BVZH and Commissioner of Taxation (Taxation)

This matter concerned an application by BVZH (the applicant) for a review of the Commissioner of Taxation's (the respondent) objection decision. The dispute centred on the construction and application of section 292-465 of the *Income Tax Assessment Act 1997* (Cth), which deals with excess non-concessional contributions to superannuation. The applicant sought a determination to disregard or allocate a non-concessional contribution made in the 2019-20 financial year to another financial year, arguing special circumstances applied due to a property settlement following his separation from his wife. The Administrative Appeals Tribunal, with Senior Member R Cameron presiding, considered whether the Commissioner's decision to refuse such a determination should be set aside.

The primary legal issue before the Tribunal was whether the applicant had established "special circumstances" as required by section 292-465(3)(a) of the ITAA. This section, along with the requirement that any determination must be consistent with the object of Division 292, are conjunctive preconditions for the exercise of the Commissioner's discretion to make a determination under section 292-465(1). The applicant bore the burden of proving that the Commissioner's decision was incorrect and that a determination should have been made.

The Tribunal reasoned that the discretion conferred by section 292-465(1) is not enlivened unless both the "special circumstances" limb and the consistency with the object of Division 292 limb are satisfied. The Tribunal found that the applicant had not established special circumstances. While acknowledging the property settlement ordered by the Family Court, the Tribunal noted that the applicant had not demonstrated that he acted carefully or accidentally breached the "bring forward" rule, nor that the consequences were disproportionate to the statute's intended operation. The Tribunal considered it surprising that the applicant, having made a non-concessional contribution for the first time, had not sought further advice or carefully examined the relevant provisions of Division 292.

Consequently, as the absolute precondition of establishing "special circumstances" under section 292-465(3)(a) was not met, the Tribunal concluded that the discretion to make a determination was not enlivened. Therefore, the Tribunal affirmed the objection decision made by the respondent.