Oldenburger and Commissioner of Taxation (Taxation)

This matter concerned an appeal by the Applicant against the Commissioner of Taxation's decision to disallow his objection to the Commissioner's refusal to exercise a discretion to reallocate excess concessional superannuation contributions made in the 2020-2021 financial year. The Applicant's employer had made contributions totalling $31,737.77 to his superannuation fund, exceeding the concessional contributions cap of $25,000 by $6,737.77. The dispute centred on whether these excess contributions could be disregarded or allocated to a different financial year.

The court was required to determine whether the discretion under section 291-465(1) of the *Income Tax Assessment Act 1997* (ITAA 1997) was enlivened. This involved assessing whether "special circumstances" existed and if exercising the discretion would be consistent with the objects of Division 291 of the ITAA 1997. If these threshold conditions were met, the court then had to consider whether the discretion ought to be exercised, having regard to the matters set out in section 291-465(3).

The court reasoned that the discretion under section 291-465(1) is not unfettered and requires the existence of special circumstances, which must be unusual, uncommon, exceptional, or markedly different from the usual run of cases, rendering the strict application of the rule unfair or unjust. The Applicant argued that special circumstances existed because he had a verbal agreement with his employer to manage contributions within the cap, and that the payments made in the 2020-2021 financial year represented 15 months of contributions rather than 12. However, the court found that the Applicant had not discharged his onus of proof to establish that the objection decision should not have been made or should have been made differently.

Consequently, the court refused to exercise the discretion under section 291-465(1) of the ITAA 1997 to reallocate the Applicant's excess concessional contributions. The decision under review was affirmed.