Jacobs and Commissioner of Taxation (Taxation)

The matter concerned an appeal by Mr Nicholas Jacobs against an excess transfer balance tax liability determined by the Commissioner of Taxation. Mr Jacobs had sought advice from the Australian Tax Office regarding the calculation of his superannuation transfer balance cap, particularly in relation to a Commonwealth Superannuation Scheme (CSS) annuity. Following advice from the ATO and reports lodged by superannuation administrators, an Excess Transfer Balance determination was issued, indicating Mr Jacobs had exceeded the $1.6 million cap by $30,194.53.

The primary legal issue before the Tribunal was whether Mr Jacobs had discharged his onus, as stipulated by section 14ZZK(b)(i) of the *Taxation Administration Act 1953* (Cth), to prove that the Commissioner's assessment of his excess transfer balance tax liability was excessive or otherwise incorrect. This involved determining the correct value of Mr Jacobs' transfer balance on 1 July 2017 and whether any transitional provisions applied to alleviate his tax obligation.

The Tribunal found that Mr Jacobs' transfer balance on 1 July 2017, calculated as the sum of his CSS annuity's "special value" and his AustralianSuper account balance, totalled $1,630,194.53, exceeding the $1,600,000 cap by $30,194.53. The Tribunal noted that the excess transfer balance did not reduce to nil until after 31 December 2017, meaning transitional provisions did not assist Mr Jacobs. Applying the principle from *Federal Commissioner of Taxation v Dalco* (1990) 168 CLR 614, the Tribunal held that Mr Jacobs had failed to prove the assessment was incorrect, as his acknowledgement of an error in calculation and the ATO's prior provision of relevant information did not satisfy his evidentiary burden. The Tribunal also noted the absence of any legislative discretion to waive the tax liability in such circumstances.

Consequently, the Tribunal affirmed the decision under review, finding that Mr Jacobs had failed to establish that the assessment of his excess transfer balance tax liability was excessive.