Moore and Commissioner of Taxation (Taxation) [2017] AATA 998 (29 June 2017)

Transcription

1 Moore and Commissioner of Taxation (Taxation) [2017] AATA 998 (29 June 2017) Division: TAXATION & COMMERCIAL DIVISION File Numbers: 2015/ Re: JAN MOORE APPLICANT And COMMISSIONER OF TAXATION RESPONDENT DECISION Tribunal: Deputy President F J Alpins Date: 29 June 2017 Place: Melbourne The decision under review is affirmed. [sgd]... Deputy President F J Alpins Commonwealth of Australia 2017

2 TAXATION superannuation excess contributions tax excess concessional contributions modifications for defined benefit interests - excess non-concessional contributions Commissioner s discretion to disregard contributions or to allocate to another financial year whether Commissioner may make determination whether there are special circumstances Legislation Income Tax Assessment Act 1997 (Cth), ss 280-5, , , , , ; , , , , , , Income Tax (Transitional Provisions) Act 2007 (Cth), s Superannuation (Excess Concessional Contributions Tax) Act 2007 (Cth), ss 4, 5 Superannuation (Excess Non-concessional Contributions Tax) Act 2007 (Cth), ss 4, 5 Income Tax Assessment Regulations 1997 (Cth), s (1) Taxation Administration Act 1953 (Cth), s 14ZZK(b)(ii), Pt IVC Cases Amaca Pty Ltd v Frost [2006] NSWCA 173 Bornstein and Commissioner of Taxation [2012] AATA 424 Baini v R (2012) 246 CLR 469 Beadle v Director-General of Social Security (1985) 7 ALD 670 Brennan v Comcare (1994) 50 FCR 555 Commissioner of Taxation v Dowling [2014] FCA 252 Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 Groth v Secretary, Department of Social Security (1995) 40 ALD 541 Liwszyc v Commissioner of Taxation [2014] FCA 112 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 Re Davenport and Commissioner of Taxation [2012] AATA 760 Re Griffiths and Commissioner of Taxation [2013] AATA 643 Re Schuurmans-Stekhoven and Commissioner of Taxation [2012] AATA 62 Ward v Commissioner of Taxation [2016] FCAFC 132 PAGE 2 OF 23

3 REASONS FOR DECISION Deputy President F J Alpins 29 June 2017 INTRODUCTION 1. This is an application for review of the Commissioner s decision to disallow the objection of the applicant, Dr Jan Moore, against assessments of excess contributions tax issued to her for the 2010, 2011 and 2012 years of income. 2. Dr Moore s objection concerned the Commissioner s refusal to make any written determinations pursuant to s (1) of the Income Tax Assessment Act 1997 (Cth) (the ITAA ) and for the purposes of Div 292 to disregard, or allocate to another financial year, the following concessional and non-concessional contributions made by her: (b) (c) $3, of excess concessional contributions in respect of the financial year ending 30 June 2010 (the 2010 year ); $9, of excess concessional contributions in respect of the financial year ending 30 June 2011 (the 2011 year ); $159, of excess non-concessional contributions in respect of the financial year ending 30 June 2012 (the 2012 year ). LEGISLATION 3. Part 3-30 of the ITAA (Divs 280 to 310 inclusive) concerns superannuation. It is stated in Div 280 (being a Guide containing explanatory provisions of general application to that Part), that there are three phases in the tax treatment of superannuation, being the contributions phase, the investment phase and the benefits phase (s 280-5(1)). Relevantly, in the contributions phase, contributions are made to a superannuation plan in respect of a member of the plan (s 280-5(2)). PAGE 3 OF 23

4 4. With respect to the contributions phase, s relevantly explained (during the years of income in issue, being the 2010 year, the 2011 year and the 2012 year (the relevant years )) that employers and individuals can usually deduct from their assessable income certain contributions they make (respectively, for employees or personally). 5. However, s (1) provided (during the relevant years) that: There is a limit to contributions that can be made in respect of an individual in a year that receive favourable tax treatment. This limit takes the form of a tax on excessive contributions, and neutralises the favourable tax treatment arising from the excessive contributions. 6. Excess contributions tax is governed by Div 292 of the ITAA, its object being expressed (in s 292-5) during the relevant years as being: to ensure that the amount of concessionally taxed *superannuation benefits that a person receives results from superannuation contributions that have been made gradually over the course of the person s life. 7. The taxing takes the form of the imposition of [excess contributions tax] which is designed to discourage, as its name suggest, the making of excessive contributions beyond the cap (Liwszyc v Commissioner of Taxation [2014] FCA 112 at [78] per McKerracher J). 8. During the relevant years, Div 292 governed both aspects of excess contributions tax, being excess concessional contributions tax, in respect of excess concessional contributions for a financial year (Subdivision 292-B) and excess non-concessional contributions tax, in respect of excess non-concessional contributions for a financial year (Subdivision 292-C). Liability for the former was imposed by s of the ITAA; liability for the latter was imposed by s During the relevant years, the meaning of concessional contributions prescribed in s (for the purposes of excess concessional contributions tax) was modified (by Subdivision 292-D) in relation to defined benefit interests (defined in s ). 10. During the relevant years, Subdiv 292-E of the ITAA governed excess contributions tax assessments and provided for objections against such assessments in the manner set out in Pt IVC of the Taxation Administration Act 1953 (Cth) (the TAA ). PAGE 4 OF 23

5 11. The provision upon which this review turns is s of the ITAA (contained in Subdivision 292-H). In respect of applications made under that provision on or after 17 November 2010 in respect of the relevant years, it provided as follows: (1) If you make an application in accordance with subsection (2), the Commissioner may make a written determination that, for the purposes of this Division: (b) all or part of your * concessional contributions for a * financial year is to be disregarded, or allocated instead for the purposes of another financial year specified in the determination; and all or part of your * non-concessional contributions for a financial year is to be disregarded, or allocated instead for the purposes of another financial year specified in the determination. (2) You may apply to the Commissioner in the * approved form for a determination under subsection (1). The application can only be made: (b) after all of the contributions sought to be disregarded or reallocated have been made; and if you receive an * excess contributions tax assessment for the * financial year before the end of: (i) (ii) the period of 60 days starting on the day you receive the assessment; or if the Commissioner allows a longer period that longer period. (3) The Commissioner may make the determination only if he or she considers that: (b) there are special circumstances; and making the determination is consistent with the object of this Division. (4) In making the determination the Commissioner may have regard to the matters in subsections (5) and (6) and any other relevant matters. (5) The Commissioner may have regard to whether a contribution made in the relevant * financial year would more appropriately be allocated towards another financial year instead. (6) The Commissioner may have regard to whether it was reasonably foreseeable, when a relevant contribution was made, that you would have * excess concessional contributions or * excess non-concessional contributions for the relevant * financial year, and in particular: (b) if the relevant contribution is made in respect of you by another person the terms of any agreement or arrangement between you and that person as to the amount and timing of the contribution; and the extent to which you had control over the making of the contribution. (7) The Commissioner must give you a copy of the determination. PAGE 5 OF 23

6 (8) A determination under this section may be included in a notice of assessment. Review of determinations (9) To avoid doubt: you may object under section against an * excess contributions tax assessment made in relation to you on the ground that you are dissatisfied with a determination that you applied for under this section; and (b) for the purposes of paragraph (e) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977, the making of a determination under this section is a decision forming part of the process of making an assessment of tax under this Act. (Emphasis added.) 12. Section (3) of the ITAA is of particular import, as the satisfaction of its conjunctive requirements is a pre-requisite to the exercise of the discretion conferred on the Commissioner by s (1) (Ward v Commissioner of Taxation [2016] FCAFC 132 at [38]). In Commissioner of Taxation v Dowling [2014] FCA 252, Greenwood J described the considerations in s (3) and (b) as absolute pre-conditions to the exercise of the discretion (at [94]; see also at [93], [125]; Liwszyc at [29], [82]). 13. If those pre-conditions are both met, then in making the determination, the Commissioner may have regard to the matters in ss (5) and (6) and any other relevant matters (s (4)). 14. The applicant has the burden of proving that the assessments in issue are excessive (s 14ZZK(b)(ii) of the TAA; relevantly, that favourable determinations under s (3) are warranted (see s (9)). BASIS OF ASSESSMENTS AND PROCEDURAL HISTORY 15. Dr Moore was born on 18 February During the relevant years, she was an employee of Deakin University. Further, during those years, she was a member of the following superannuation funds: UniSuper Ltd in Trust for UniSuper ( UniSuper ), in which she held both a defined benefit interest and an accumulation interest; and PAGE 6 OF 23

7 (b) Chobe Superannuation Fund ( Chobe ), in which she held an accumulation interest. 16. Dr Moore s membership in UniSuper commenced on 11 September Dr Moore made the following (after-tax) contributions to Chobe in the relevant years: (b) (c) $148 in the 2010 year; $150,000 in the 2011 year; $450,000 in the 2012 year. 18. The documentary evidence before the Tribunal, particularly relevant biannual Benefits Statements issued by UniSuper, establish that Deakin University made contributions to UniSuper on behalf of Dr Moore in the 2010 year and the 2011 year of the following nature, although the character of the contributions was disputed by Dr Moore, as I explain shortly: (b) (c) contributions to Dr Moore s accumulation interest in that fund made pursuant to a salary sacrifice arrangement entered into by Dr Moore with Deakin University; other contributions to Dr Moore s accumulation interest in that fund; contributions to Dr Moore s defined benefit interest in that fund, such amounts being separately accounted for in the Benefits Statements as employer contributions and member concessional (before-tax) contributions. 19. The biannual Benefits Statements for the 2010 year and the 2011 year (those years being the material ones) establish that the following contributions were made to UniSuper on Dr Moore s behalf in those years: PAGE 7 OF 23

8 Contributions 6 months ending Total defined benefit Accumulation employer Accumulation salary Total contributions sacrifice 31 December $8, $1, $21, $31, June 2010 $9, $1, $16,500 $26, Total contributions for 12 months to 30 June 2010 $58, December $9, $1, $10,000 $20, June 2011 $10, $1, $32,000 $43, Total contributions for 12 months to 30 June 2011 $64, The figures under the column headed Total defined benefit comprise the total of the employer contributions and member concessional (before-tax contributions) to which I have referred above. I return to the issue of contributions to the defined benefit interest shortly. 21. It is apt to note at this point submissions that were made on Dr Moore s behalf by her representative, Mr Peter Tobin, with respect to the nature of the contributions made to UniSuper and their amounts. Emphatic submissions were made that the contributions made to UniSuper during the 2010 and 2011 years should instead be characterised as follows: (b) (c) (d) member voluntary salary sacrificed contributions to the accumulation interest; member non-voluntary salary sacrificed contributions to the accumulation interest; member non-voluntary salary sacrificed contributions to the defined benefit interest; employer contributions to the defined benefit interest. 22. I return to the issue of the parties dispute as to the appropriate characterisation of the contributions made to UniSuper later in these reasons. PAGE 8 OF 23

9 23. The contributions actually made to the defined benefit interest were also in dispute between the parties. In that regard, Dr Moore contended that the Benefit Statements from UniSuper merely showed the change in the value of the defined benefit component over a six-month period and so they did not show contributions made to her defined benefit interest in that fund. As the Commissioner submitted, there was no evidence to support that contention which might serve to displace what is stated in the Benefits Statements. 24. Further, it was contended in Dr Moore s written submissions lodged after the hearing that the total amounts of the contributions made to UniSuper were $53, in the 2010 year and $59, in the 2011 year. It is perhaps telling that these amounts were the same as the amounts said by the Commissioner to represent Dr Moore s total concessional contributions calculated under Div 292 of the ITAA for each of those years. That suggests a conflation of actual and calculated contributions which perhaps has its genesis in a failure to acknowledge the contributions actually made to Dr Moore s defined benefit interest in UniSuper. As the Commissioner submitted, those amounts did not equate to the amount of concessional contributions as calculated under Div 292 in respect of Dr Moore s defined benefit interest. 25. In substance, Dr Moore objected against the assessments in issue on the ground that she was dissatisfied with the Commissioner s refusal to make determinations under s of the ITAA in respect any of the relevant years; consonantly, the submissions made on her behalf were directed to that issue, rather than bringing into dispute the calculation of concessional contributions to UniSuper pursuant to Div 292 and thus the amounts assessed in that regard. Dr Moore s understanding as to how Div 292 would apply to contributions made on her behalf to UniSuper, including to her defined benefit interest in that fund is of greater import in this proceeding, as is addressed later in these reasons. 26. Nevertheless, it is worthwhile to explain at this point, at least in simple terms, the basis of Dr Moore s liability for excess concessional contributions tax and also for excess non-concessional contributions tax. 27. As indicated above, during the relevant years liability to pay excess concessional contributions tax arose if an individual had excess concessional contributions for a financial year (s of the ITAA). That tax was then imposed at a rate of 31.5% of an PAGE 9 OF 23

10 individual s excess concessional contributions for a financial year (by the Superannuation (Excess Concessional Contributions Tax) Act 2007 (Cth), ss 4, 5). 28. An individual would have excess concessional contributions for a financial year if the amount of their concessional contributions for the year exceeded their concessional contributions cap for the year (s of the ITAA). As Dr Moore was over 50 years of age at the end each of the relevant years, her concessional contributions cap was $50,000 in each of those years (s of the Income Tax (Transitional Provisions) Act 2007 (Cth)). 29. During the relevant years, s defined the amount of an individual s concessional contributions for a financial year. In broadest terms, that provision encompassed contributions made to a complying superannuation plan in respect of an individual, or which were allocated by the superannuation provider in relation to the plan in accordance with the regulations where such contributions were included in the assessable income of the superannuation provider in relation to the plan. 30. As indicated above, and significantly, during the relevant years the meaning of the expression concessional contributions as defined in s was modified in the case of individuals who had one or more superannuation interest that was or included a defined benefit interest in a financial year (ss and of the ITAA), the expression defined benefit interest being defined in s Accordingly, in the case of an individual such as Dr Moore who had a superannuation interest that included a defined benefit interest or interests for the purposes of Subdivision 292-D of the ITAA, it followed that their concessional contributions fell to be determined according to special rules, as provided by s of the ITAA. That provision provided that the amount of such an individual s concessional contributions for the financial year was the sum of contributions and amounts covered by s , to the extent that they did not related to the defined benefit interest or interest. To the extent that they did so, they instead constituted the sum of the individual s notional taxed contributions for the financial year in respect of the defined benefit interest or interests. The determination of the amount of notional taxed contributions was governed by s and Subdiv 292-D of the Income Tax Assessment Regulations 1997 (Cth) (see s (1)). PAGE 10 OF 23

11 32. In Dr Moore s case, as she had notional taxed contributions in the amounts of $13, in the 2010 year and $14, in the 2011 year, it followed that her concessional contributions to UniSuper in those years, taking into account the contributions made to her accumulation interest (as set out above), were as follows: (b) $40, $13, = $53, (in the 2010 year); and $44, $14, = $59, (in the 2011 year). Accordingly, Dr Moore had excess concessional contributions in the amount of $3, in the 2010 year and in the amount of $9, in the 2011 year. (It was not in dispute that she did not have excess concessional contributions in the 2012 year.) 33. I turn now to address Dr Moore s liability to excess non-concessional contributions tax in the relevant years. Again, it is worthwhile to explain such liability in broad terms for that purpose. As indicated above, during the relevant years liability to pay excess non-concessional contributions tax arose if an individual had excess non-concessional contributions for a financial year (s of the ITAA). That tax was then imposed at a rate of 46.5% of an individual s excess non-concessional contributions for a financial year (by the Superannuation (Excess Non-concessional Contributions Tax) Act 2007 (Cth), ss 4, 5). 34. An individual would have excess non-concessional contributions for a financial year if the amount of their non-concessional contributions for the year exceeded their non-concessional contributions cap for the year (s of the ITAA). Save for circumstances in which ss (3) and (4) applied, the non-concessional contributions cap for each of the relevant years was 6 times the individual s concessional contributions cap for the year, that is to say $150,000 (s (2)). 35. However, in circumstances where the non-concessional contributions cap was exceeded in one year in respect of an individual who was under 65 years in that year, the bring forward provisions in ss (3) and (4) operated so that a non-concessional contributions cap being three times the amount mentioned in s (2) applied over the course of three years (save for in circumstances immaterial to this proceeding). These provisions had the effect of permitting, in the prescribed circumstances, non-concessional contributions of up to $450,000 over three financial years without bringing about excess non-concessional contributions. PAGE 11 OF 23

12 36. By operation of s of the ITAA, Dr Moore s non-concessional contributions for the each of the relevant years comprised the sum of her personal contributions made to Chobe, for which she did not claim a deduction (in the amounts set out above) and also included the amount of her excess concessional contributions (made to UniSuper in the 2010 year and the 2011 year). 37. It followed that, as Dr Moore exceeded her non-concessional contributions cap of $150,000 in the 2011 year (by $9,075.41, her non-concessional contributions being $150,000 (to Chobe) plus her excess concessional contributions to UniSuper in the amount of $9,075.41), the bring forward provisions applied in respect of that year and the two following, to such effect that her non-concessional contribution (to Chobe) of $450,000 in the 2012 year resulted in her exceeding her remaining non-concessional contributions cap under those provisions by $159, in that year. 38. It is in this way that Dr Moore came to seek relief under the provisions of s of the ITAA in respect of the three assessments in issue, which in each instance the Commissioner declined to grant. As indicated above, the assessments of excess contributions tax concerned excess concessional contributions in each of the 2010 and 2011 years and excess non-concessional contributions in the 2012 year. GENERAL PRINCIPLES 39. Before turning to consider the submissions made on Dr Moore s behalf, it is helpful to set out at this point relevant principles governing the exercise of the Commissioner s discretion conferred by s of the ITAA, particularly, those governing the concept of there being special circumstances for the purposes of s (3) of the ITAA. 40. As Greenwood J stated in Dowling at [37], [t]he statutory question, so far as it relates to s (3), is whether the Commissioner considers that there are special circumstances in relation to the application to disregard or reallocate all or part of the individual s non-concessional contributions for the financial year giving rise to the excess contributions tax assessment (emphasis in original). However, as is apparent from the balance of Greenwood J s reasoning, that is not to say that such circumstances are confined to those which arose in the financial year in respect of which such an assessment was issued as much as implicit from the terms of s (3), which merely requires that there are special circumstances, without further temporal constraint. PAGE 12 OF 23

13 41. In the present context, the Full Federal Court recently said of the expression special circumstances that the question is what, if anything, takes this case out of the usual or ordinary case (Ward v Commissioner of Taxation [2016] FCAFC 132 at [39]). Citing Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J with approval, the Full Court said further that if a tribunal were to conclude that something unfair, unintended or unjust had occurred there must be some feature out of the ordinary (at [39]). 42. Furthermore, the Full Court held that it is erroneous to take too narrow a view of what may constitute special circumstances within the meaning of the statute (at [43]). In that regard, the Court cautioned against unnecessarily considering factors in isolation before focusing on the entirety of the circumstances said by the applicant to be special ; one might say that the circumstances are to be considered holistically, so as to determine whether they are properly characterised as being special. Specifically, the Full Court held that the fact that the relevant circumstances are not inconsistent with the natural and foreseeable consequence of events, or put another way, the absence of unintended occurrences, does not preclude them being properly characterised as special circumstances (at [40], [44]). 43. The Full Court also cautioned against looking at expressions in other decisions and taking those expressions out of their factual and legal context (at [43]). As the Full Federal Court said in Beadle v Director-General of Social Security (1985) 7 ALD 670 at 674, [t]he phrase special circumstances, although lacking precision, is sufficiently understood in our view not to require judicial gloss. I note that the primacy of the statutory text over paraphrases to be found in cases, whether decided under the same or different legislation, was emphasised by the High Court in Baini v R (2012) 246 CLR 469 at [14] (see also Brennan v Comcare (1994) 50 FCR 555 at 572 per Gummow J). As Kitto J observed evocatively in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 at 633, fallacy lurks in paraphrase. 44. As the Full Court further stated in Beadle (at 674), the question of whether circumstances are special circumstances is to be determined according to the particular facts of any given case. Consonantly, it has been stated, albeit in a different context, that [e]ach case turns on its facts and it will rarely be appropriate to try to reason on the basis of factual analogies (Amaca Pty Ltd v Frost [2006] NSWCA 173 at [20] per Spigelman CJ, Santow PAGE 13 OF 23

14 and McColl JJA agreeing). In the present context, the Full Court criticised such reasoning by way of example in Ward (at [44]-[45]). SUBMISSIONS 45. The essential issue before the Tribunal in this proceeding is whether the discretion conferred by s of the ITAA ought to be exercised upon review with respect to the excess contributions tax assessments the subject of this proceeding (see Dowling at [38]). The parties focussed primarily upon the question of whether the precondition in s (3) was satisfied and therefore upon whether the circumstances should properly be characterised as special circumstances for the purposes of that provision. 46. The written submissions lodged on Dr Moore s behalf were voluminous and intricate. The oral submissions made on her behalf at the hearing were also very detailed. I have had regard to those submissions; it is clear that considerable care was taken in preparing them. Shortly stated, her submissions in support of the contention that the requirement of special circumstances in s (3) was met in the case of each of the relevant years of income were as follows: (b) (c) (d) (e) (f) (g) Her superannuation arrangements were complex; She had made an inadvertent mistake with respect to contributions made to UniSuper, including those relating to her defined benefit interest, despite having been extremely diligent in monitoring them; she had relied upon erroneous financial advice in respect of contributions made to UniSuper; UniSuper and Deakin University were not proactive in providing advice to her and, further, UniSuper had discouraged her from contacting them; The information provided by UniSuper was inadequate and misleading; She had been led to believe that UniSuper or Deakin University would warn her if she was likely to exceed her contributions caps; She monitored her contributions as recommended by the Australian Taxation Office (the ATO ); PAGE 14 OF 23

15 (h) (i) (j) (k) She was not advised by the ATO or UniSuper that she had exceeded her excess concessional contributions cap for the 2010 year until August 2011, which might have prevented her errors with respect to the 2011 year; Deakin University s salary sacrifice form was misleading and inadequate, which resulted in Deakin University making excessive contributions by way of salary sacrifice; Deakin University made salary sacrifice contributions contrary to her instructions; Excess contributions in the amount of $3000 made in the 2011 year were beyond her control, as they were brought about by Deakin University s actions. 47. As stated above, Dr Moore focussed considerably on her submissions that the contributions made to UniSuper on her behalf by Deakin University ought to be characterised in the four ways described above (in para 21). The nomenclature used on Dr Moore s behalf was intertwined with her other submissions in various respects. CONSIDERATION 48. Before turning to consider the submissions made on Dr Moore s behalf with respect to the existence of special circumstances, it is important to say something first about the nature of the evidence before the Tribunal. As Dr Moore elected not to give evidence, nor to call any other witness, the evidence before the Tribunal was solely of a documentary kind. 49. Further, in various respects Dr Moore s representative sought to characterise as evidence material that in fact constituted submissions, or materials (particularly tables containing various nomenclature and figures relied upon by Dr Moore), prepared for the purpose of the proceeding which had little, if any, probative value. The difficulty with such an approach is that using the term evidence to describe something does not make it so. The fact that such material may assist in explaining submissions that are relied upon does not obviate the need for evidence which might found the basis of such submissions. 50. Further, to the extent that documents were referred to that were not before the Tribunal, or documents that were before the Tribunal were relied upon in circumstances where it was manifest that they were incomplete, or put into evidence without other relevant documents PAGE 15 OF 23

16 which would bear upon the issues before the Tribunal, it would be impermissible for the Tribunal to engage in conjecture as to what documents other than those in evidence might establish. As Jessup J noted in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 at [62], the Tribunal must proceed by reference to rationally probative evidence rather than on mere suspicion or speculation. The Tribunal must bear in mind the distinction between permissible inference and impermissible conjecture (see at [88] per Jagot J). Given various deficiencies in proof, it followed that a number of submissions made on Dr Moore s behalf essentially constituted assertions made in the absence of sufficiently probative evidence. The Tribunal could only properly consider the question of whether special circumstances existed having regard to the documentary evidence before it. 51. I turn now to address the submissions made on Dr Moore s behalf (seriatim). While, as the Full Federal Court indicated in Ward at [43], the Commissioner and therefore the Tribunal upon review is required to consider whether the entirety of the circumstances said by the applicant to be special properly answer that description, it is nevertheless useful to have regard to the particular aspects of Dr Moore s circumstances to which she referred before addressing the ultimate statutory question posed by s (3) of the ITAA. 52. First, to the extent that those submissions were founded on the complexity of Dr Moore s superannuation arrangements (particularly her defined benefit interest in UniSuper) and of Div 292 of the ITAA, that does not found a basis for her circumstances properly being considered to be special circumstances. Reading s in its wider context, that complexity is expressly provided for in the terms of Div 292, including in its provisions concerning defined benefit interests. Accordingly, if individual seeks to have the discretion conferred by s exercised in their favour, one must look to circumstances other than the mere operation of Div 292 to find special circumstances. 53. Accordingly, a failure to understand the provisions of Div 292 and their operation therefore does not take a case out of the usual or ordinary case (Ward at [39]; see also Re Schuurmans-Stekhoven and Commissioner of Taxation [2012] AATA 62 at [5]). Further, the particular complexity of the provisions concerning defined benefit interests does not constitute special circumstances (see Re Griffiths and Commissioner of Taxation [2013] AATA 643 at [34] - [37]). PAGE 16 OF 23

17 54. As McKerracher J said in Liwzszyc (at [77]): An innocent mistake or ignorance of the law does not in itself constitute a special circumstance nor do simple errors, albeit innocent errors or other mistakes which are made in good faith. Equally, the fact that an error was made by another person does not in itself constitute special circumstances. 55. It follows that, to the extent that Dr Moore made inadvertent mistakes which resulted in her exceeding her concessional contributions caps, such circumstances do not constitute special circumstances. In any event, it is apparent from the documents before the Tribunal that Dr Moore s circumstances involve more than a mere inadvertent mistake or mistakes. They involve a pattern of conduct where she either relied upon matters she ought not to have relied upon, failed to get adequate advice where she ought to have done so or disregarded advice that she was given. I note however, that as Dr Moore elected not to give evidence, the Tribunal necessarily was left to draw inferences from the documents in evidence. 56. In particular, it appears that, with respect to contributions made to UniSuper, Dr Moore relied upon spreadsheets prepared by her husband in monitoring such contributions. As the Commissioner submitted, those spreadsheets were deficient in various respects, as they were incomplete in that they did not record various superannuation contributions made to UniSuper on her behalf (as recorded, amongst other places, in the biannual Benefit Statements issued by UniSuper). The spreadsheets did not appear to have been reconciled with information made available to Dr Moore by UniSuper and Deakin University. Further, those spreadsheets did not take into account the rules in Div 292 concerning concessional contributions made to defined benefit interests. 57. Further, while Dr Moore was warned by Deakin University in July 2009 that she would exceed her concessional contributions cap if she maintained her salary sacrifice arrangements at the rate she then had set, it was not until she was informed in May 2010 that she was likely to exceed her concessional contributions cap in the 2010 year that she reduced her salary sacrifice amounts; nevertheless, on the basis of the evidence before the Tribunal it does not appear that she then made better efforts to understand the operation of Div 292 with respect to her superannuation contributions. Rather, in the 2011 year she again increased her salary sacrifice amounts and also made a personal (after-tax) contribution of $150,000 and then made significant personal (after-tax) contributions in the 2012 year, all apparently without seeking professional advice. The PAGE 17 OF 23

18 last of those was made apparently despite having received correspondence from UniSuper in November 2011 informing her that she had excess concessional contributions for the 2011 year and, remarkably, after having received the excess contributions tax assessments in issue for the 2010 and 2011 years. 58. As the Commissioner submitted, the only evidence of advice obtained by Dr Moore with respect to her superannuation arrangements before the Tribunal was a two-page letter dated 1 July 2009 from Mr Ian Clark to Dr Moore and her husband concerning the 2010 year. Dr Moore relied on that letter in support of her submission that she had relied upon incorrect advice. However, that inference is not properly open based upon that or any other evidence before the Tribunal. As the Commissioner submitted, the document itself is incomplete, in that it refers to appendices not before the Tribunal. Furthermore, the instructions upon which the advice was based are not included. Indeed, the letter does not indicate that the adviser was aware of Dr Moore s superannuation arrangements in their entirety; amongst other things, there is no reference made to her having a defined benefit interest; the advice appears to be very limited in nature. 59. In the absence of any other evidence as to other advice received by Dr Moore, nor any evidence as to her asserted reliance on such advice, it could not be inferred that any special circumstances arise in that regard, leaving aside whether reliance on incorrect advice can of itself constitute special circumstances in any event (see Re Davenport and Commissioner of Taxation [2012] AATA 760 at [79]). 60. On the contrary, Dr Moore appears to have proceeded relying largely on her husband s spreadsheets, despite indications that that course was proving unwise. As the Commissioner submitted, based upon the evidence before the Tribunal, Dr Moore can fairly be described as having taken insufficient steps to understand, or obtain advice about, her own superannuation arrangements, despite having a defined benefit interest. She therefore did not seek to obtain advice about that interest, nor to ensure that her salary sacrificed contributions would not cause her to exceed her concessional contributions cap, nor to obtain advice as to how excess concessional contributions tax might affect her non-concessional contributions caps under the bring forward provisions. 61. Nor do I accept Dr Moore s submission that special circumstances existed because Deakin University and UniSuper did not proactively provide advice and that UniSuper PAGE 18 OF 23

19 proactively discouraged her from contacting the fund. As the Commissioner submitted, the evidence establishes that both Dr Moore s employer and the fund provided her with information and suggested on a number of occasions that she seek advice; as I have said, the evidence before the Tribunal does not establish that Dr Moore sought or obtained advice concerning her specific superannuation arrangements. Contact details were provided in, at least, UniSuper s bi-annual Benefit Statements. The evidence before the Tribunal does not support the assertion that Dr Moore was discouraged from contacting the fund. 62. Furthermore, as the Commissioner submitted, the information provided by both Deakin University and UniSuper to Dr Moore was the same as that provided to other such members of UniSuper. Dr Moore, despite receiving that information, continued down a path which resulted in the excess contributions tax assessments in issue. As I have said, Dr Moore did not give evidence, but even if her evidence had been that she did not understand the information provided, that would not constitute special circumstances. There was nothing inherently unusual about the information provided, notwithstanding that it dealt with complex matters such that some members might require advice or assistance to understand it. 63. There was considerable emphasis placed by Dr Moore s representative on the contention that the information provided by UniSuper was, shortly stated, inadequate and misleading in various ways. The first impediment to this contention s success is an evidentiary one. I am not satisfied that the documents before the Tribunal were complete or comprehensive. As the Commissioner submitted, there would have been other information available to Dr Moore concerning her superannuation arrangements, at the very least constituent documents governing the fund, which were not in evidence. Further, given that Dr Moore was, upon her eventual request in September 2011, provided with a fact sheet concerning the application of Div 292 of the ITAA to defined benefit interests held in UniSuper, in the absence of any evidence given by Dr Moore or any other witness, the unanswered question arises as to whether there was other information provided to her which was not before the Tribunal. 64. As the Commissioner further submitted, much of Dr Moore s argument was founded on the false premise that the biannual Benefit Statements provided by UniSuper were required to provide her with taxation advice or calculations made for the purposes of PAGE 19 OF 23

20 Div 292 of the ITAA, when what they clearly were directed to was informing her of actual contributions made by her and on her behalf (in fact being amounts greater than those calculated under Div 292) and the value of her interest in the fund. 65. Nor am I satisfied that any other document, particularly correspondence from UniSuper, whether sent during or after the relevant years, warrants a conclusion that Dr Moore somehow received insufficient or misleading information. It is apt to observe at this point that much of what was said on Dr Moore s behalf erroneously conflated asserted misinformation with a failure to understand, or to obtain advice about, the information that was provided. 66. As the Commissioner submitted, Dr Moore s submission that she had been led to believe that either UniSuper or Deakin University would warn her if she was at risk of exceeding her contributions cap lacked foundation, given that she declined to give evidence and there was no proper basis in the documentary evidence to conclude that such a belief could have been a reasonable one. Consonantly, this submission conflated her own mistakes with contended misinformation. 67. To the extent that Dr Moore relied upon an extract from the Australian Taxation Office s website, which appears to have been printed in 2015, in support of her submission that she followed ATO recommendations to monitor her contributions, I am not satisfied based on that or any other document before the Tribunal that Dr Moore could have or did rely on that at any time relevant to this proceeding. Nor does that document support her submission that the ATO has difficulty in understanding defined benefit interests when one has regard to the evidence in its totality, leaving aside that such a submission is essentially another way of seeking to rely on the expressly envisaged complexity of Div 292 with respect to such defined benefit interests. 68. Nor can Dr Moore s submission that there was a delay in informing her of her excessive contributions such that might be said to constitute special circumstances be accepted. First, she was notified in July 2009 that she was likely to exceed her concessional contributions cap, but did not act on that information. No delay that might be said to be unusual or out of the ordinary occurred with respect to notifying her that she had exceeded her concessional contributions cap in the 2010 year. PAGE 20 OF 23

21 69. Before turning to Dr Moore s submissions about her salary sacrifice arrangements, it is convenient to address the quadripartite nomenclature her representative, Mr Tobin, insisted ought to be adopted to characterise the UniSuper contributions. As the Commissioner submitted, that characterisation is liable to criticism. First, the expression non-voluntary salary sacrifice contributions is questionable given that salary sacrifice arrangements are essentially voluntary in nature; in any event, even if one were to accept such a proposition, there was no evidence of such an arrangement existing or being available, whether for Dr Moore or others, before the Tribunal; indeed, the evidence before the Tribunal tended to show that such arrangements were voluntary. The best evidence of the character of contributions made to UniSuper was to be found in the biannual Benefit Statements, which Dr Moore s representative tended to wish to contradict, but without an evidentiary basis for doing so. 70. In any event, the submissions upon which Dr Moore relied in support of the nomenclature she wished to rely upon tended only to betray, again, that she had failed to understand the tax consequences of her contributions, which thus resulted in her exceeding her concessional contributions cap for each of the 2010 and 2011 years. That misunderstanding was perpetuated in the very nature of the submissions made contrary to the information contained in the Benefit Statements before the Tribunal and in the absence of evidence which might support them. Such submissions could not justify a conclusion that special circumstances existed for the purposes of s (3) of the ITAA in respect of any of the relevant years. 71. The submission that Deakin University s salary sacrifice form was misleading should also be rejected. There is nothing misleading about the document on its face; again, Dr Moore conflated her apparent failure to understand her own arrangements or to seek advice about them with having been misled. She gave instructions regarding her salary sacrifice amounts on various occasions, which on the evidence before the Tribunal were followed. 72. Dr Moore s submission that $3000 of concessional contributions made for her benefit were beyond her control should also be rejected, as it is not unusual for it to take two days to process a request to change a salary sacrifice arrangement, nor was there any evidence before the Tribunal that Deakin University made any contributions other than in the normal manner. PAGE 21 OF 23

22 73. Dr Moore s representative also sought to rely, by way of analogy, upon the facts of those cases where it has been found that special circumstances existed for the purposes of s of the ITAA. Particularly, it was submitted that if, the facts in Bornstein and Commissioner of Taxation [2012] AATA 424 could be described as a perfect storm of events, miscommunications and misunderstandings (at [12]), then her case could be called a cyclone. However, as indicated above, one must proceed according to the particular facts of each case, considered holistically, not by way of analogical analysis, nor indeed meteorological metaphor, even if presented with a flourish. 74. Having regard to the entirety of the circumstances said by the applicant to be special (Ward at [43]), I do not consider that there is, to employ the Full Court s words at [39], anything [which] takes this case out of the usual or ordinary case so as to justify a conclusion that there are special circumstances which might permit the making of a determination under s with respect to any of the relevant years. CONCLUSION 75. As the preconditions in s (3) are conjunctive requirements, it is not necessary to consider whether s (3)(b) is satisfied, nor to consider the exercise of the discretion to make a determination. 76. As Dr Moore has not discharged the burden of proving that any of the excess contributions tax assessments in issue are excessive, for the above reasons the decision under review must be affirmed. I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of: Deputy President F J Alpins... Associate Dated 29 June 2017 PAGE 22 OF 23

23 Dates of hearing 4 April 2016 & 10 August 2016 Representative for Applicant Counsel for Respondent Solicitor for Respondent Mr P Tobin Ms M Baker Ms W Tai, Review and Dispute Resolution, Australian Taxation Office PAGE 23 OF 23