WTBW and Commissioner of Taxation (Taxation)

WTBW (the taxpayer) and the Commissioner of Taxation (the Commissioner) were parties to a dispute before the Administrative Appeals Tribunal concerning the application of Division 293 tax. The core of the disagreement revolved around whether an election was necessary for the taxpayer's excess concessional contributions to be increased by unused concessional contributions from prior income years, or if this increase applied automatically by force of the statute.

The Tribunal was required to determine two primary legal issues. Firstly, whether the legislative provisions of Division 293 of the *Income Tax Assessment Act 1997* (Cth) mandated an election by the taxpayer for unused concessional contributions from earlier income years to be applied to the current income year's excess concessional contributions. Secondly, the Tribunal had to consider whether a taxpayer could elect that an amount carried forward from a previous income year not be applied to reduce their excess concessional contributions for the current income year.

The Tribunal held that no election is required for unused concessional contributions to be applied. The relevant provisions of the *Income Tax Assessment Act 1997* operate by force of the statute, meaning the increase applies automatically. Consequently, the Tribunal found that a taxpayer cannot elect that an amount carried forward not be applied. The decision of the Commissioner was affirmed.