A recent PBR 1052268337540 concerning the eligibility of a member to claim personal contributions has caused some confusion. It confirms that the ATO cannot exercise a discretion to allow a tax deduction for a personal contribution if the notice of intent requirements have not been satisfied. The confusion has been caused by inappropriate redacting of dates and spelling errors.

All personal contributions made by a member are non-concessional unless the ATO’s Notice of Intent to Claim form has been processed.

The form must be lodged with the fund before the earlier of:

• the lodgement of the personal tax return for the year of contribution, and
• the end of the financial year after the year contributions were made.

The fund must acknowledge it by responding to the member.

The PBR seems to contradict this. PBR redactions are intended to protect the identities of the parties concerned. I have never understood why it is necessary to redact dates to achieve this. In this case the PBR explains the scenario as

“In June 20XX, you made personal contribution of $XXX to your superfund (XXX)
In October 20XX, you lodged a ‘Notice of Intent to claim a tax deduction for personal super contributions”

The assumption is that XX is the same number but, if it were, the notification would have been in order given that the other items that could have caused its invalidity were absent. More usefully it could have stated

“In June 2022, you made personal contribution of $XXX to your superfund (XXX)
In October 2023, you lodged a ‘Notice of Intent to claim a tax deduction for personal super contributions”

As the notice was given after “the end of the financial year after the year contributions were made” it is out of time.

It is useful to note that a notice is invalid if:

• not in respect of the contribution
• includes all or part of an amount covered by a previous notice, or
• when person gave notice:
  • they were not a member of the fund
  • trustee no longer holds contribution (see Taxation Ruling TR 2010/1)
  • trustee has begun to pay a super income stream based in whole or part on contribution (see Taxation Ruling TR 2010/1), or
  • ​person has applied to split contributions with spouse (and trustee has accepted application)

The Notice cannot be revoked or withdrawn. It can be varied, but only to reduce the amount claimed.

Note that, if the amount claimed is more than the member’s assessable income, contributions tax will be levied by the fund even though the ATO will alter the designation of the excessive amount to non-concessional.