XPMX v Commissioner of Taxation
[2008] AATA 981-
The impact of this case on ATO policy is discussed in Decision Impact Statement: XPMX and Commissioner of Taxation (Published 22 December 2008).
XPMX
vCommissioner of Taxation
Member:
Senior Member R W Dunne
Subject References:
SUPERANNUATION
self managed superannuation fund
trustees' failure to comply with regulatory requirements
various contraventions
audit of fund
opportunities provided to remedy contraventions
failure to remedy contraventions
decision to issue notice of non-compliance
decision set aside
Legislative References:
Superannuation Industry (Supervision) Act 1993 - s 3(1); s 17A(2); s 34(1); s 36(1); s 40(1); s 42(1); s 42(1A); s 42A(1); s 42A(5); s 111(1); s 112; s 113(1); s 120A(3); s 262A(1)
Superannuation Industry (Supervision) Regulations 1994 - Reg 4.09
Case References:
The Administration of the Territory of Papua New Guinea v Daera Guba - (1973) 130 CLR 353
Ousley v R - (1997) 192 CLR 69
Anderson v Commissioner of Taxes (Vic) - (1937) 57 CLR 233
Liquor Administration Board (NSW) v Wolfe - (1993) 32 NSWLR 328
Decision date: 5 November 2008
Adelaide
DECISION
22. For the reasons above, the Tribunal sets aside the decision under review and substitutes a decision that:
- (a)
- pursuant to s 262A of the SIS Act, the trustees of the Fund are provided the opportunity to furnish a written undertaking to transfer and roll-over the Fund into a nominated industry, retail or public offer fund which is a complying superannuation fund; and
- (b)
- within the period of 14 days of the publication of these reasons, the trustees furnish the written undertaking to the respondent and then, within that same period, they give effect to the undertaking by transferring and rolling-over the Fund to the industry, retail or public offer fund so nominated.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .............J Coulthard........................................
Associate
Date of Hearing 11 June 2008
Date of Decision 5 November 2008
Advocate for the Applicant Self represented
Advocate for the Respondent Mr R Riviere
ATO Legal Practice