Aston and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal considered the case of Aston and the Commissioner of Taxation. The dispute concerned the Applicant's objection to the Commissioner's decision not to exercise discretion to reallocate excess concessional superannuation contributions of $24,999.81 from the 2019-2020 financial year to the 2018-2019 financial year. The Applicant, the sole director of a company, had made a superannuation contribution on 26 June 2019, which was received by the superannuation fund on 1 July 2019, thus falling into the 2019-2020 financial year and exceeding his concessional contributions cap.

The Tribunal was required to determine whether the discretion provided by section 291-465(1) of the *Income Tax Assessment Act 1997* (ITAA 1997) should be exercised. This involved assessing whether "special circumstances" existed, as required by section 291-465(2)(a), and whether exercising the discretion would be consistent with the objects of Divisions 291 and 292 of the ITAA 1997, as per section 291-465(2)(b). If these threshold conditions were met, the Tribunal would then consider whether the discretion ought to be exercised, having regard to the matters in section 291-465(3).

The Tribunal applied the principles established in *Commissioner of Taxation v Dowling*, noting that the discretion is not unfettered and requires the Commissioner (or Tribunal) to consider that special circumstances exist and that the action is consistent with the legislative objects. The Tribunal found that while the Applicant presented several factors, including the departure of a trained bookkeeper, the illness of his accountant, perceived misleading information on the superannuation fund's website, and the multi-stage payment process, these did not constitute "special circumstances" in the sense of being unusual, uncommon, or exceptional. The Tribunal agreed with existing precedent that special circumstances must be markedly different from the usual run of cases and render the strict application of the rule unfair, inappropriate, or unjust. The Applicant's expectation regarding the timing of the direct debit payment, based on his banking experience, was not considered sufficient to meet this high threshold.

Ultimately, the Tribunal concluded that the criteria for exercising the discretion under section 291-465(1) of the ITAA 1997 were not met. Consequently, the Applicant had not discharged his onus of proof to establish that the objection decision should have been made differently. The Tribunal affirmed the decision under review and refused to reallocate the excess concessional contributions.