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INCOME TAX ASSESSMENT ACT 1997 - SECT 292.465

Commissioner's discretion to disregard contributions etc. in relation to a financial year

  (1)   If you make an application in accordance with subsection   (2), the Commissioner may make a written determination that, for the purposes of this Division and Subdivision   97 - B in Schedule   1 to the Taxation Administration Act 1953 , all or part of your * non - concessional contributions for a * financial year is to be:

  (a)   disregarded; or

  (b)   allocated instead for the purposes of another financial year specified in the determination.

  (2)   You may apply to the Commissioner in the * approved form for a determination under subsection   (1). The application can only be made:

  (a)   after all of the contributions sought to be disregarded or reallocated have been made; and

  (b)   if you receive one or more * excess non - concessional contributions determinations for the * financial year--before the end of:

  (i)   the period of 60 days starting on the day you receive the most recent of those determinations; or

  (ii)   a longer period allowed by the Commissioner.

  (3)   The Commissioner may make a determination under subsection   (1) only if he or she considers that:

  (a)   there are special circumstances; and

  (b)   making the determination is consistent with the object of this Division.

  (4)   In making a determination under subsection   (1) the Commissioner may have regard to the matters in subsections   (5) and (6) and any other relevant matters.

  (5)   The Commissioner may have regard to whether a contribution made in the relevant * financial year would more appropriately be allocated towards another financial year instead.

  (6)   The Commissioner may have regard to whether it was reasonably foreseeable, when a relevant contribution was made, that you would have * excess concessional contributions or * excess non - concessional contributions for the relevant * financial year, and in particular:

  (a)   if the relevant contribution is made in respect of you by another person--the terms of any agreement or arrangement between you and that person as to the amount and timing of the contribution; and

  (b)   the extent to which you had control over the making of the contribution.

  (7)   The Commissioner must give you a copy of a determination made under subsection   (1).

Review

  (9)   If you are dissatisfied with:

  (a)   a determination made under this section in relation to you; or

  (b)   a decision the Commissioner makes not to make such a determination;

you may object against the determination, or the decision, as the case requires, in the manner set out in Part   IVC of the Taxation Administration Act 1953 .

  (10)   To avoid doubt:

  (a)   subject to subsection   14ZVC(3) of the Taxation Administration Act 1953 , you may also object, on the ground that you are dissatisfied with such a determination or decision, relating to all or part of your * non - concessional contributions for a * financial year:

  (i)   under section   175A of the Income Tax Assessment Act 1936 against an assessment made in relation to you for the corresponding income year; or

  (ii)   under section   97 - 35 in Schedule   1 to the Taxation Administration Act 1953 against an * excess non - concessional contributions determination made in relation to you for the financial year; and

  (b)   for the purposes of paragraph   (e) of Schedule   1 to the Administrative Decisions (Judicial Review) Act 1977 , the making of a determination under this section is a decision forming part of the process of making an assessment of tax, and making a calculation of charge, under this Act.


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