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Can the trustee of a superannuation fund (a successor fund) accept notice under subsection 82AAT(1C) of the Income Tax Assessment Act 1936 (ITAA 1936) to reduce the amount covered by a notice given under subsection 82AAT(1A) of the ITAA 1936 to a predecessor fund in respect of contributions made to that predecessor fund?

No. The trustee of a successor fund is not able to accept notice under subsection 82AAT(1C) of the ITAA 1936 to reduce the amount covered by a notice given under subsection 82AAT(1A) of the ITAA 1936 to a predecessor fund in respect of contributions made to that predecessor fund.

A rationalisation program in relation to superannuation products and funds has taken place.

The program involved a number of 'successor fund transfers' of superannuation members between funds.

After the date of the successor fund transfer a member sought to give notice under subsection 82AAT(1C) of the ITAA 1936 to the trustee of the successor fund to reduce the amount covered by an original notice given under subsection 82AAT(1A) of the ITAA 1936 to the predecessor fund.

Former subsection 82AAT(1A) of the ITAA 1936 provided that:

A person who is making or has made a contribution to a fund may give a written notice to the trustee of the fund, stating that the person intends to claim a deduction under this section for the whole or a specified part of the contribution. Subject to subsection (1AA), the trustee must, without delay, give the person a notice acknowledging receipt of the person's notice.

The amount covered by a notice given under subsection 82AAT(1A) of the ITAA 1936 may generally be reduced under subsection 82AAT(1C) of the ITAA 1936 at any time:

A person may at any time give written notice to the trustee of a fund reducing the amount covered by a notice under subsection (1A), but not below the amount that has been allowed as a deduction to the person under this section for contributions covered by the notice.

The giving of notice under subsection 82AAT(1C) of the ITAA 1936 reduces the amount covered by the notice given under subsection 82AAT(1A) of the ITAA 1936. The net amount continues to be covered by the notice under subsection 82AAT(1A).

Subsection 82AAT(1B) of the ITAA 1936 applies restrictions to notices given under subsection 82AAT(1A) of the ITAA 1936. These restrictions also apply to the giving of a notice to reduce the amount under subsection 82AAT(1C) of the ITAA 1936.

The now repealed subsection 82AAT(1A) of the ITAA 1936 required that a notice given under that subsection should be given to the trustee of the fund to which the contribution was made.

As the notice given under subsection 82AAT(1C) of the ITAA 1936 merely reduces the amount covered in the original notice given under subsection 82AAT(1A) of the ITAA 1936, it is also subject to the same requirement.

The notice reducing the amount only has relevance for a trustee who received the original notice under subsection 82AAT(1A) of the ITAA 1936. The successor fund is not the fund which received the contributions or the original notice under subsection 82AAT(1A).

It should be noted that the principles of former section 82AAT of the ITAA 1936 appear in sections 290-170, 290-175 and 290-180 of the Income Tax Assessment Act 1997 in respect of superannuation contributions made on or after 1 July 2007.