Commonwealth Numbered Acts Commonwealth Numbered Acts
Income Tax Assessment Act 1997
1 Subsection 290-150(2)
After "290-165", insert ", 290-167".
2 After section 290-165
Insert:
290-167 Contribution must not be a downsizer contribution
You cannot deduct the contribution if it is a contribution that is covered under section 292-102 (about downsizer contributions).
3 After subparagraph 292-90(2)(c)(iii)
Insert:
(iiia) a contribution covered under section 292-102 (downsizer contributions);
4 After section 292-100
Insert:
292-102 Downsizer contributions
Criteria for a downsizer contribution
(1) A contribution is covered under this section if:
(a) the contribution is made to a * complying superannuation plan in respect of you when you are aged 65 years or over; and
(b) the contribution is an amount equal to all or part of the * capital proceeds received from the * disposal of an * ownership interest (the old interest ) in a * dwelling; and
(c) you or your * spouse held the old interest just before the disposal; and
(d) any * capital gain or * capital loss from the disposal of the old interest:
(i) for the case where you held it just before the disposal--is wholly or partially disregarded under Subdivision 118-B (or would have been if you had * acquired it on or after 20 September 1985); or
(ii) otherwise--would have been wholly or partially disregarded under Subdivision 118-B had you held the old interest for a period before the disposal; and
(e) the condition in subsection (2) is met for the disposal; and
(f) the dwelling is located in * Australia, and is not a caravan, houseboat or other mobile home; and
(g) the contribution is made within 90 days, or such longer period as the Commissioner allows, after the time the change of ownership occurs as a result of the disposal; and
(h) you choose, in accordance with subsection (8), to apply this section to the contribution; and
(i) there is not already a contribution covered under this section, and made to a complying superannuation plan in respect of you, from an earlier choice you made in relation to the disposal of:
(i) another ownership interest in the dwelling that was not a related spousal interest to the old interest; or
(ii) an ownership interest in another dwelling.
Note 1: Subparagraph (i)(i) does not prevent another contribution, made for you from the capital proceeds from the disposal of the same interest, from also being a contribution covered under this section.
Note 2: That subparagraph also does not prevent another contribution, made for you from the capital proceeds from the disposal of a related spousal interest, from being a contribution covered under this section.
10-year ownership condition
(2) The condition in this subsection is met for the * disposal of the old interest if either or both of the following paragraphs applies:
(a) at all times during the 10 years ending just before the disposal:
(i) the old interest was held by you, your * spouse or your former spouse; or
(ii) an * ownership interest in the land on which the * dwelling is situated was held by you, your spouse or your former spouse;
(b) if subsection 118-147(1):
(i) applies because the old interest was a substitute property interest (within the meaning of that subsection) for an old dwelling referred to in paragraph 118-147(1)(a); or
(ii) would have applied as described in subparagraph (i) if paragraph 118-147(1)(a) were modified to refer to a dwelling (the old dwelling ) that was your main residence;
you, your spouse or your former spouse * acquired an ownership interest in that old dwelling at least 10 years before the disposal.
Note: Section 118-147 deals with a dwelling replacing an earlier dwelling that was compulsorily acquired or destroyed etc.
Cap on the amount of a downsizer contribution
(3) Despite subsection (1), the contribution is covered under this section only to the extent that it does not exceed the lesser of:
(a) $300,000, less any other contribution that is alread y covered under this section and made to a * comply ing superannuation plan in respect of you; and
(b) the sum of the * capital proceeds from the disposals of:
(i) the old interest; and
(ii) any * related spousal interest to the old interest;
less the sum of all other contributions that are already covered under this section and made to comply ing superannuation plans in respect of you or your * spouse.
Meaning of related spousal interest
(4) A related spousal interest , to an * ownership interest in a * dwelling, is another ownership interest in the dwelling if:
(a) both ownership interests are * disposed of under the same contract; and
(b) just before the disposal, you * held one of the ownership interests and your * spouse held the other.
When interest held by trustee of deceased estate
(5) For the purposes of determining whether an individual held an interest at a particular time, if the interest was held at the particular time by the trustee of the deceased estate of an individual who was your * spouse when the individual died, the interest is taken to be held at the particular time by that individual.
Review of the period for making the contribution
(6) If:
(a) you requested the Commissioner to allow a longer period under paragraph (1)(g); and
(b) you are dissatisfied with:
(i) a decision under that paragraph allowing a longer period; or
(ii) a decision the Commissioner makes not to allow a longer period;
you may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953 .
(7) To avoid doubt:
(a) subject to subsection 14ZVC(3) of the Taxation Administration Act 1953 , you may also object, on the ground that you are dissatisfied with such a decision, relating to all or part of your contributions for a * financial year:
(i) under section 175A of the Income Tax Assessment Act 1936 against an assessment made in relation to you for the corresponding income year; or
(ii) under section 97-35 in Schedule 1 to the Taxation Administration Act 1953 against an * excess non-concessional contributions determination made in relation to you for the financial year; and
(b) for the purposes of paragraph (e) of Schedule 1 to the Administrative Decisions (Judicial Review) Act 1977 , the making of a decision under paragraph (1)(g) of this section is a decision forming part of the process of making an assessment of tax, and making a calculation of charge, under this Act.
Requirements for choices
(8) To make a choice for the purposes of paragraph (1)(h), you must:
(a) make the choice in the * approved form; and
(b) give it to the * superannuation provider in relation to the * complying superannuation plan at or before the time when the contribution is made.
Commissioner to notify providers if contributions are not downsizer contributions
(9) The Commissioner must, in writing, notify a * superannuation provider that all, or a specified part, of a contribution is not covered under this section if:
(a) the Commissioner is aware that a choice referred to in subsection (8) has been given to the superannuation provider for the contribution; and
(b) the Commissioner is satisfied that the contribution, or that part of the contribution, (as applicable) is not covered under this section.
The Commissioner may give a copy of the notification to * APRA.
5 Subsection 995-1(1)
Insert:
"related spousal interest " has the meaning given by subsection 292-102(4).
Taxation Administration Act 1953
6 Subsection 355-65(3) in Schedule 1 (at the end of the table)
Add:
| 11 | a * superannuation provider or APRA | is for the purpose of complying with subsection 292-102(9) of the Income Tax Assessment Act 1997 . |
7 Application of amendments
The amendments made by this Schedule apply in relation to a disposal of an ownership interest in a dwelling if the contract for the disposal is entered into on or after 1 July 2018.