BVZH and Commissioner of Taxation (Taxation) [2024] AATA 3618 (10 October 2024)

Division:	GENERAL DIVISION
File Number(s):	2023/4829
Re:	BVZH
	APPLICANT
And	Commissioner of Taxation
	RESPONDENT
Decision

Tribunal:	R Cameron, Senior Member
Date:	10 October 2024  
Place:	Melbourne

The Tribunal affirms the objection decision made by the respondent on 12 May 2023
...................................[sgd].....................................
R Cameron, Senior Member

Catchwords
SUPERANNUATION - excess non-concessional contributions - construction and application of s 292-465 of the Income Tax Assessment Act 1997 (Cth) - special circumstances - splitting superannuation and other matrimonial assets - non-concessional contributions cap – “bring forward” rule - whether written determination should be made to disregard or allocate any part of the non-concessional contribution to another financial year - object of Division 292 - objection decision affirmed. 

Legislation
Taxation Administration Act 1953 (Cth)
Income Tax Assessment Act 1997 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001

Cases
Liwszyc v Federal Commissioner of Taxation [2014] FCA 112
Ward v Commissioner of Taxation [2016] FCAFC 132
Commissioner Taxation v Dowling [2014] FCA 252
Groth v Secretary, Department of Social Security 40 ALD 541
Ward and Commissioner of Taxation (Taxation) [2015] AATA 919.
Hamad v Commissioner of Taxation [2012] AATA 530
Bornstein v Commissioner of Taxation [2012] AATA 424
Longcake v Commissioner of Taxation [2012] AATA 576
Ward v Commissioner of Taxation [2018] AATA 1519
Brady v Commissioner of Taxation [2016] AATA 97

REASONS FOR DECISION

R Cameron, Senior Member

INTRODUCTION
1.	The applicant seeks review of a decision under s 14ZZ(1)(a)(i) of the Taxation Administration Act 1953 (Cth) (‘TAA’) of an objection decision made by the respondent on 12 May 2023.
2.	At the hearing of the application the applicant gave evidence on affirmation.
3.	Additionally, the parties helpfully prepared a Joint Tribunal Book (‘JTB’) which comprised material lodged by the applicant together with material lodged by the respondent including the T and supplementary T documents.
4.	When in the witness box the applicant verified as true and correct his witness statements made on 8 March 2024 and 28 June 2024. They were received in evidence.
BACKGROUND AND RELEVANT FACTS
5.	The facts of this application are relatively noncontroversial. The debate between the parties in this matter really concerns the construction and application of ss 292-465 of the Income Tax Assessment Act 1997 (Cth) (‘ITAA’).
6.	The applicant was born in November 1962. Therefore, his preservation age is 58 years.
7.	In October 2018 the applicant separated from his wife. Lawyers were retained, who at all relevant times acted on behalf of the applicant and his wife.
8.	As at 30 June 2019, the applicant’s total superannuation balance was recorded in the sum of $1,820,792.58. This total sum was held in 3 separate funds as follows:
(a)	Commonwealth Superannuation scheme: $978,923.59;
(b)	‘ZH’ Superannuation Fund: $840,059.00; and
(c)	Australian Super: $1,809.99.
9.	Negotiations between the lawyers for the applicant and his wife took place. These negotiations culminated in an order being made by consent by a Registrar of the Family Court of Australia on 23 March 2020. The ‘Minutes of Order’ made by the Family Court was expressed, insofar as it related to settlement of property, to finalise all claims between the applicant and his wife.
10.	In the Minutes of Order made by the Family Court there was also a specific section, clause 13, addressing superannuation. Subclause 13(a) of the Minutes of Order required the trustee of the ‘ZH’ Superannuation Fund to do all such acts, matters and things so as to pay to the applicant’s wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $1,575,000 less the amount of the wife’s member entitlements at 30 June 2019.
11.	Subclause 13(b) of the Minutes of Order provided that there shall be a corresponding reduction in the entitlement that the husband would have had in the ‘ZH’ Superannuation Fund but for those orders.
12.	On 24 April 2020, in compliance with the provisions of subclause 13(a) of the Minutes of Order previously made on 23 March 2020 in the Family Court of Australia, the sum of $1,575,000 was withdrawn from the ‘ZH’ Superannuation Fund and paid to the benefit of the applicant’s former wife.
13.	The effect of the operation of Clause 13(a) of the Minutes of Order made in the Family Court of Australia on 23 March 2020, when the trustee of the ‘ZH’ Superannuation Fund withdrew the sum of $1,575,000, was to reduce the applicant’s member’s account balance of that fund as at 30 June 2020 by an amount of $427,497.
14.	A Member’s Statement for the ‘ZH’ Superannuation Fund was in evidence before the Tribunal. It recorded the applicant’s wife having an entitlement in that fund as at 30 June 2020 for the reporting period of 1 July 2019 to 30 June 2020. An opening balance as at 1 July 2019 recorded that she had an entitlement of $1,147,503.00. When the sum of $427,497 was paid to her from the applicant’s member’s entitlement, the obligations in Clause 13(a) of the Minutes of Order were satisfied.
15.	On 18 June 2020, the applicant made a non-concessional contribution of $100,000 to the ‘ZH’ Superannuation Fund. From his history of total superannuation balances, which was in evidence before the Tribunal, this was the applicant’s first ever non-concessional contribution. 
16.	The applicant’s total superannuation balance recorded at 30 June 2020 an amount of $1,389,272.50 which the applicant described as a ‘drastic reduction’. He contends that by reason of this fact and that the balance remained below $1,400,000, it would have enabled him to make a maximum 3-year non-concessional contribution to be brought forward in the 2024-2021 financial year under the applicable rules at that time.
17.	Under s 292-85(2) of the ITAA, the applicant’s non-concessional contributions cap for the financial year ending 30 June 2020 was nil. This was because immediately before the start of that financial year, his total superannuation balance exceeded the general transfer balance for that year. Immediately prior to the commencement of the 2019-2020 financial year, the applicant’s total superannuation balance exceeded the general transfer balance for that financial year of $1,600,000.
18.	Consistent with the grounds of his objection made to the respondent and reiterated in submissions before this Tribunal, made both in writing and orally, the applicant when in the witness box conceded the application and effect of s 292-85(2) of the ITAA. He explained that when he made the non-concessional contribution of $100,000 on 18 June 2020, he made an honest mistake. The mistake he made was, as he put it, to focus on the transfer balance remaining to his benefit after the ‘extraction’ of the sum of $1,575,000 which was paid to his wife in compliance with subclause 13(b) of the Minutes of Order made in the Family Court of Australia on 23 March 2020. In other words, because his superannuation balance had been reduced below the $1.6 million general transfer cap, he erroneously believed he was able to make a non-concessional contribution during that financial year. By reason of his lack of awareness of the application of s 292-85 of the ITAA, which determined his non concessional contributions cap for a financial year by reference to his total superannuation balance immediately before the start of that financial year (which because of his total superannuation balance at that date, his cap was nil), he made a genuine mistake.
19.	The Tribunal did not understand the respondent both in the several submissions made to the Tribunal, nor in cross examination, to challenge the applicant’s evidence that the non-concessional contribution made by him of $100,000 on 18 June 2020 was a mistake made in the way he described it.
20.	When being cross examined the applicant acknowledged that prior to making the non-concessional contribution of $100,000 to the ‘ZH’ Superannuation Fund on 18 June 2020, he was unaware of the provisions of s 292-85 of the ITAA. He also stated that he did not seek any accounting or legal advice before making the non-concessional contribution of $100,000.
21.	The respondent made a determination on 16 June 2021 which imposed a liability on the applicant for excess non-concessional contributions tax in the sum of $47,000.
22.	Following the respondent’s determination of 16 June 2021, the applicant sought from the respondent an excess contributions determination under s 292-465 of the ITAA.
23.	The applicant’s application to the respondent for a determination under s 292-465 of the ITAA was disallowed on 28 October 2022. Whilst it is not really necessary for the purposes of this application to refer to the reasons for the respondent’s decision, it is perhaps appropriate to mention certain aspects of them. The determination recorded the applicant as stating that he was unaware that his non-concessional contributions cap for the 2019-2020 financial year was nil when he made the non-concessional contribution of $100,000 on 18 June 2020. It also noted that the applicant stated that he believed his current superannuation balance was below the threshold of $1,600,000. Finally, it was stated that ignorance of the law or an innocent mistake, are not generally special circumstances if there were no other factors leading to the mistake. It was reiterated that the only reason for the excess non concessional contributions was the applicant’s misunderstanding of his total superannuation balance, and relying upon incorrect data, which could have been mitigated by contacting his superannuation fund to check his balance prior to making the contributions concerned.
24.	The applicant lodged an objection on 7 November 2022 against the respondent’s decision not to make a determination under s 292-465 of the ITAA.
25.	The applicant’s objection against the respondent’s decision not to make a determination under s 292-465 of the ITAA was disallowed on 12 May 2023. Once again, it is not strictly necessary to refer to the Commissioner’s reasons for decision. However, it is appropriate to refer to several aspects of those reasons. The reasons record that the applicant believed at the time he made the non-concessional contribution of $100,000 on 18 June 2020 that his super fund balance had been decreased by the transaction on 24 April 2020, which transferred the sum of $1,575,000 to his former wife pursuant to an order made in the Family Court of Australia. The reasons also stated that at the time the non-concessional contribution of $100,000 was made on 18 June 2020, the applicant’s total superannuation balance was determined as of 30 June in the previous income year and was retained for the entirety of the income year regardless of transactions throughout that income year. Finally, the reasons stated that an honest and mistaken belief of the operation of the law has been found not to amount to special circumstances. A decision of a judge of the Federal Court of Australia was referred to as authority for this proposition. It is, as noted above, from this decision that the applicant seeks a review in this Tribunal.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
26.	The fulcrum of this case relates to the application and construction of s 292-465(3) of the ITAA. Therefore, it is necessary to determine whether:
(a)	there are special circumstances; and
(b)	should the Tribunal find that there are special circumstances that exist with respect to the non-concessional contribution by the applicant, whether making the determination is consistent with the objects of Division 292 of the ITAA.
27.	If these two previous issues are found in the affirmative, in deciding whether the determination should be made, the Tribunal, as decision-maker, should have regard to other relevant matters as specified in ss 292-465(5) and (6) of the ITAA, namely:
(a)	whether the $100,000 non-concessional contribution made by the applicant on 18 June 2020 during the 2019-20 financial year would be more appropriately allocated towards another financial year; and 
(b)	was it reasonably foreseeable, when the relevant contribution was made, that the applicant would have excess non-concessional contributions, having regard to the extent to which the applicant had control over the making of the contribution?
CONSIDERATION
Burden of proof
28.	It is appropriate to acknowledge at the outset of a consideration of this matter that on a review of a reviewable objection decision, under s 14ZZK(b)(ii) of the TAA the applicant has the burden of proving that the taxation decision concerned should not have been made or should have been made differently. The respondent submitted, and the Tribunal agrees, that in this matter it requires the Tribunal to be satisfied that the Commissioner’s decision not to make a determination under s 292-465(1) of the ITAA should not have been made, and that instead a determination should have been made to either disregard, or allocate to another financial year, the non-concessional contribution of $100,000 made by the applicant to the ‘ZH’ Superannuation Fund in the 2019-2020 financial year. 
Construction and application of s 292-465 of the ITAA
29.	Despite the comparatively lengthy submissions made orally and in writing, by both parties to this application, and reference to a multitude of cases, the construction and application of s 292-465 of the ITAA is not particularly difficult. The section, as has been observed in many cases, plainly confers a discretion on the respondent. The Commissioner may make a written determination under subsection (1) of that section, that all or part of a person’s non-concessional contributions for a financial year are to be disregarded or allocated instead for the purposes of another financial year specified in the determination. Such discretion is enlivened and may only be exercised if the Commissioner, or the Tribunal on review stepping into the shoes of the Commissioner, considers that there are special circumstances and the making of the determination is consistent with the object of Division 292 of the ITAA.
30.	As is apparent from an examination of the language used in s 292-465(3) of the ITAA it’s two limbs are conjunctive. Both must be satisfied before the discretion to make the determination contemplated by subsection (1) is enlivened. The ‘considerations’ in that subsection were described by Greenwood J in Commissioner Taxation v Dowling as ‘absolute preconditions to the exercise of the discretion’.
31.	Once again, much debate ensued in submissions about the meaning of the term ‘special circumstances’ referred to in s 292-465(3)(a) of the ITAA. Decisions from several Court and Tribunal decisions were cited which applied the term both in applying s 292-465 (3)(a) and in other settings.
32.	Amongst the many cases that the Tribunal was referred to in submissions, one that helpfully identifies what ‘special circumstances’ are within the meaning of s 292-465(3)(a) of the ITAA was a decision of a Full Court of the Federal Court of Australia of Robertson, Davies and Wigney JJ in Ward v Commissioner of Taxation (‘Ward’). The Full Court stated that as to ‘special circumstances’ the question is what, if anything, takes the case concerned out of the usual or ordinary case. Their Honours cited with approval an observation made by Kiefel J in Groth v Secretary, Department of Social Security, that if a tribunal were to conclude that something unfair, unintended or unjust had occurred, there must be some feature out of the ordinary.
33.	When considering the matters before it, the judges of the Full Court of the Federal Court of Australia in Ward concluded that in their opinion, it was open to the Tribunal, whose decision they were considering, to find that there were ‘special circumstances’ if it found that the provisions operated on the taxpayer, in his individual circumstances, in an unfair or unjust way because, through a misunderstanding of an advisor by virtue of the misleading notice provided by a superannuation fund, the taxpayer, acting honestly and carefully, accidentally breached the bring forward rule which had consequences disproportionate to the intended operation of the statute.
34.	The Court in Ward found that the Tribunal, whose decision was under consideration in that appeal, erred in law by taking too narrow a view of what may constitute ‘special circumstances’ within the meaning of s 292-465(3)(a) of the ITAA. They also observed that this may have been caused by unnecessarily considering factors in isolation before focusing on the entirety of the circumstances said by the applicant to be special. It was certainly caused, in the Full Court’s opinion, by looking at expressions in other decisions and taking those expressions out of their factual and legal context. Further, in their reasons the Full Court accepted, and it was a point emphasised by the applicant in submissions, that questions of fact and degree are involved.
The special circumstances relied upon by the applicant
35.	The applicant contended that the facts relied upon by him in this matter make it uniquely distinguishable from any other case or fact situation considered by this Tribunal under the history of s 292-465 of the ITAA. He emphasised that the context of such previous considerations by this Tribunal involved the addition of a series of non-concessional contributions made on the same financial year, usually inadvertently, which have caused such contributions to be made in breach of the limit or cap applicable in the relevant financial year in which those contributions were made.
36.	In his Statement of Facts, Issues and Contentions (‘A SFIC') lodged in this proceeding, two key elements of the factual matrix were emphasised by the applicant as giving rise to or amounting to special circumstances as contemplated by s 292-465(3)(a) of the ITAA.
37.	They were, firstly, that the special circumstances in the present case arise solely because of a subtraction from his total superannuation balance ordered by the Family Court of Australia on 23 March 2020 in the amount of $427,497. Secondly, the effect of that subtraction was to reduce his total superannuation balance such that it was below $1,400,000, permitting non-concessional contributions to be made without an imposition of additional tax liability.
38.	In terms of special circumstances, reference should also be made to details of ‘special circumstances’ articulated in the ‘Application-excess contributions determination’ made by the applicant to the respondent on 4 August 2021. Some of those matters have been referred to in earlier parts of these reasons. However, it is appropriate to reiterate them. They are as follows:
(a)	On 23 March 2020, the Family Court made orders splitting superannuation and other matrimonial assets;
(b)	In particular, under ‘Superannuation’, it was ordered at clause 13(a) that his ex-wife be entitled to $1,575,000 to be ‘payable from the superannuation interest held by the husband in the “ZH” Superannuation Fund’;
(c)	Clause 13(b) ordered, ‘[T]here shall be a corresponding reduction in the entitlement that the husband would have had in the Fund but for these Orders’;
(d)	The 30 June 2020 Member’s Statement confirmed and quantified this Court-ordered reduction of his entitlement to be $427,497 (see ‘Transfers out and transfers to reserves’);
(e)	The extent of the destruction of his long-term superannuation strategy was clear from the remaining benefit in his Account Balance on 30 June 2020 of $416,048.05 being less than that held in the ‘ZH’ Superannuation Fund 6 years earlier on 30 June 2014 of $504,176;
(f)	Similarly, his total superannuation balance recorded on 30 June 2020 of $1,389,272.50 continued to reflect this drastic reduction. As it remained below $1,400,000, it would have enabled a maximum 3-year non concessional contribution to be brought forward in the 2020-2021 financial year under the rules applicable at that time.
39.	It was also contended by the applicant that special circumstances arose because the subtraction from his total superannuation balance ordered by the Family Court of Australia involved an amount so significant that such balance regressed to a position as it was some 8 years prior.
40.	Additionally, the subtraction of his total superannuation balance following compliance with the orders made by the Family Court of Australia occurred in circumstances where the subsequent non-concessional contribution made by him, which is the subject of this review, comprised less than a quarter of the sum of $427,497 that was subtracted from such balance.
The respondent’s contentions
41.	The respondent contends that the facts and circumstances relied upon by the applicant do not constitute ‘special circumstances’ as contemplated by several authorities when applying or construing s 292-465(3)(a) of the ITAA.
42.	It was submitted that the particular facts applicable to the applicant of marital separation, divorce and property division which culminated in the consent orders being made by the Family Court of Australia on 23 March 2020, which had the effect of splitting or dividing the superannuation entitlements of the applicant and his wife, were not unusual or out of the ordinary course. This contention was developed by the respondent by reference to the fact that the split of the applicant’s superannuation entitlements pursuant to those orders was made pursuant to the Family Law (Superannuation) Regulations 2001, and the orders were made by consent. Consequently, there was not a ‘decimation of his superannuation savings’ or ‘destruction’ of his long-term superannuation contribution strategy as the applicant contended.
43.	Further, the respondent submitted that the applicant’s mistaken belief that he was permitted to make a non-concessional contribution to the ‘ZH’ Superannuation Fund during the 2019-2020 financial year also did not amount to special circumstances as contemplated by or within the meaning of s 292-465(3)(a) of the ITAA. It was contended that ignorance of the existence or effect of the law, or an error on the applicant’s part, even if the error was innocent and made in good faith, did not amount to special circumstances within the meaning of that section.
Has the applicant established special circumstances within the meaning of s 292-465(3)(a) of the ITAA?
44.	The Tribunal has concluded that the applicant has not established ‘special circumstances’ within the meaning of s 292-465(3)(a) of the ITAA.
45.	There was no authority produced to the Tribunal which supported a contention that orders made by the Family Court of Australia splitting the superannuation entitlements of a party to a marriage, as occurred with respect to the applicant, constitute ‘special circumstances’ for the purposes of s 292-465(3)(a) of the ITAA. It should be borne in mind that such orders were Consent Orders. They were Consent Orders made after the applicant and his former wife had access to legal advice. They were Consent Orders approved by a Registrar of the Family Court of Australia. There was nothing in those orders which demonstrated a feature out of the ordinary, unfair, unintended or otherwise unjust in terms of the powers exercised by that Court, which it is empowered to do under the provisions of the Family Law (Superannuation) Regulations 2001. One has to infer that if that were the case, presumably, it would be more likely than not, that the Family Court would not have approved the Consent Orders as it did in this case.
46.	Whilst there was a significant reduction in the applicant’s superannuation balance by reason of the provisions and implementation of Clause 13(a) of the Consent Orders approved by the Family Court, it does not seem to the Tribunal to be either a ‘decimation’ or ‘destruction of …. long-term superannuation strategy’. Regrettably, for the applicant when there is a breakdown of a marriage, there can and frequently are, superannuation implications. This is what occurred in this instance. Notwithstanding that a significant reduction did occur to the applicant’s superannuation balance when the provisions of Clause 13(a) of the Consent Orders had been complied with, there was still a significant balance remaining in the applicant’s member’s account. This was not out of the ordinary, unfair, unintended or otherwise unjust in the relevant sense contemplated.
47.	The contention of the applicant at paragraph 17(b) of his Statement of Facts, Issues and Contentions, that the effect of the subtraction from his total superannuation balance ordered by the Family Court of Australia in the sum of $427,497 was to reduce that balance below $1,400,000 thereby permitting non-concessional contributions to be made without imposition of tax liability, does as the respondent contends, represent a misunderstanding of the legislation. This is because, as noted earlier, by operation of s 292-85 (2) of the ITAA, his non-concessional contributions cap for the financial year ending 30 June 2020 was nil. The reason was that immediately prior to the commencement of the 2019-2020 financial year, his total superannuation balance exceeded the general transfer balance fixed for that financial year in the sum of $1,600,000. Quite clearly, as he contended, had he made the non-concessional contribution of $100,000 in the subsequent financial year, the non-concessional contributions for that year would not have been exceeded.
48.	As has been observed, the cases where special circumstances have been found for the purposes of Division 292, and therefore the discretion enlivened, are very few indeed. A feature of most of the cases where special circumstances have been found to have arisen are due to the taxpayer being actively misled or otherwise acting under a misapprehension as to particular circumstances which have been caused or induced by acts or omissions of others. 
49.	In this case the predicament that the applicant finds himself in was solely due to his failure to understand the application and effect of s 292-85(2) of the ITAA. Whilst he endeavours to contend that the effect of the Consent Orders made in the Family Court of Australia on 23 March 2020 reduced his total superannuation balance by $427,497, and thereby caused such balance to be well below the applicable non-concessional contributions cap, it did not do so for that financial year and, further, had the applicant appraised himself of the provisions of s 292-85(2) of the ITAA, he would not have made the additional non-concessional contribution in the financial year ending 30 June 2020.
50.	It is instructive to briefly look at the fact situations of several cases which can be distinguished from this one. 
51.	In Ward, which was referred to in some detail in submissions, the Tribunal at first instance held that incorrect advice was given by the taxpayer’s financial adviser, such advice being induced by a misleading notice provided by a superannuation fund. The Full Court of the Federal Court of Australia considered that it was open to the Tribunal to find that there were ‘special circumstances’ if it found that the provisions (of Division 292 of the ITTA) operated on the taxpayer, in his individual circumstances, in an unfair or unjust way because, through a misunderstanding of an advisor by virtue of the misleading notice provided by the superannuation fund, the taxpayer, acting honestly and carefully, accidentally breached the bring forward rule which had the consequences disproportionate to the intended operation of the statute. 
52.	In this matter it cannot be said that the misunderstanding on the part of the applicant, however it arose, did not occur by him acting carefully and accidentally in the way contemplated by the Full Court in Ward such as in that case where there was a misleading notice provided by a superannuation fund. The misunderstanding on the part of the applicant in this matter does need to be considered with a degree of reality. It has to be recalled that the applicant is a vastly experienced solicitor, who has practised in a commercial and administrative environment with some significant law firms and should have been capable of considering the nature and effect of Division 292 of the ITAA and in particular s 292-85(2) after the Orders of the Family Court of Australia made 23 March 2020 had been complied with. Had he acted carefully in reading Division 292 he would have readily appreciated that his non-concessional cap for the financial year ending 30 June 2020 was nil. He also could have obtained professional advice on the question, which he did not.
53.	In Hamad v Commissioner of Taxation, special circumstances were found to exist because it was reasonable for the taxpayer to envisage that his employer would make superannuation payments when they were shown in the payment advices issued to him by his employer each month. However, the relevant salary sacrifice amounts for several months were not transferred by the employer to a superannuation fund until a new financial year. The effect of this was that the applicant taxpayer was positively misled by his employer, improperly in the opinion of the Tribunal, by retaining amounts directed to superannuation and subsequently making late payments. This is not what occurred in this case.
54.	In Bornstein v Commissioner of Taxation, amongst other things, there was an apparent ambiguity on the Australian Taxation Office’s website concerning the timing for making contributions because the time permitted for contributions by employers was different to that for employees, which lead to confusion. Senior Member McCabe considered that in a perfect world, such website would have directed a taxpayer with employee obligations with respect to concessional contributions to another part of the website. Another factor that was considered highly relevant was that the applicant taxpayer was denied the opportunity to fix his error or denied the opportunity to avoid compounding an earlier error because the respondent did not alert him to the true position before further payments were made. The Senior Member of the Tribunal was satisfied that collectively such matters were enough to constitute special circumstances. He went on to observe that whilst he would not ordinarily accept that a mere misunderstanding of one’s obligations is enough to constitute special circumstances, there was what might be described as ‘a “perfect storm” of events, miscommunications and misunderstandings that combined to leave the taxpayer in an unusual and unfortunate position’. That is not the case with respect to the applicant in this matter. The mistake was entirely of his own doing as has been described.
55.	In Longcake v Commissioner of Taxation (‘Longcake’), special circumstances were held to exist for several reasons. These reasons included the fact that salary sacrifice contributions were to be paid on a monthly basis. The employer failed to make some payments each month in breach of its agreement with the taxpayer. This caused the applicant to continue to allow other salary sacrifice deductions and contributions to be made to a superannuation fund when the taxpayer was completely unaware that he would be exceeding the non-concessional cap. Because he had no knowledge of that problem, he had no opportunity to correct the error. There were also large irregularities in employer contributions to be made by way of salary sacrifice payments. This led to additional contributions being made to the superannuation fund in a subsequent financial year of which the taxpayer was unaware. Once again, it is not difficult to see that the underlying facts and circumstances of Longcake are at considerable variance with this matter.
56.	Several cases were referred to in submissions which establish that poor judgement or an ignorance of the law on the taxpayer’s part, or indeed poor professional advice received by the taxpayer, do not of themselves constitute special circumstances. Similarly, special circumstances do not arise as a result of simple errors, albeit innocent errors or other mistakes which are made in good faith. It has to be repeated that had the applicant, an experienced legal practitioner, carefully read the provisions of Division 292 of the ITAA and specifically the effect of s 292-85(2) as it applied to his position after the orders of the Family Court of Australia had been complied with, it should have been readily apparent to him that the non-concessional cap for the financial year concerned in his case was nil. It was as he readily conceded an honest mistake on his part. Nonetheless, the Tribunal cannot conclude that such an honest mistake can be elevated to the status of ‘special circumstances’ within the meaning of s 292-465 (3)(a) of the ITAA. 
57.	Even if one were to give the applicant some level of latitude with respect to his oversight or lack of knowledge of the effect of s 292-85(2) as it applied to his position after the orders of the Family Court of Australia had been complied with, it seems surprising given that it was the first occasion on which he had made a non-concessional superannuation contribution during his working life that he might not have cross checked his ability to do so by carefully examining the provisions of Division 292, or alternatively, seeking additional legal or taxation advice. Regrettably, it cannot be said that the applicant, to repeat the words of the Full Court in Ward, ‘acting … carefully, accidentally breached the bring forward rule which had consequences disproportionate to the intended operation of the statute’.
CONCLUSION AND DECISION
58.	By reason of the foregoing matters the Tribunal concludes that the applicant has not established that there are ‘special circumstances’ as required by s 292-465(3)(a) of the ITAA. As the applicant has not established ‘special circumstances’ as required by section 292-465(3)(a) of the ITAA, which as noted earlier is an absolute precondition to the exercise of such discretion, the discretion to make a determination under that section on the part of the Commissioner, or the Tribunal standing in the shoes of the Commissioner as decision-maker on review, is not enlivened.
59.	Therefore, with considerable regret, the Tribunal affirms the objection decision made by the respondent on 12 May 2023.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member	

......................[SGD]...........................
Associate

Dated: 10 October 2024

Date(s) of hearing:	22 August 2024	
Applicant:	Self-Represented	
Solicitors for the Respondent:	Mr Preesan Pillay, Senior Lawyer, Australian Tax Office