Mills and Commissioner of Taxation (Taxation)

This matter concerned an appeal by Mr Mills against a decision of the Commissioner of Taxation. The dispute centred on whether the Commissioner should have exercised discretion under section 292-465(1)(b) of the *Income Tax Assessment Act 1997* (Cth) to disregard or allocate to another financial year certain non-concessional superannuation contributions made by Mr Mills in the 2012 financial year. The Senior Member of the Administrative Appeals Tribunal was required to determine if the Commissioner's decision not to make such a determination was correct.

The critical legal issue before the Tribunal was whether "special circumstances" existed, which is a prerequisite for the Commissioner to exercise the discretion to disregard or reallocate excess non-concessional contributions. The Tribunal considered the factual background, including Mr Mills' relocation from the UK to Australia, his establishment of a UK pension fund, and his subsequent efforts to transfer these assets to an Australian superannuation fund. The Tribunal noted that the transfer of the UK pension fund assets to VicSuper occurred in the 2010 financial year, resulting in a portion being treated as a non-concessional contribution.

The Tribunal's reasoning focused on the absence of "special circumstances" as defined in the relevant legislation. Having concluded that this pre-condition for discretionary relief was not met, the Tribunal found it unnecessary to consider whether the Commissioner's decision was consistent with the object of Division 292 of the *Income Tax Assessment Act 1997* or whether the discretion ought to have been exercised.

Accordingly, the Tribunal affirmed the decision under review, meaning the Commissioner's original decision was upheld.