Q: I put money into my SMSF in June 2011 from a capital gain. I wasn’t able to tell the fund at that time what it was for as my accountant hadn’t completed the figures so that notice was sent to them in April 2012. As I understood the rules, so long as the money was in the fund at June 2011, I could then withdraw any of it the following month (and did). I am over 60 and retired. I now have been told that the money not only had to be in the fund in the year the gain was made, but had to stay there until the fund actually received the Section 82AAT (1A) notice. Can you confirm?
Unfortunately, timing is very important when claiming a tax deduction for
You must complete and lodge a Notice of intent to claim or vary a deduction for personal super contributions and supply it to your super fund before you start an income stream/pension if those tax-deductible (concessional) contributions form part of the pension assets.
The notice is now called a section 290-170 notice (formerly known as Section 82AAT notice).
Important: Note that you must lodge this notice with your super fund, and receive acknowledgement from your super fund before you lodge your tax return. The trustee (you, when talking about a SMSF), then uses the notice to determine the treatment of the contributions for benefit component purposes, and to report the contributions in the super fund’s tax return.
Background: According to the ATO, you must lodge a notice of intent to claim a deduction with your super fund before whichever of the following occurs first:
- the day you lodge your income tax return for the year the contributions were made
- the end of the income year after the income year in which you made the contributions.
That didn’t really answer my question. It was about the rule change on 1st July 2007
This was my question…As I understood it at the time, so long as the money was in the fund at 28/06/06, I could then withdraw any of it the following month (and did) I was over sixty and retired at the time. I believe that changed on 1 July 2007 so that the money not only had to be in the fund in the year the gain was made, but had to stay there until the fund actually received the Section 82AAT (1A) notice. Can you confirm that at that time, June 2007, there was no requirment for the money to still be in the fund when the 82AAT notice was provided.
Hi Thelma
Thanks again for your question, and clarification of your original question. Before I respond, I need to emphasise that SuperGuide is an information website rather than an advisory website, which means that what I am about to say is merely a product of research of publicly available information, and is designed to help point you in the right direction. You will need to verify the rules by asking the ATO for a specific ruling, or chat to a superannuation specialist adviser.
My understanding is that under the s82AAT regime, there were no time limits placed on the lodgement of the s82AAT notice, except obviously it would need to be lodged before claiming a tax deduction for the contribution in an income tax return for a particular financial year (and the individual must have received an acknowledgement of receipt of the notice from the super fund trustee).
Note that this general rule of ‘no time limits’ doesn’t seem to apply where those contributions that are subject to the s82AAT notice were used to start an income stream. I believe that under the rules applicable before July 2007 and after July 2007, that a notice of intention to claim a deduction had to be submitted before the income stream was started, although I can find no legal authority to back up this view, and there is no information available on this issue on the ATO website, or anywhere else that I can find.
Under s290-170(2), the legislation specifically states that an individual cannot give a deduction notice to a fund trustee, when the trustee has begun paying an income stream based on whole or part of the contribution, although such a requirement is not specified in the old section 82AAT. The lack of information on this issue should prompt a response from the ATO if you approach them with your question. I am very interested to hear the outcome, and hopefully one of our accountant readers may have a long memory and be able to shed some light on the issue.
Under the previous rules (that is before July 2007), there was some flexibility to allow for rectification if an individual forgot to lodge a notice and had started an income stream. The process was to commute the pension and revert to accumulation phase, and then submit the notice and then recommence the income stream (pension). I strongly suggest you check with the ATO about your options in these circumstances before taking any steps available, if any.
Best of luck
Regards
Trish