notice of Intent by the [undisclosed dates for both years] when the income tax returns were lodged. The taxpayer also failed to provide a valid Notice of Intent to their superannuation fund by the end of the income years following the [undisclosed] income years when the contributions were made,” the ruling said.

“As the conditions under subsection 290-170(1) have not been satisfied, section 290-150 of the ITAA 1997 does not apply. The Commissioner has no discretion under the ITAA 1997 to allow a personal superannuation contributions deduction. The taxpayer, therefore, cannot claim a personal superannuation contributions deduction for the contributions made in the [undisclosed] income years.”