ATO Interpretative Decision

ATO ID 2003/872

Superannuation

Reconsideration of a reviewable decision
FOI status: may be released

This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.

Issue

Can the Regulator make a decision with respect to a 'reviewable decision' under section 344 of the Superannuation Industry (Supervision) Act 1993 (SISA) once the sixty-day period allowed to review the decision by subsection 344(5) of the SISA has lapsed?

Decision

No, the Regulator cannot make a decision with respect to a 'reviewable decision' under section 344 of the SISA once the sixty day period allowed to review the decision by subsection 344(5) of the SISA has lapsed.

Facts

The trustee requested that the Regulator reconsider a reviewable decision pursuant to subsection 344(1) of the SISA.

The Regulator did not respond to the request for a review within the sixty-day period allowed by subsection 344(5) of the SISA.

Reasons for Decision

Subsection 344(1) of the SISA allows a person who is dissatisfied with a decision of the Regulator to request a review of the decision. Subsection 344(1) of the SISA states:

'A person who is affected by a reviewable decision of the Regulator may, if dissatisfied with the decision, request the Regulator to reconsider the decision.'

For the purposes of subsection 344(1) of the SISA the Regulator includes the Commissioner of Taxation. The term 'reviewable decision' is defined in subsection 10(1) of the SISA.

Subsection 344(5) of the SISA provides that where the Regulator does not confirm, vary or revoke a decision within sixty days of receiving a request for a review, the Regulator is taken to have confirmed the original decision. The Regulator has no power to extend the period for reviewing a decision beyond the sixty-day period.

Under subsection 344(8) of the SISA, a person affected by the Regulator's decision, including a decision arising as a result of the application of subsection 344(5) of the SISA, may apply to the Administrative Review Tribunal (ART) for a review of that decision. The time for applying to the ART commences on the date the decision is made and ends on the twenty-eighth day after the date of the decision as per subsection 344(9) of the SISA (now repealed). Former subsection 344(9) has been replaced by section 18 of the Administrative Review Tribunal Act 2024 and rule 5 of the Administrative Review Tribunal Rules 2024.

This ATO ID has been amended to include an explanation of the right of a person to appeal against the regulator's decision.

Amendment History

Date of amendment	Part	Comment
10 September 2025	Reason for Decision	Corrected typing error and changed AAT to ART and updating repealed legislation
11 April 2014	Reason for Decision	Corrected typing error in final paragraph.

Date of decision: 22 September 2003

Year of income: Year ended 30 June 2003

Legislative References:
Superannuation Industry (Supervision) Act 1993
   Subsection 10(1)
   Section 344
   Subsection 344(1)
   Subsection 344(5)

Administrative Review Tribunal Act 2024
Section 18

Administrative Review Tribunal Rules 2024
Rule 5

Keywords
SMSF trustee

Siebel/TDMS Reference Number: 3200405; 1-7QYKWPP; 1-FZRSRJG

Business Line: Superannuation

Date of publication: 26 September 2003
Date reviewed: 4 September 2025

ISSN: 1445-2782

history

	Date:	Version:
	22 September 2003	Original statement
	11 April 2014	Updated statement
You are here	10 September 2025	Updated statement

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