3.1 Stakeholders have expressed a number of concerns with the ATO's end-to-end process for identifying and communicating potential excess contributions to taxpayers. In particular, these concerns include:

  • the lack of information regarding the ATO's approach to disregarding small excess contributions (de minimis approach) leading to some uncertainty and perceptions of inconsistency regarding the ATO's approach;
  • the initial contact by the ATO to inform taxpayers of potential excess contributions through its pre-assessment and ECT determination letters does not provide taxpayers with enough information to confirm the accuracy of information used by the ATO or to address any issues in relation to the contribution information;
  • there are inherent difficulties with correcting superannuation fund information on which the ATO relies;
  • the ATO is not, or is not seen to be, exercising the Commissioner's discretion consistently; and
  • when considering discretion applications, the ATO is not adequately engaging with taxpayers and their advisers.

De minimis approach

3.2 In identifying excess contributions and determining assessments which should issue, the Commissioner adopts the view that it is appropriate to not issue an ECT assessment where the excess contribution is below a certain pre-set threshold.185 This is generally referred to as a de minimis approach and which the Commissioner adopts pursuant to his power of general administration under section 8 of the Income Tax Assessment Act 1936.

3.3 In practice, there are two separate steps in the ATO's de minimis approach. First, where the ATO detects contributions above either the concessional or non-concessional cap but under a particular pre-set threshold (the de minimis threshold), the ATO will disregard the excess contributions and no correspondence or assessment will be issued to the taxpayer.186

3.4 Secondly, as excess concessional contributions are also classified as non-concessional contributions, 'a small breach of the concessional contributions cap [may] cause a breach of the non-concessional cap'187. In these circumstances, where the concessional cap is exceeded by an amount less than the de minimis threshold, this amount is disregarded for the purposes of calculating excess non-concessional contributions and the ATO will also take no action to assess the taxpayer for ECT in relation to the excess non-concessional contributions.188

3.5 The ATO has indicated at its external consultation forum, the Superannuation Consultative Committee (SCC)189, that it would apply the de minimis approach to all cases, including past cases.190 However, the ATO has not confirmed whether it will continue to apply the de minimis approach to excess concessional contributions as a result of the legislative changes in 2013.

3.6 The general process through which the ATO identifies and applies its de minimis approach is outlined in Figure 5.

Figure 5: ATO ECT de minimis process

Chart setting out the ATO ECT de minimis process.

Source: Adapted from ATO information. An A4 version of this diagram is provided in Appendix 3.

View enlarged image

3.7 The ATO has advised that the de minimis threshold is reviewed and updated annually to reflect material economic, financial or legislative changes. The basis for calculating the de minimis may differ from year to year.

3.8 Statistics from the ATO indicate that between the 2009-10 and 2011-12 financial years (inclusive) a large number of taxpayers who have exceeded either or both of the contributions caps have benefited from the de minimis approach. Table 17 sets out the number of cases between 2009-10 and 2011-12 in which the ATO identified taxpayers who have exceeded their contributions cap by an amount less than the de minimis threshold and did not take action to impose the ECT.

Table 17: Number of cases in which de minimis approach taken
Type of cap exceeded Number of excess contributions under de minimis threshold
2009-10191 2010-11 2011-12
Concessional cap 28,552 28,828 23,161
Non-concessional cap 1,543 1,302 694
Both caps 259 222 84

Source: ATO192

3.9 The data in Table 17 illustrates that during 2009-10 and 2010-11, the numbers of taxpayers who exceeded their contributions caps by amounts under the de minimis threshold remained relatively constant. For 2011-12, however, there was a clear decrease. In respect of excess concessional contributions, there was a 20 per cent reduction of such cases from 28,828 to 23,161. This reduction was more pronounced in relation to excess non-concessional contributions which decreased by 47 per cent (from 1,302 to 694) and in cases where taxpayers exceeded both caps (a 63 per cent reduction from 222 to 84).

IGT observations

3.10 During consultation for the current review, stakeholders indicated that they welcomed the ATO's de minimis approach when informed that such an approach was being adopted. However, it is evident that there is a clear lack of information regarding the ATO's practice in this regard and stakeholders either were unaware of the ATO's de minimis approach or were only able to draw very general information from the minutes of the SCC meeting at which the issue was discussed.

3.11 The ATO has advised that by disclosing the amount of the de minimis threshold itself taxpayers could unfairly obtain a benefit by making excess contributions up to the threshold on an ongoing basis. The ATO is also concerned that this threshold could be reasonably estimated if the ATO notified taxpayers that the de minimis approach had been applied in their case.

3.12 In the IGT's view, a greater level of public information in relation to the ATO's processes may assist to manage perceptions that the ATO may be acting inconsistently, for example, not applying the de minimis approach to materially similar cases. Such transparency instils greater confidence in the ATO as a fair administrator.

3.13 Therefore, the IGT considers that the ATO should publish more details about its de minimis approach. Such information could include the ATO's management of these cases more generally and, importantly, what taxpayers can do if they consider that they are within these limits but have nonetheless been issued with a notice of assessment for the ECT.

3.14 The IGT acknowledges that publishing the de minimis thresholds may increase the risk that benefits may be unfairly obtained by some taxpayers. However, an important educative opportunity may be lost if taxpayers are not alerted to the fact that they have made excess contributions but that no action will be taken by the ATO because the excess contribution was small and that they should take more care in future years. In the IGT's view, such ATO communication would influence taxpayer behaviours towards voluntary compliance and promote confidence in the ATO as a fair and transparent administrator.

Recommendation 3.1

The IGT recommends that the ATO:

  1. publish further information on its ECT de minimis approach, including, how the ATO identifies and treats such cases and what taxpayers can do if they consider that their case qualifies for 'de minimis' consideration but have nonetheless received an ECT assessment; and
  2. inform taxpayers when the de minimis approach has been taken in relation to their excess contributions.

ATO response

Disagree

3.1(a) The ATO does not agree with this recommendation as it may lead to the de minimis threshold being known or reasonably estimated. This may give rise to individuals unfairly obtaining a benefit by making excess contributions up to the threshold on an ongoing basis. However, the ATO agrees to publish on its website general information on the de minimis approach. The ATO is of the view that taxpayers already have appropriate avenues to seek review of their particular circumstances if they have concerns. It should be noted that the operation of the de minimis does not disadvantage any taxpayer and we have no evidence of any individual receiving an assessment when they 'qualify' for the de minimis.

3.1(b) As per response to Recommendation 3.1(a) the ATO does not agree with this recommendation as it may lead to the de minimis threshold being known or reasonably estimated and may give rise to individuals unfairly obtaining a benefit by making excess contributions up to the threshold on an ongoing basis. In addition, part of the basis for a de minimis approach is to minimise costs of compliance for taxpayers and their advisers as well as ATO administration costs. Informing taxpayers when they are under the de minimis would increase administration and compliance costs. However, consistent with other recommendations in the report not directly linked to the de minimis (for example Recommendation 2.2(c)), the ATO agrees to explore options to assist taxpayers understand and monitor their contributions, including those individuals who may be getting close to exceeding their caps.

It should be noted that under legislative changes made to ECT from 1 July 2013 all individuals will have the opportunity to withdraw from their fund up to 85% of their excess concessional contributions (ECC). In addition, if a person has ECC, these will be at their marginal tax rate rather than the previous rate which was equivalent to the top marginal tax rate. These changes will largely negate any adverse tax impacts previously experienced by some individuals.

Content of pre-assessment and determination letters

3.15 Stakeholders have expressed concern that the ATO's pre-assessment letter, although quantifying the total excess contributions, does not identify the specific superannuation funds which have reported the contributions information to the ATO.193 This letter is the ATO's first notification to taxpayers of any identified excess contribution and taxpayers feel frustrated and anxious that they cannot determine if the reported figures are correct, especially where contributions have been made some time ago and/or to a number of different funds.

3.16 It should be noted that as a result of the recent legislative change in relation to the treatment of excess concessional contributions, from 1 July 2013, the ATO will no longer be relying on the pre-assessment letter to advise taxpayers of excess concessional contributions. Instead, the ATO has developed an ECT determination letter to issue to taxpayers. Like the ECT pre-assessment letter, the ECT determination letter only provides the amount of excess contributions as a global figure and does not specifically identify the amount of contributions reported by each fund. Furthermore, stakeholders have also observed that the ATO has in some cases, denied access to that specific information when requested. In respect of this latter point, the ATO has advised that its general policy is to provide taxpayers with information upon request where such requests are made in writing.

3.17 The ECT determination letter has recently been subjected to user-testing through the ATO's simulation centre. A report of the simulation centre noted that participants, both taxpayers and tax agents, had 'difficulty understanding the concepts and terminology associated with excess super contributions'194 and that 'the whole process confused participants (especially individual taxpayers). All individuals stated they would call the ATO for more information at least once.'195

3.18 Taking into account both general and specific feedback from the simulation centre, the ATO is presently updating the proposed ECT determination letter before implementing it for use as part of the ECT process.

3.19 In addition to the ECT determination letter, the ATO has also developed a suite of other correspondence and documents to be used when interacting with taxpayers in relation to the ECT. These letters and information sheets may be used where there are changes in the levels of taxpayer excess concessional contributions or to provide further information to taxpayers of the election to withdraw excess concessional contributions from relevant superannuation funds and the consequences of not doing so. As at the date of this report, this additional suite of correspondence has not been user-tested through the simulation centre.

IGT observations

3.20 Where the ATO relies upon third party data, it is imperative that correspondence issued to taxpayers, such as pre-assessment, assessment or determination letters, provides them with sufficient information to enable them to address any inaccuracies at the source. Where taxpayers request further information, the ATO should respond to such requests regardless of the means by which they are made. This is particularly important in the context of the ECT where one of the main means of challenging perceived excess contributions is to correct information reported to the ATO by superannuation funds.

3.21 To this end, the provision of global concessional and non-concessional figures may not be sufficient to assist taxpayers to determine whether the amounts are accurate and, if not, identify where errors may have occurred. Identifying the total contributions purportedly made to each superannuation fund by, or for, the taxpayer would better assist taxpayers in this regard.

3.22 The IGT notes that the ATO currently provides this level of detail in respect of a number of its data matching projects, including bank interest and dividend data matching. In those letters, which were examined by the IGT in his review of the ATO's use of data matching,196 a schedule accompanies the letter which outlines the amount of interest or dividend and other details, such as the relevant accounts from which these amounts originated.

3.23 The IGT has recently examined the ATO's use of standardised correspondence to individual taxpayers in his review into the ATO's Income Tax Refund Integrity Program197 and the ATO's use of data matching.198 In those reviews, the IGT noted the observations made by the Commonwealth Ombudsman regarding the ATO's communication with individual taxpayers and the opportunities which exist for the ATO to enhance its understanding of the 'behavioural' responses to its communications.199 Moreover, the IGT noted that applied research supports such an approach where randomised control trials are used to test the effectiveness of such communications.200

3.24 The IGT supports the user-testing of ATO correspondence. Such testing ensures that the ATO receives feedback directly from taxpayers and tax agents regarding the effectiveness of proposed correspondence to generate intended responses and reduce unnecessary action.

3.25 Given the complexity of superannuation and the ECT regime, the IGT considers that there are benefits in the ATO also conducting such research in its design of new correspondence for the ECT. Such a process should specifically consider whether the proposed letters will generate the intended taxpayer response by reference to matters including the level of content, detail and direction to taxpayers. It should also seek to minimise compliance costs arising for taxpayers, tax agents and the ATO by reducing unnecessary action.

Recommendation 3.2

The IGT recommends that the ATO improve its correspondence with taxpayers on ECT matters by:

  1. updating the pre-assessment and determination letters to include the quantum of contributions reported by each superannuation fund; and
  2. user-testing all new standardised correspondence to evaluate their effectiveness in generating the intended taxpayer response.

ATO response

Agree in principle with recommendation 3.2 (a).

We could not commit to implementing any systems changes of this nature in the foreseeable future due to other legislative and administrative priorities.

However, the ATO is supportive of the objective to make information available to taxpayers to assist in understanding their superannuation affairs. Accordingly, should the opportunity arise, the ATO will consider options to provide easier access to contributions data reported to the ATO by superannuation funds.

Agree with recommendation 3.2 (b).

Addressing incorrect information with superannuation funds

3.26 While it is open for taxpayers to approach their superannuation funds to seek a correction of any inaccurate or incomplete contributions information which may have been reported to the ATO, taxpayers and their advisers have complained that it is sometimes difficult to engage with superannuation funds to discuss and rectify what taxpayers consider to be errors. Similarly, superannuation funds have noted difficulties in assisting taxpayers where mistakes have occurred.

3.27 Stakeholders submit that in such a situation the taxpayer is effectively 'stalemated' between the ATO and the fund and is unable to correct the information underlying the ECT assessment.

3.28 For example, in one case, the taxpayer made a very large contribution intending it to be exempt from the ECT regime. However, in making the contribution, a relevant accompanying form to claim the exempt status was not provided by the taxpayer. The superannuation fund administrator therefore processed the contribution as a concessional contribution which in turn led to an ECT assessment being issued to the taxpayer. The taxpayer was unsuccessful in persuading the fund to make corrections as the fund considered that the ATO would apply penalties against it if it assisted the taxpayer to correct his error retrospectively. The fund considered that the best outcome would be to obtain ATO approval to process the correction. However, it was unclear how to engage with the ATO in this regard.

IGT observations

3.29 The ATO is aware of occasions where difficulties have been experienced by taxpayers in seeking to address perceived inaccuracies directly with their superannuation funds. In certain cases, the ATO has intervened to assist taxpayers to address informational errors reported by funds. However, the ATO has advised that due to the infrequency of such occurrences, the process is presently ad hoc.

3.30 The IGT considers that such ATO assistance appears largely reliant upon taxpayers or their advisers having access to appropriate ATO contact personnel.201 Accordingly, there would be considerable benefit in the ATO establishing appropriate channels of escalation for taxpayers, their advisers and superannuation funds to seek assistance in correcting superannuation fund errors. Such assistance may take a number of different forms including the ATO resolving superannuation funds' concerns with whether information may be corrected, providing more detailed information to taxpayers or, in appropriate cases, intervening in discussions with the superannuation fund.

Recommendation 3.3

The IGT recommends that the ATO:

  1. provide taxpayers, their representatives and superannuation funds with assistance to correct superannuation fund data errors relating to taxpayer contributions; and
  2. widely communicate, for example through its website, newsletters or industry consultation forums, the availability of this assistance.

ATO response

Agree.

Consistency of the Commissioner's discretion decisions

3.31 In addition to the concerns with the scope of the Commissioner's discretion, which is discussed in Chapter 2 of this report, stakeholders raised concerns regarding the consistency of the exercise of that discretion.

3.32 Some stakeholders considered that the ATO was exercising the discretion in certain cases and not in others with similar circumstances. Other stakeholders considered that the ATO was exercising the discretion consistently, however, suggested that perceptions of inconsistency arise because the ATO's guidance on the exercise of discretion is not easily understood, does not take into account recent cases and does not accord with individual perceptions of 'special circumstances' especially where cases involve serious injury or bereavement.202 In some cases, stakeholders considered the guidance insensitive and dismissive, such as that in an ATO example which noted, without any empathy 'It isn't unusual for a person to experience stress, illness or bereavement … Therefore, we won't exercise the discretion just because you were ... experiencing a difficult time — for example, … grieving for a deceased relative or friend'.203

3.33 As outlined earlier, all discretion decisions recommended by an ATO officer are approved by another before being issued to taxpayers and recorded in the ATO's enterprise case management system, Siebel. Moreover, complex or novel applications for exercise of the discretion are escalated to either a complex advice team or the 'ECT dedicated workshop' for actioning and advice. The ATO considers that these escalation processes help to ensure consistency of discretion decisions. In addition, those decisions which contain novel elements are circulated to relevant ATO staff for future reference. Such decisions are also made available in an excel spreadsheet that is updated periodically.

3.34 The ATO has also advised that another way in which it seeks to assure itself of the consistency and accuracy of its discretion decisions is through the Integrated Quality Framework (IQF) which rates sampled cases against a series of nine criteria, including correctness, consistency and timeliness. The ATO reviews both pre-issue IQF assessments, in which sampled cases are assessed before final letters are issued to taxpayers, and post-issue IQF assessments in which internal and external assessors examine and evaluate finalised cases.204

3.35 In IQF data provided by the ATO, the main issues in relation to the management of ECT discretion cases appear to arise from issues of timeliness and efficiency. In the 2012-13 year, two cases were identified as having been incorrectly determined. In the first of these, the excess contribution arose from SG payments properly attributable to another year and not disregarded. In the second, the ATO identified that the discretion should have been exercised in the taxpayer's favour and amended its decision to reflect this conclusion.205

3.36 In addition, McKerracher J had opined in the Liwszyc case that 'the approach taken by the Commissioner does accord with numerous decisions of the AAT and conforms with the particular Division of the Act.'206

IGT observations

3.37 It is imperative that decisions made in respect of similar facts are consistent. Where this does not occur it can lead to reduced confidence in the administrator and increased instances of disputes.

3.38 The ATO's efforts to ensure consistency of its discretion decision making are through its escalation channels, approval processes and advisory panels, as described earlier. Moreover, the circulation of cases with novel elements and updating of the aforementioned excel spreadsheet should assist ATO officers to apprise themselves of relevant approaches in new or unique cases. While the Siebel system does enable case officers to undertake specific keyword and phrase searches of the reasons for ECT discretion decisions, the number of search results makes it impractical for ATO officers to review each one for relevance. For example, a search for 'illness' in relation to the ECT discretion yields 216 case results. The ATO therefore uses the excel spreadsheet to highlight cases it considers contains novel elements or which bear precedential value.

3.39 In these circumstances, it appears that consistent decision making relies on the officer in question having acquainted themselves with the available information and undertaken appropriate searches of Siebel and the excel spreadsheet to identify past decisions which may assist these officers when making discretion decisions. The IGT notes that the ATO's internal instructions for the management of ECT discretion cases do not expressly require ATO officers to undertake such searches.207

3.40 Accordingly, the IGT considers that there would be benefits in the ATO improving the search functionality for ECT discretion decisions and expressly requiring those officers exercising the Commissioner's discretion to identify and consider earlier decisions on similar facts as part of their decision making. Such a requirement would assist ATO officers in their decision making and would allow approving officers to double check the correctness and consistency of decisions made by ATO officers against earlier decisions.

3.41 Notwithstanding the measures to ensure the consistency of ATO decisions, taxpayers may nonetheless perceive that the ATO is acting inconsistently. Such perceptions appear to arise from differing opinions on what circumstances would warrant the exercise of the discretion. The ATO's guidance on this issue was published a number of years ago and, since that time, a large number of cases have been considered by the ATO and the AAT.

3.42 The IGT considers that it is timely for the ATO to review and update that guidance to address perceptions of inconsistency and insensitivity. As part of this review, the ATO could analyse and review trends of ATO and AAT decisions to determine frequently occurring factual scenarios and issue public guidance based on those scenarios through such channels as ATO IDs, fact sheets and updated examples on the ATO's website.

Recommendation 3.4

The IGT recommends that the ATO:

  1. improve the search functionality for ECT discretion decisions and require relevant ATO officers to search and have regard to all relevant decisions when considering whether to exercise the Commissioner's ECT discretion;
  2. update its public guidance to include guidance on commonly occurring factual scenarios in discretion applications; and
  3. review existing public guidance to ensure that wording used, particularly in examples of the exercise of the Commissioner's discretion, does not create perceptions of insensitivity.

ATO response

Agree in part with recommendation 3.4 (a).

The ATO is of the view that the current search functionality of the databases holding ECT discretion decisions is appropriate and cannot commit to IT improvements. However, we agree to review our training products and procedures to ensure staff can locate and have regard to all relevant decisions when considering the exercise of the Commissioner's discretion.

Agree with recommendation 3.4 (b). Agree with recommendation 3.4 (c).

Taxpayer engagement and further information

3.43 In relation to the exercise of the Commissioner's discretion, stakeholders have raised concerns regarding the ATO's requests for information and its consideration of information provided by taxpayers. These concerns include that:

  • ATO information requests are not easily understood;
  • information requested by the ATO may be aged or difficult to obtain, especially in certain cases of adviser fraud where steps have been taken to keep the information out of reach;
  • there are only limited opportunities to engage with the ATO on ECT matters, particularly in relation to the possibility of conducting face-to-face meetings to enable taxpayers to provide and discuss relevant information to assist the ATO in its decision making; and
  • the ATO does not always explain how the information provided by the taxpayer was used in arriving at the ATO's final decision.

3.44 The ATO has provided the IGT a copy of standardised correspondence which it uses to request information from taxpayers. While the correspondence is succinct in its approach, the IGT notes that the letter does not appear to prompt ATO officers to explain why the information is requested and how it will assist in making the decision.

3.45 The ATO's internal guidance to its staff on the exercise of the discretion does not specifically contemplate opportunities for meetings between the ATO and taxpayers. Instead, in relation to requesting further information, the instruction states:208

Where the applicant has not provided enough information to enable you to make a decision, you must request the information required. You can request the necessary information by telephone or by letter.

In accordance with the service standards, if you need further information from the applicant, you should try to request this within 14 days of the case being received by the ATO.

However, for complex cases, where a request for further information is unable to issue within 14 days of original receipt, the applicant must be contacted within 14 days to discuss an appropriate timeframe for issue of the request for further information.

Telephoning the applicant is the preferred method of contact for further information requests where the taxpayer can provide further information you need over the telephone.

If the applicant cannot provide further information over the telephone, a date for supply of that information may be negotiated within a limit of 28 days. You should generate a letter detailing what additional information is required and the due date. A shorter timeframe should be negotiated whenever possible to allow a fast turnaround time for your case.

3.46 The ATO's internal guidance also requires ATO officers to consider facts and additional information before arriving at their decision.209

IGT observations

3.47 The IGT has also examined and commented on the ATO's approach to requesting information in earlier reviews, including the alternative dispute resolution and large business reviews.210 A persistent theme in these reviews is the need to engage with taxpayers to sufficiently outline the reasons why information is sought and work with taxpayers to identify alternate sources of information which may assist the ATO's inquiry where specific documents are not available.

3.48 More recently in the reviews into the ATO's Income Tax Refund Integrity Program and its use of data matching, the IGT has noted that when dealing with individual taxpayers, the ATO must ensure that its communication and engagement enables these taxpayers who may possess varying degrees of tax proficiency, to fully understand the ATO's position, any actions required of them and the consequences for failing to take the required actions.211

3.49 Moreover, it is equally important that the reasons for any decisions which may have an impact on the tax liability of taxpayers are easily comprehensible and are communicated concisely. Where taxpayers have provided information which could reasonably support an alternative decision, it is critical that the reasons explain how such information was considered.

3.50 The IGT notes that the ATO's internal instructions are precise in relation to the steps which ATO officers must take throughout the discretion process, including requesting information and considering such information before arriving at a final decision. The ATO also encourages its officers to directly engage with taxpayers and their advisers, preferably through telephone discussions, and notes the benefit of such engagement in building a professional working relationship, instilling taxpayer confidence and minimising the risk of disputes.212

3.51 While the ATO may encourage such engagement, it is not made clear on the face of the instructions which relate specifically to ECT. In the absence of such instructions, ATO officers may feel constrained in what they may or may not do.

3.52 The IGT acknowledges the difficulties and resource constraints faced by the ATO when dealing with large numbers of taxpayers. In this regard, the IGT notes that, in line with recommendation 3.2 in this report, where the ATO's suite of correspondence is appropriately designed and user-tested, it should improve the ATO's written explanations and therefore improve taxpayer understanding. Notwithstanding such improvements, however, there will always be instances in which taxpayers will need further assistance from the ATO to understand matters before them or actions they may need to take. Where this occurs, the IGT considers that the ATO's processes should allow for engagement, appropriately tailored, to assist such taxpayers. These may include opportunities to better focus and narrow the scope of information requested through discussions and seeking feedback from taxpayers as to whether any further relevant information may be available before proposed decisions are finalised.

Recommendation 3.5

The IGT recommends that the ATO update its internal instructions to encourage direct engagement with taxpayers and their advisers, particularly:

  1. where the ATO is requesting information which may be aged or complex;
  2. to discuss how information provided has been considered and how it will impact any proposed decisions; or
  3. where taxpayers specifically request meetings with ATO officers to discuss their circumstances or any information which has been provided.

ATO response

Agree.

With regard to Recommendation 3.5(c), it should be noted that meetings requested by taxpayers would generally be via phone not face to face.


185 ATO communication to the IGT, 22 March 2013.

186 ibid.

187 ATO, Superannuation Consultative Committee, Minutes of the March 2012 meeting, Item 6.

188 Above n 185.

189 The SCC has since been merged into the Superannuation Industry Advisory Group.

190 Above n 187.

191 This represents the year in which the ATO received all relevant information and identified that the taxpayer had exceeded their contributions caps. It is not the year in which the contributions were made.

192 ATO communication to the IGT, 22 March 2013.

193 Above n 71.

194 ATO, 'Excess Concessional Contributions usability test report', internal ATO document, 2013, p 4.

195 ibid.

196 Above n 2.

197 Above n 1.

198 Above n 2.

199 Joint Parliamentary Committee of Public Accounts and Audit, Ninth Biannual Hearing with the Commissioner of Taxation, Official Committee, Hansard, 23 September 2011, p 15.

200 UK Cabinet Office Behavioural Insights Team, Applying behavioural insights to reduce fraud, error and debt, 2012, p 21.

201 ATO communication to the IGT, 16 January 2013.

202 See for example, ATO, Excess contributions tax: non-concessional contributions - contribution to fund within 90 days of receiving a court ordered personal injury payment, ATO ID 2007/224, 14 December 2007 and ATO, Excess contributions tax: non-concessional contributions - personal injury payment - contribution to fund within 90 days of receiving a payment from Public Trustee (NSW), ATO ID 2008/142, 31 October 2008.

203 Above n 128.

204 ATO communication to the IGT, 13 February 2013.

205 ATO communication to the IGT, 25 February 2013.

206 [2014] FCA 112 at [80].

207 ATO, 'IA reference guide, excess contributions tax discretion', 25 October 2013, internal ATO document.

208 Above n 207, stage 2.2.

209 ibid, Task 3.1.1.

210 Above n 183; IGT, Report into the Australian Taxation Office's large business risk review and audit policies, procedures and practices, 7 September 2011.

211 Above n 1; above n 2.

212 ATO, 'Online Resource Centre for Law Administration — engaging with the taxpayer', 10 October 2013, internal ATO document.