Khanna and Commissioner of Taxation (Taxation)

The matter before the Administrative Appeals Tribunal concerned an application by the Applicant for review of a decision by the Deputy Commissioner of Taxation. The dispute centred on the Applicant's entitlement to claim a tax deduction for personal superannuation contributions made for the income year ended 30 June 2019. The Applicant's claim was disallowed by the Commissioner due to the late lodgement of a notice of intent to claim or vary a deduction for personal superannuation contributions.

The Tribunal was required to determine whether the Applicant was entitled to a deduction for personal superannuation contributions, specifically whether the statutory time limit for providing a notice of intent to claim or vary a deduction could be extended or disregarded. The Applicant argued that he should be assisted as a "COVID victim" due to financial hardship and emotional distress stemming from his redundancy, which he contended prevented him from meeting the deadline.

The Tribunal, constituted by M Evans-Bonner SM, found that the Income Tax Assessment Act 1997 (Cth) imposed mandatory requirements for claiming deductions for personal superannuation contributions. Specifically, sections 290-150(2) and 290-170(1) require that a notice of intent to claim or vary a deduction be given to the superannuation fund trustee by a specified time, which in this case was 3 July 2019. The Tribunal held that the word "must" in these provisions indicated an obligation with no discretion to extend the time limit or disregard non-compliance. While acknowledging the Applicant's difficult circumstances due to the COVID-19 pandemic, the Tribunal noted that it exercised the same powers and was subject to the same legislative constraints as the Commissioner and therefore could not grant a discretion that was not provided for in the legislation.

Consequently, the Tribunal declined to dismiss the application on the basis that it had no reasonable prospects of success, opting instead to determine the substantive application. However, the Tribunal ultimately affirmed the Reviewable Decision, concluding that the Applicant was not entitled to the claimed tax deduction because the notice of intent was lodged significantly outside the statutory time limit.