Beverley Dickinson and Commissioner of Taxation
[2012] AATA 762
•22 October 2012
[2012] AATA 762
Division TAXATION APPEALS DIVISION File Number
2012/2675
Re
Beverley Dickinson
APPLICANT
And
Commissioner of Taxation
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC Senior Member Bernard J McCabe
Date 22 October 2012 Date of written reasons 2 November 2012 Place Brisbane The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
SUPERANNUATION – Contributions – Excess contributions tax – Discretion to move excess contribution to another financial year – Discretion to be exercised only where there are special circumstances – Decision under review affirmed
LEGISLATION
Income Tax Assessment Act 1997 (Cth) s 292-465
REASONS FOR DECISION
Deputy President P E Hack SC Senior Member Bernard J McCabe
2 November 2012
The Tribunal delivered itself of oral reasons for a decision it made at the conclusion of the hearing. One of the parties subsequently requested written reasons for the decision. The reasons that follow are based on the transcript of the oral reasons.
The taxpayer in this case made excess contributions into a superannuation fund in the relevant financial year in the circumstances identified in the respondent’s Statement of Facts, Issues and Contentions, paras 3 through 16. That much seems to be uncontroversial, and there is no doubt we have jurisdiction to consider whether a determination should be made, under s 292-465 of the Income Tax Assessment Act 1997 (Cth), that a contribution made in one year of income should be treated as if it were made in another year.
A determination can only be made having regard to the objects of the division, especially the matters in ss 292-465(5) and (6). There is also a requirement that there be special circumstances within the meaning of s 292-465(3). This case is really about special circumstances. That expression requires that there be something different or unusual about this case that would justify it being treated differently from the ordinary run of cases.
We are required to identify something in the facts that makes the taxpayer’s situation unusual, that would justify the making of the determination. So what are the facts that are said to amount to special circumstances in this case? We have the statements of Mr Kelly and Ms Wixted, who were both involved in the financial services industry. They say there was a widespread understanding that the law worked in a particular way. We were referred to some passages from the notes of a meeting of the National Tax Liaison Group in exhibit 7 that were said to support this claim. The taxpayer says there was a widespread misunderstanding at the relevant time as to the operation of the law and it was not until the Commissioner’s position became clear some time later that everyone knew where they stood.
There is a problem with that approach. That evidence suggests, on its face, that everybody was in the same boat. If that is so, there is nothing really special about the taxpayer’s case. There are no special circumstances within the meaning of the legislation that would justify treating the taxpayer differently. The legislation requires us to identify something about this case that marks it out, and on that approach to the evidence, if we accept the taxpayer’s case at its highest, there is nothing. But even if we focus on the provision of wrong advice, whether or not it was widely held advice or whether it was specific to this case, there is nothing in the evidence that suggests this case is marked out in any event as being special. It is not unusual for advisers to give wrong advice.
The law about contribution limits was there to be read and understood. The fact a mistake was made in this particular case is regrettable, but it is not such as to mark it out as being a special case that is different to the others. In those circumstances, whatever the good intentions of the taxpayer that may have been consistent with the objects of the division, we are not in a position to do anything about it because there are no special circumstances in this particular case. That means the decision under review has to be affirmed.
I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Senior Member Bernard J McCabe .......................[Sgd].................................................
Associate
Dated 2 November 2012
Date of hearing 22 October 2012 Advocate for the Applicant Mr Marc Venter Counsel for the Respondent Ms M Brennan Solicitors for the Respondent ATO Legal Practice
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