Nicholls and Commissioner of Taxation (Taxation)

[2023] AATA 2772

Nicholls and Commissioner of Taxation (Taxation) [2023] AATA 2772 (31 August 2023)

Division:TAXATION AND COMMERCIAL DIVISION

File Number:2022/8767          

Re:Robert Nicholls  

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:31 August 2023

Place:Brisbane

The Tribunal affirms the decision under review.

…………………[SGD]………............

Member D Mitchell

CATCHWORDS

TAXATION – deductions – personal superannuation contributions – notification of intention to claim deduction – time frame for notification – whether discretion exists to extend the tie for notification or to disregard failure to notify – decision under review affirmed

LEGISLATION

Income Tax Assessment Act 1997 (Cth)

Taxation Administration Act 1953 (Cth)

Superannuation (Excess Concessional Contributions Tax) Act 2006 (Cth)

Superannuation (Excess Non-Concessional Contributions Tax) Act 2006 (Cth)

SECONDARY MATERIALS

Explanatory Memorandum to Tax Laws Amendment (Simplified Superannuation) Bill 2006 (Cth)

REASONS FOR DECISION

Member D Mitchell

31 August 2023

INTRODUCTION

1. Mr Robert Nicholls (the Applicant) is seeking review[1] of an Objection Decision of the Commissioner of Taxation (the Respondent) dated 14 October 2022.[2]

   [1] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.

   [2] Exhibit 1, T Documents, T2, pages 7-10, Notice of Decision and Reasons for Decision.

2. The reviewable objection decision disallowed the Applicant’s objection to the amended notice of assessment for the income year ended 30 June 2021 (the 2021 income year) which was issued as a result of the Respondent’s decision to disallow his claimed deduction for personal superannuation contributions.[3]

   [3] Exhibit 1, T Documents, T2, pages 7-10, Notice of Decision and Reasons for Decision.

   BACKGROUND

3. The facts in this matter are not in dispute.

4. During the 2021 income year the Applicant made a number of personal superannuation contributions (PSC) to Health Employees Superannuation Trust Australia (HESTA) totalling $6,500.  The contributions were made as follows:[4]

   [4] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 6 and Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions, page 2, paragraph 6.

Transaction date	Applicant’s PSC amount
01 July 2020	$550.00
30 July 2020	$600.00
27 August 2020	$550.00
30 September 2020	$550.00
29 October 2020	$550.00
27 November 2020	$550.00
29 January 2021	$550.00
31 March 2021	$1,000.00
3 May 2021	$550.00
1 June 2021	$550.00
30 June 2021	$550.00
Total	$6,550.00

1. Sometime before 9 June 2021, the Applicant submitted a ‘Notice of intent to claim or vary a deduction for personal super contributions’ (section 290-170 Notice) (First Notice) pursuant to section 290-150(2) of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997) to HESTA.  The notice advised HESTA that the Applicant intended to claim a PSC deduction for $6,550.00 for the 2021 income year.[5]

   [5] Exhibit 6, Applicant’s Affidavit, page 1, paragraph 3.

2. On 9 June 2021, HESTA acknowledged receipt of the notice. They advised that they were unable to accept the notice because their records indicated that the amount of contributions listed in the notice was different to the amount of the contributions received. HESTA advised they had received $6,000.00 as undeducted contributions.  HESTA asked the Applicant to verify the amount of undeducted contributions in his HESTA account and complete a new form.[6]

   [6] Exhibit 1, T Documents, T3, page 11, Letter from HESTA.

3. Sometime between 9 June 2021 and 16 July 2021 the Applicant resubmitted a section

   
   

   290-170 Notice to HESTA via post (Second Notice) that provided notice that he intended to claim PSC for the amended amount $6,000.00.[7]

   [7] Exhibit 6, Applicant’s Affidavit, page 2, paragraph 6.

4. On 14 July 2021, the Applicant lodged his 2021 income tax return claiming a PSC deduction of $6,000.00.[8]

   [8] Exhibit 1, T Documents, T4, pages 12-46, Applicant’s Income Tax Return.

5. On 22 July 2021, the Respondent issued a notice of assessment for the 2021 income year to the Applicant which had taken into consideration the PSC deduction of $6,000.00.[9]

   [9] Exhibit 1, T Documents, T5, pages 47-50, Notice of assessment – year ended 30 June 2021.

6. On 30 August 2021, HESTA issued the Applicant’s 2020-2021 annual membership statement that showed that he had made a total of $6,550.00 PSC into his account during the 2021 income year.[10]

   [10]

7. On 22 August 2021, the Respondent notified the Applicant that his 2020/2021 Superannuation Contribution had been adjusted, disallowing his claimed PSA deduction. The reason being that HESTA had not reported an acknowledged Notice of Intent that matched his 2021 PSC deduction.[11]

   [11] Exhibit 5, Applicant’s Outline of Submissions, page 3, paragraph 10.

8. On 22 August 2021, the Applicant contacted the Respondent to discuss the email he received and was advised to contact HESTA to clarify the error.[12]

   [12] Exhibit 1, T Documents, T8, page 96, Respondent’s record of inbound call from the Applicant.

9. On 22 August 2021, the Applicant contacted HESTA requesting them to provide an acknowledgement of Notice of Intent to Claim to the Respondent in relation to the Second Notice.[13]

   [13] Exhibit 1, T Documents, T11, page 122, Email chain between the Applicant and HESTA.

10. On 24 August 2021, HESTA advised the Applicant that they had not received the Second Notice.[14]

    [14] Exhibit 1, T Documents, T11, pages 122, Email chain between the Applicant and HESTA.

11. On 29 August 2022, the Respondent issued a notice of amended assessment for the year ended 30 June 2021[15] to the Applicant resulting in the Applicant being required to pay a further $2,306.74 in income tax for the 2021 income tax year.[16]  The amended assessment disallowed the PSC deduction, reducing the PSC contribution claimed by the Applicant to nil.

    [15] Exhibit 1, T Documents, T9, pages 97-100, Notice of amended assessment – year ended 30 June 2021.

    [16] Exhibit 1, T Documents, T9, pages 97-100, Notice of amended assessment – year ended 30 June 2021.

12. The Applicant lodged a further section 290-170 Notice with HESTA by email on

    
    

    14 September 2022 (Third Notice) which was rejected by HESTA on the basis that the time limit set out in section 290-170(1) of the ITAA 1997 had already passed for the 2021 income year.[17]

    [17] Exhibit 1, T Documents, T11, page 116, Email chain between the Applicant and HESTA.

13. On 23 September 2021, the Respondent received the Applicant’s objection to the amended assessment.[18]

    [18] Exhibit 1, T Documents, T12, page 127, Respondent’s record of SMS message sent to the Applicant  confirming receipt of objection.

14. On 14 October 2022, the Respondent disallowed the Applicant’s objection.[19]

    [19] Exhibit 1, T Documents, T2, pages 7-10, Notice of Decision and Reasons for Decision.

15. On 23 October 2022, the Applicant lodged an Application for Review of the objection decision with the Tribunal.[20]

    [20] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.

16. A Hearing was conducted on 27 July 2023.  At the Hearing, the Applicant was self-represented, appeared by MS Teams and gave evidence under affirmation.

    THE LAW

17. Subdivision 290-C of the ITAA 1997 deals with deductions in relation to personal superannuation contributions.

18. Section 290-150 of the ITAA 1997 provides that a taxpayer can deduct a contribution they make to a superannuation fund or a Retirement Savings Account (RSA), for the purposes of providing superannuation benefits for themselves as long as the conditions set out in sections 290-155, 290-165, 290-167, 290-168, 290-169 and 290-170 of the ITAA 1997 are satisfied. A deduction is only available for the income year in which the contribution is made.[21]

    [21] Section 290-150(3) of the ITAA 1997.

19. There is no dispute that the Applicant made PSC in the 2021 income year and met the conditions set out in sections 290-155, 290-165, 290-167, 290-168 and 290-169 of the ITAA 1997.

20. The dispute relates to section 290-170 of the ITAA 1997 which relevantly provides:

    Deductibility of contributions

    (1)  To deduct the contribution, or a part of the contribution:

    (a)  you must give to the trustee of the fund or the *RSA provider a valid notice, in the *approved form, of your intention to claim the deduction; and

    (b)  the notice must be given before:

    (i)  if you have lodged your *income tax return for the income year in which the contribution was made on a day before the end of the next income year—the end of that day; or

    (ii)  otherwise—the end of the next income year; and

    (c)  the trustee or provider must have given you an acknowledgment of receipt of the notice.

    Validity of notices

    (2)  The notice is not valid if at least one of these conditions is satisfied:

    (a)  the notice is not in respect of the contribution;

    (b)  the notice includes all or a part of an amount covered by a previous notice;

    (c)  when you gave the notice:

    (i)  you were not a member of the fund or the holder of the *RSA; or

    (ii)  the trustee or *RSA provider no longer holds the contribution; or

    (iii)  the trustee or RSA provider has begun to pay a *superannuation income stream based in whole or part on the contribution;

    (d)  before you gave the notice:

    (i)  you had made a contributions‑splitting application (within the meaning given by the regulations) in relation to the contribution; and

    (ii)  the trustee or RSA provider to which you made the application had not rejected the application;

    (e)  if the contribution is made to a *superannuation fund—the condition in section 290‑155 is not satisfied in relation to the fund and the contribution.

    Acknowledgment of notice

    (3)  The trustee or provider must, without delay, give you an acknowledgment of a valid notice, subject to subsection (4).

    (4)  The trustee or provider may refuse to give you an acknowledgment of receipt of a valid notice if the *value of the *superannuation interest to which the notice relates, at the end of the day on which the trustee or *RSA provider received the notice, is less than the tax that would be payable in respect of your contribution (or part of the contribution) if the trustee or provider were to acknowledge receipt of the notice.

21. Where a taxpayer is dissatisfied with an assessment, determination, notice or decision they may object against it in accordance with the requirements set out in Part IVC of the Taxation Administration Act 1953 (Cth) (TAA 1953).[22]

    [22] Section 14ZLof the TAA 1953.

22. The Respondent must decide whether to allow, wholly or in part, or disallow the taxpayer’s objection.[23]

    [23] Section 14ZY of the TAA 1953.

23. A taxpayer who is dissatisfied with the Respondent’s objection decision may apply to the Tribunal for a review of the decision or appeal to the Federal Court against it.[24]

    [24] Section 14ZZ of the TAA 1953.

24. Section 14ZZK of the TAA 1953 provides that on application for review of a reviewable objection decision:

    (a)  the applicant, is unless the Tribunal orders otherwise, limited to the grounds stated in the taxation objection to which the decision relates; and

    (b)  the applicant has the burden of proving:

    (i)    if the taxation decision concerned is an assessment – that the assessment is excessive or otherwise incorrect and what the assessment should have been; or

    (ii)   in any other case – that the taxation decision concerned should not have been made or should have been made differently.

25. As such, to be successful in this matter the onus falls on the Applicant to prove that on the balance of probabilities he was entitled to claim a deduction for PSC made in the 2021 income year.

    ISSUES

26. The issues before the Tribunal are whether the Applicant has discharged his onus to prove that the amended assessment for the 2021 income year was excessive or otherwise incorrect.

27. To answer this question the Tribunal must consider whether:

    (a)a valid section 290-170 notice was lodged with HESTA within the time limit set out in section 290-170(1) of the ITAA 1997 in relation to the claimed deduction of $6,000.00 for PSC made in the 2021 income year,

    (b)

    HESTA gave the Applicant an acknowledgement of receipt of the valid section

    
    

    290-170 notice as required by section 290-170(1)(c) of the ITAA 1997,

    (c)there is discretion to extend the time limit for the Applicant to provide a valid section 290-170 notice pursuant to section 290-170(1) of the ITAA 1997,

    (d)there is discretion to disregard any failure by the Applicant to comply with sections 290-150 or 290-170 of the ITAA 1997.

    APPLICANT’S CONTENTIONS

28. Ahead of the Hearing the Applicant provided a Statement of Issues, Facts and Contentions,[25] Outline of Submissions[26] and Affidavit.[27]  The Tribunal acknowledges the effort put into these documents by the Applicant and commends him on the high quality of his submissions.

    [25] Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions.

    [26] Exhibit 5, Applicant’s Outline of Submissions.

    [27] Exhibit 6, Applicant’s Affidavit.

29. The Applicant’s contentions were concisely outlined in his Outline of Submissions as follows:[28]

    [28] Exhibit 5, Applicant’s Outline of Submissions, pages 5-7, paragraphs 23-31.

    23.The Applicant lodged a valid Section 290-170 Notice (First Notice) before 14 July 2021, with HESTA as it was acknowledged by them as being received as is required Section 290-170 (2),(3) of the ITAA 1997.  They did not categorically declare that the First Notice was invalid, only requesting the Applicant to verify the amount of undeducted contributions.  Had HESTA processed the First Notice claiming $6550 once the 2021 income year was completed, as would be reasonably expected, there would have not been a requirement to verify the amount stated in the First Notice.  As seen in Table 1.

    24.The Applicant varied the original valid notice verifying the $6000 amount with HESTA in accordance with Section 290-180 (1),(2) and posted the Second Notice to HESTA before 14 July 2021.  An affidavit stating the Applicant, to the best of his knowledge, did submit a second Section Notice (see Applicant’s bundle of affidavits).

    25.The Commissioner issued the First Assessment on 22 July 2021.  There was no reference in the Assessment to not receiving a Notice of Intent to Claim (NOI) from HESTA, so it was understood the Second Notice had arrived and been duly processed by HESTA.

    26.The Applicant contends that, the Commissioner should have communicated prior to the end of the income year following the income year in which the contributions were made – which was 30 June 2022, to the Applicant the error and allowed the Applicant time to amend his 2020/21 tax return to reflect the details of the valid First Notice or Second Notice before issuing an Amended Assessment.

    27.Upon receiving the Amended Assessment, the Applicant submitted a Third Notice, as noted in Facts (15).

    28.In issuing the Amended Notice on 29 August 2022, The Commissioner prevented the Applicant’s superannuation provider from wilfully issuing the required Notice of Intent to Claim or vary a deduction for PSC to the Commissioner, due to time constraints 290-170 (1).  The Applicant should have been afforded sufficient time to amend his 2020/21 Tax Return to vary the PSC deduction claimed as could be interpreted in the Australian Tax Office official webpage

    Section “Deduction”, paragraph five

    “If we disallow a deduction your member has claimed, the member may vary the notice to reduce their claim …. This variation is not subject to the above timeframes.”

    29. The Applicant has a clear history of PSC, of which he has used the same superannuation provider as displayed in the table below which documents the amount claimed in each of his tax returns for the last six financial years. ……

    30.The applicant lodged with HESTA on three separate occasions Section 290/170 Notices for the 2021 income year.  Each one being valid in their form and therefore the Applicant believes he fulfilled all criteria required to make a PSC, as per Sections 290/150-170 of the ITAA 1997.

    31.The Applicant submits that the Commissioner incorrectly interpreted Section 290-150 and 290-170 of the Income Tax Assessment Act 1997 in making its decision to disallow the Applicant’s Objection form against an Amended Assessment he received on 29 August 2022.

30. At the Hearing the Applicant’s evidence was consistent with the contentions set out above, in addition he told the Tribunal that:

    ·In lodging the First Notice he had posted the form by regular post and had the expectation that it may take between two and four weeks to arrive, by which time he would have made the final contribution for the year and his total contributions would have been $6,550.00.

    ·He was not aware in 2021 that there was a requirement that HESTA provide an acknowledgment and he thought all was in order in relation to the Second Notice as he lodged his income tax return, it was processed and the deduction was allowed.

    ·He did send HESTA the Second Notice.

    ·He is now being punished because HESTA or Australia Post lost the form.  If the Second Notice was received, he would then have met the notification requirements.

    ·He did what he thought was required of him by tax law.

    ·Most of the years he has made PSC and claimed relating deductions he had used a tax agent so was not aware of the notification timeframes and acknowledgement requirements, so he previously had not had a reason to take any notice whether or not he received an acknowledgment from HESTA in relation to his notification of intention to claim a tax deduction.

    RESPONDENT’S CONTENTIONS

31. The Respondent submitted at the Hearing that they accepted the evidence set out by the Applicant in his Affidavit and did not intend to cross examine him.

32. Ahead of the Hearing the Respondent filed a Statement of Facts, Issues, and Contentions[29] and an Outline of Submissions[30] together with a bundle of authorities.[31] The Respondent set out their contentions as follows:[32]

    [29] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions.

    [30] Exhibit 4, Respondent’s Outline of Submissions.

    [31] Exhibit 7, Respondent’s Updated Bundle of Authorities.

    [32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, pages 5-7, paragraphs 26-31.

    26.Subsection 290-150(2) of the ITAA 1997 states that, among other provisions, section 290-170 of the ITAA 1997 must be satisfied for a taxpayer to deduct PSC made in that income year under subsection 290-150(1).

    27.To meet the criteria of paragraph 290-170(1)(b) the Applicant was required to lodge a valid Section 290-170 Notice, on the earlier of:

    (a)   the date on which he lodged his income tax return for the 2021 income year – which was 14 July 2021; or

    (b)   the end of the income year following the income year in which the contributions were made – which was 30 June 2022.

    28.This means the Applicant cannot claim a deduction unless he proves he lodged a valid Section 290-170 Notice with HESTA before 14 July 2021.

    29.The Commissioner contends the Applicant did not meet the requirements of paragraphs 290-170(1)(b) or (c) and is therefore not entitled to claim the deduction of $6,000 for PSC made in the 2021 income year for the following reasons.

    (a)   The Applicant lodged the First Notice with HESTA prior to 14 July 2021, however HESTA found that this notice was invalid as it was for an amount greater than the amount of PSC the Applicant had made to his account that income year.

    (b)   The PSC amount claimed by the Applicant in the First Notice ($6,550.00) exceeded the amount recorded by HESTA at 9 June 2021.

    (c)   Whilst the Applicant claims he lodged the Second Notice with HESTA before lodging his income tax return on 14 July 2021 , HESTA has also stated there is no record of such notice being received. 

    (d)   To satisfy paragraph 290-170(1)(c), the trustee or provider (HESTA) is required to give the taxpayer (the Applicant) an acknowledgement of receipt of the valid Section 290-170 Notice for the taxpayer to be entitled to deduct the PSC made. HESTA has not provided such acknowledgement of receipt.

    (e)   The Third Notice the Applicant gave to HESTA (on 14 September 2022) occurred after the earlier time limit set out in subsection 290-170(1) of the ITAA 1997 (being 14 July 2021) and was not accepted by HESTA.

    30.In the circumstances, the Commissioner contends there is insufficient evidence to prove that the Applicant lodged the required notice with HESTA before 14 July 2021, and further, HESTA has not provided acknowledgement of receipt of a valid Section 290-170 Notice before the Applicant lodged his 2021 income tax return, or at all. 

    31.The Commissioner, and the Tribunal standing in the shoes of the Commissioner, has no discretion at law:

    (a)   to extend the time limit for provision of a valid Section 290-170 Notice by the Applicant to HESTA pursuant to paragraph 290-170(1)(b) of the ITAA 1997;

    (b)   to waive the requirement for HESTA to give the Applicant an acknowledgement of receipt pursuant to paragraph 290-170(1)(c) of the ITAA 1997; and

    (c)   to ignore any failure by the Applicant to comply with sections 290-150 or 290-170 of the ITAA 1997.

1. At the Hearing the Respondent confirmed the contentions set out above and further submitted that while it was empathetic to the Applicant’s situation, they contend that there is no discretion available to them in circumstances where the requirements of section

   
   

   290-170(1) of the ITAA 1997 are not met.

   CONSIDERATION

2. Division 290-C of the ITAA 1997 was amended as part of the Government’s 2006 reform to simplify and streamline the superannuation system. The reforms allowed from 1 July 2007, self-employed and other eligible individuals to claim a full deduction for superannuation contributions provided certain conditions were met.[33]

   [33]

3. Notification requirements were amended providing a clear intention that notification must occur at the earlier of the time the person lodges their income tax return or the end of the financial year following the year the contribution was made. The Explanatory Memorandum to the Tax Laws Amendment (Simplified Superannuation) Bill 2006 (Cth)[34] provided:[35]

   Notice requirements

   1.51      An individual who wishes to claim a tax deduction for their superannuation contributions will continue to be required to notify the trustee or RSA provider in writing.  The notice arrangements are being revised to ensure that the Australian Taxation Office (ATO) will have the relevant information to administer the new contribution caps (ie, the concessional contributions cap and the non-concessional contributions cap) and to determine eligibility for the co-contribution, following extension of the co-contribution to the self-employed.

   1.52    This notice will now be required to be given by the earlier of the time the person lodges their income tax return or the end of the financial year following the year the contribution was made.  This notice may be varied in limited circumstances (see paragraph 1.58).  This will assist the Commissioner of Taxation (Commissioner) administration of the new contribution caps, and reduce the administrative burdens on superannuation funds and RSAs.  [Schedule 1, item 1, section 290-170]

   1.53      A notice will not be valid in certain circumstances.  These circumstances have been expanded to include when a notice is given to the trustee or RSA provider, where it either no longer holds the contribution or has begun to pay a superannuation income stream that includes the contribution.  [Schedule 1, item 1, subsection 290-170(2)]

   [34] Later enacted as – Superannuation (Excess Concessional Contributions Tax) Act 2006 (Cth); Superannuation (Excess Non-Concessional Contributions Tx Act 2006 (Cth).

   [35] Explanatory Memorandum to Tax Laws Amendment (Simplified Superannuation) Bill 2006 (Cth), page 19, paragraphs 1.51-1.53.

4. The requirements of section 290-170 are clear.  In order to claim a deduction for PSC, a valid notice must be given to the relevant superannuation fund by the earliest of either the day on which the income tax return for the income year in which the contribution was made was lodged or the end of the next income year and that notice must be acknowledged by the superannuation fund.

5. In this case the Tribunal considers that in order to claim a deduction for the $6,000.00 PSC he made in the 2021 income year, the Applicant must have:

   a)made a valid notification to HESTA of his intention to claim a deduction of $6,000.00 in relation to PSC made by the end of 12 July 2021 (being the day on which he lodged his income tax return; and

   b)received an acknowledgement of receipt of that notice from HESTA.

6. The Applicant contended that the First Notice was a valid notification as he expected to have made the additional contribution of $550.00 by the time the notice was received by HESTA. He said that he did not consider HESTA’s letter of 9 June 2021 in relation to that notice to say that it was an invalid notice.

7. The Tribunal disagrees. The approved form titled ‘Notice of intent to claim or vary a deduction for personal super contributions’[36] which the Applicant says he completed, requests that the person, amongst other things, declare at the time of signing the form that the identified super fund currently holds the contributions.

   [36] Exhibit 8, Notice of intent to claim or vary a deduction for personal super contributions.

8. At the time of completing the form, the Applicant had not made PSC in the amount of $6,550.00, he had made PSC in the amount of $6,000.00.  As such, in line with section

   
   

   290-170(2)(a) of the ITAA 1997, the First Notice could not be valid as it was not in respect of the contributions he had made. Further, the Tribunal considers that in the letter of 9 June 2021 HESTA made it clear that it did not consider the Applicant’s notification to be valid, albeit they expressed that point in a perhaps non-direct manner. HESTA did advise that they were unable to accept the Applicant’s notice, the reasons why and provided him with a new notification form, asked that he verify his contributions and submit a new form.[37]

   [37] Exhibit 1, T Documents, T3, page 11, Letter from HESTA.

9. While the Tribunal accepts that the Applicant posted the Second Notice to HESTA, the fact of the matter is that HESTA say that it was never received and as such no acknowledgment of a valid notice was provided in relation to his intention to claim a deduction of $6,000.00 in relation to PSC made in the 2021 income year.

10. Section 290-170(1) of the ITAA 1997 makes it clear that in order to be able to deduct a contribution, as well as, a valid notice made within the prescribed timeframe, a person also receive an acknowledgment of receipt of the notice by the superannuation fund.

11. In lodging a tax return before receiving that acknowledgement from the superannuation fund a person takes the risk that they may not meet the section 290-170(1) of the ITAA 1997 requirements should their notification not have been received in time by the superannuation fund or is considered not to be a valid notification.

12. While the Tribunal understands the Applicant’s contentions with regards to the timing of the amendment of his income tax return and issuing of an amended notice of assessment by the Respondent, it considers those contentions to be misguided.  Once the Applicant lodged his income tax return for the 2021 income year the time frame in which a valid notice of intention to claim a deduction for PSC made that year had expired.

13. It is clear to the Tribunal that there is no discretion available to extend the time within which a valid notice must be given pursuant to section 290-170 of the ITAA 1997. 

14. The Tribunal accepts that the Applicant was not aware of the strictness of the notification timeframes and acknowledgement requirement when he lodged his 2021 income tax return. The Tribunal further accepts that the Applicant intended to and thought he had met the requirements to claim a $6,000.00 deduction in relation to PSC made in the 2021 income year. Unfortunately, ignorance of the law is not an excuse. In present circumstances there is no discretion in relation to the application of the requirements of sections 290-150 or

    
    

    290-170 of the ITAA 1997, and as such there is no discretion for the Tribunal to alter the end outcome.

15. Consequently, as the Tribunal has found that the Applicant had not made a valid notification of his intent to deduct PSC contributions made in the 2021 income year in accordance with the requirements of section 290-170 of the ITAA 1997, he has not discharged his burden to prove that the amended assessment was excessive or otherwise incorrect.

    CONCLUSION

16. For the reasons set out above, the Tribunal finds that:

    (a)the Applicant had not made a valid notification of his intent to deduct PSC contributions made in the 2021 income year in accordance with the requirements of section 290-170 of the ITAA 1997;

    (b)there is no discretion available to allow the Respondent or the Tribunal to exempt the Applicant from the requirements of sections 290-150 and 290-170 of the ITAA 1997; and

    (c)as such, the Applicant has not discharged his onus to prove that the amended assessment for the 2021 income year was excessive or otherwise incorrect.

17. Accordingly, the objection decision under review is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.....................[SGD].....................

Associate

Dated: 31 August 2023

Date of hearing:	27 July 2023
Applicant:	By MS Teams
Solicitors for the Respondent:	Ms Dominique Wong Australian Taxation Office

Exhibit 1, T Documents, T6, page 56, Applicant’s HESTA annual statement for the financial year ended

30 June 2021.

Explanatory Memorandum to Tax Laws Amendment (Simplified Superannuation) Bill 2006 (Cth), pages

17-20, paragraphs1.43-1.58.