Much has been talked about of the budget announcements impacting contributions, in particular a flat $25,000 concessional contribution cap that will apply across all individuals from 1 July 2012. Whilst concessional contributions have been impacted, non-concessional contribution amounts will remain at $150,000 p.a. with the bring forward rule available for those under age 65.
Given the statistics that resulted from the last halving of the concessional contribution cap (see post, latest statistics on excess contributions tax), I would envisage further excess contributions tax issues resulting from many individuals 50 and over again requiring to change salary sacrifice arrangements down from $50,000 to $25,000.
The ‘get out of jail free’ card was always handy when playing Monopoly, and importantly we now have something like this available (in several forms) when it comes to dealing with excessive contributions. These remedies outlined below may assist with any concessional contribution or non-concessional contribution cap breach:
- Once off-refund of excess concessional contributions – Timing is everything when it comes to making contributions, in particular where employer obligations for SGC (and salary sacrifice) don’t mirror when a contribution is received and reported by a SMSF for contribution cap purposes. Whilst many people got caught previously in the 2010 FY due to this timing issue, this time around any excessive amount of $10,000 or less can be disregarded by the Commissioner and be re-assessed within the individual’s tax return for the financial year. Subject to their own marginal tax rate, this may provide a better outcome. Read previous post on proposed changes to refund excess contributions (to be effective from 1 July 2011).
- Contributions reserving – Another ‘get out of jail’ strategy was to effectively park any June contributions into a holding account or reserve within the SMSF, subject to the fund’s trust deed not prohibiting the use of reserves. We have recently seen clarity provided by the ATO in the use of this strategy through ATOID 2012/16, which states that whilst the contribution for income tax purposes is assessable in the year paid into the fund, for contribution cap purposes, it counts in the year in which it is allocated. See previous post for further details. The use of a contributions reserving strategy can apply equally to non-concessional contributions.
- De-minimus test – this change in view in March 2012 from the Australian Taxation Office certainly hasn’t made any headlines, but provided a significant shift in thinking by the Commissioner in collecting large ECT amounts triggered by small amounts. The ATO are currently working through a series of these assessments previously raised to effectively refund an individual as a result of a disproportionate ECT liability due to a small breach of the concessional and non-concessional cap. To date, we have no guidance on what constitutes a small amount to be disregarded. More information on this can be found in my previous post, de minimus to help with contribution maximis
- Returning Amounts – SIS Regulation 7.04(3) outlines that a fund can not accept a fund-capped contribution; that it a contribution which is greater than three times the non-concessional limit for someone under 65 years of age, or more than the non-concessional limit where someone is 65 years of age older. Where a single contribution is made into an SMSF that is excessive, the trustees are obliged to return the excessive amount. ATO ID 2009/29 outlines that there is effectively no timeframe to return the excessive contribution as it should not have been accepted by the super fund in the first place. As a result, if an individual makes a single excessive contribution they have the ability to retain this amount without being subject to excess contributions tax.
Ongoing management of contribution caps is still the most important role you play to ensure that an individual does not breach their contributions caps. Whilst still far from perfect, at least the law provides some opportunities to use the ‘get out of jail free’ card to address any potential excess contributions tax issues.
Related articles
- Latest ATO statistics on excess contributions (thedunnthing.com)
- ATO releases interpretative decision on allocation of June contributions (thedunnthing.com)
- de minimis to help with contribution maximus (thedunnthing.com)
- Get your June salary sacrifice amounts in order now to avoid excess contributions tax (thedunnthing.com)










