TRUSTEE FOR THE R ALI SUPERANNUATION FUND v FC of T

Tribunal:
Administrative Appeals Tribunal, Melbourne

MEDIA NEUTRAL CITATION: [2012] AATA 44

Decision date: 30 January 2012

Frank O'Loughlin (Senior Member)

1. During the 2005 to 2008 financial years the R Ali Superannuation Fund was a Self-Managed Superannuation Fund created at the direction of, and effectively controlled by, Mr Ali, a registered tax agent. The Fund accepted superannuation contributions and superannuation fund balances in respect of Mr Ali, his wife and two daughters, all of whom were trustees and members. This money, representing all or substantially all of the assets of the Fund, was then lent to Alnaz Pty Ltd, a company controlled by Mr Ali. Alnaz then lent that money to members of the Fund and/or business entities in which a member of the Fund was interested.

2. On 28 June 2010, in his capacity as Regulator pursuant to the Superannuation Industry (Supervision) Act 1993 (C'th), the Commissioner issued a notice under s 40 of the Act that the Fund was not a complying superannuation fund for the 2006 year of income because:

(a) the Trustees of the Fund had contravened ss 62, 65, 84 and 109 of the Act; and
(b) the Fund had not passed the test in s 42A(5) of the Act.

3. The Commissioner reviewed and affirmed the decision to issue the s 40 notice.

Issues for determination

4. The issues for determination are whether:

(a) the Commissioner's was entitled to issue the s 40 notice; and
(b) if the Commissioner was so entitled because there had been contraventions of the Act, the Commissioner ought to have issued a notice of compliance exercising his power pursuant to s 42A(5)(b) of the Act.

The legislative scheme

5. Section 40 of the Act allows the Commissioner to give a notice in respect of a non-complying superannuation fund. Such a notice is to be upheld in circumstances where the fund fails to demonstrate that it is a complying fund and that the s 42A(5)(b) discretion ought be exercised.

6. A fund will not be a complying fund if its trustee contravened any of the regulatory provisions of the Act in relation to the fund during the year of income.^[1] See s 42A(5)(a) of the Act. Regulatory provisions include:

(a) s 62 of the Act, which requires a fund to be maintained for the sole purpose of providing superannuation, death and related benefits;
(b) s 65 of the Act which prohibits trustees from lending fund money, or providing financial assistance using fund money, to members or relatives of members of funds;
(c) s 84 of the Act which requires a trustees of funds to ensure in-house asset rules are not breached; and
(d) s 109 of the Act which requires trustees to make investments of superannuation money on arm's length terms.

7. Section 42A(5)(b) of the Act is a relieving discretion. The legislative scheme in which that section sits is one that:

(a) taxes taxable income on a concessional basis if a fund complies with a range of conditions, which includes conditions concerning the use to which superannuation funds may be put; and
(b) taxes taxable income at a higher rate if those conditions are not met.

8. Some activities are prohibited if a superannuation fund is to continue to enjoy the concessional taxation imposts. They include those listed above.

9. The apparent scheme and object of this system of taxation is:^[2] See s 3 of the Act and Raelene Vivian, Suing in her Capacity as the Deputy Commissioner of Taxation (Superannuation) v Fitzgeralds 2007 ATC 5105 ; [2007] FCA 1602 at [41]-[42] per Logan J.

(a) to encourage and provide for prudent management of regulated superannuation funds;
(b) to encourage members of the community to provide for their retirement by taxing funds managed appropriately on a concessional basis; and
(c) to ensure that superannuation assets are available to support fund members in their retirement (or other times when access to

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those assets is otherwise permitted) rather than being used for unauthorised purposes.

The Commissioner's contentions

10. The Commissioner contends that the requirements listed at paragraph 6 above have been breached, that the Fund has not satisfied s 42A(5)(a), that the s 40 notice was properly issued and that this is not a case where the s42A(5)(b) discretion should be exercised because the breaches of the requirements are serious.

The applicant's contentions

11. The Applicant contends that:

(a) the assets of the Fund were safely returned;
(b) another fund which invested all of its assets in loans to Alnaz which on-lent this money to the members of that fund was not issued a s 40 notice;
(c) the taxation burden caused by loss of complying status is significant;
(d) the Commissioner issued a s 40 notice for the 2005 year and on review revoked it;
(e) an explanation for moving money through Mr Ali's personal account, i.e. to facilitate ease of banking transfers, has been given; and
(f) it is only human to make an error just as, it is alleged, the Commissioner's staff did when they issued the s 40 notice for the 2005 year which was revoked on review; and
(g) the Commissioner should have exercised the s 42A(5)(b) discretion.

Facts

12. It is necessary to consider the facts in more detail to determine which, if any, of the competing contentions are sound.

13. Mr Ali was a registered tax agent and was the tax agent for the Fund.

14. During the 2005 to 2006 financial years the Fund had two Westpac bank accounts:

(a) a business account held in the names of the Trustees of the Fund; and
(b) a business Max-i Direct account also held in the names of the Trustees of the Fund.

15. Upon the establishment of the Fund, Mr Ali arranged for the rollover of its members' existing superannuation benefits into the Fund's business account as follows:

Member	Date of Rollover	Amount
Mr Ali	12 May 2005	$10,250.73
Mrs Khan	15 May 2006	$14,241.54

16. On 29 June 2006 an employer contribution of $2,194.92 for Mrs Khan was deposited into the Fund's business account.

17. The Fund received further employer contributions of $900.90 for the 2006 income year and $5361.70 in the 2007 income year for Mr Ali from Mr Ali's accountancy practice company. These funds were paid into the Fund's business account.

18. Between 2005 and 2008 the Fund's income tax and regulatory returns prepared by Mr Ali reported 100 per cent of the assets of the Fund as follows:.

Financial Year	Amount	Label on Tax Return
2005	$10,077	Loans
2006	$25,278	Loans
2007	$32,617	Loans
2008	$45,309.83	Loans

19. For each of the 2006, 2007 and 2008 income years:

(a) the Fund's auditor reported that the Trustees had complied with all relevant requirements of the Act and that no Auditor Contravention Reports had been lodged;
(b) the Trustees submitted a statement to the Fund's auditor acknowledging true and fair representation of the Fund's financial reports for the relevant year; and
(c) the Trustees signed a memorandum of resolutions of the Trustees of the Fund adopting the audit report, income tax return and trustees' statement.

20. Alnaz was incorporated on 7 November 2003. From 31 January 2006 until 15 March 2007 and from 21 August 2008 onwards Mr Ali

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was its sole director. From 4 February 2008 to 21 August 2008 Mr Anilesh Sharma was a co-director of Alnaz. Notwithstanding Mr Sharma's appointment as a director and notwithstanding that Mr Ali was not continuously a director, throughout the 2006 to 2008 financial years Mr Ali controlled and directed Alnaz. Mr Sharma became a director of Alnaz to create an appearance of independence from Mr Ali. He did not have any input into managing Alnaz.

21. Under Mr Ali's control and stewardship, Alnaz's object was to borrow money from regulated superannuation funds and make loans to parties connected with those superannuation funds.

22. Throughout out the 2006 to 2008 financial years Alnaz operated a Westpac Business Cheque Account.

23. The following withdrawals of funds were made from the Fund's business account:

Date	Amount
2 June 2005	$10,000
18 May 2006	$14,000
29 Sept 2006	$1,800

and were deposited into Mr Ali's personal bank account.

24. On 23 May 2006 $14,000 was withdrawn from Mr Ali's personal bank account and was deposited into the Alnaz bank account. On 23 May and 24 May 2006, respectively, $9,500 and $4,500 were withdrawn from the Alnaz bank account.

25. A loan account schedule provided for Mrs Khan (Mr Ali's daughter) disclosed that on 23 May 2006, she received a loan of $14,000 from the Fund.

26. A subsequent Deed of acknowledgement of debt dated 18 August 2008 between Alnaz (as Lender) and Mrs Khan (as Borrower) states that Alnaz lent $14,000 to Mrs Khan on 23 May 2006 at an interest rate of 10 per cent, with monthly repayments of $300 commencing 1 June 2006 and ending 23 May 2011. This loan represented 55.38 per cent of total fund assets in the 2006 income year. Notwithstanding these terms, Mrs Khan has made no repayments to Alnaz and no action has been taken by Alnaz and/or the Fund to recover the loan from Mrs Khan. Despite the fact that Mrs Khan had not made any repayments, Alnaz repaid the $14,000 to the Fund in October 2008.

27. Further payments of Fund moneys were made to Alnaz as follows:

Date	Amount
2 June 2005	$10,000
12 July 2006	$1,500
13 July 2006	$1,000
29 Sept 2006	$1,800
24 July 2007	$4,100
9 Oct 2007	$1,500
9 Oct 2007	$1,500
10 Oct 2007	$1,500

When aggregated with the $14,000 ultimately loaned to Mrs Khan, these funds represent almost 100 per cent of total Fund assets in the 2005, 2006 and 2007 income years.

28. Minutes of trustee meetings of the Fund, signed by Mr Ali as Chairman and Trustee, disclose trustee resolutions to make loans to Alnaz as follows:

Date of resolution	Loan amount
1 June 2005	$10,000
15 May 2006	$14,000
10 July 2006	$2,500
28 September 2006	$1,800
18 July 2007	$4,100
7 October 2007	$4,500

29. With the exception of the loan to Mrs Khan (which was documented more than two years after it was made), and the records of the resolutions to make the loans, there were no written loan agreements for the loans to Alnaz and security was not provided for them.

30. On 21 August 2008 Mr Ali and Mr Sharma attended a meeting with the Commissioner's staff in connection with a review/enquiry of Alnaz's business operations.

31. On 7 October 2008 and 15 October 2008 respectively, Alnaz made payments of $21,250.00 and $25,340.58 to the Fund.

32.

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On 28 October 2008 a rollover of superannuation benefits for Mrs Ali of $22,270.83 was deposited into the Fund business account.

33. On 22 December 2008 the Fund made a term deposit of $70,000 with Westpac Bank.

34. On 2 January 2009, the Fund lodged member contribution details for the 2008 financial year, setting out members' account balances as:

Member	Balance
Mr Ali	$22,617.02
Mrs Ali	$1,155.15
Mrs Khan	$19,195.77

35. On 12 May 2009 Mr Ali and Mrs Khan attended an audit interview with the Commissioner. They provided a loan schedule document for the loans to Alnaz to the Commissioner showing repayments in October 2008. During the course of the audit interview Mr Ali and Mrs Khan provided information that, amongst other matters:

(a) the Fund had invested all its assets with Alnaz;
(b) because of Mr Ali's relationship with Alnaz, loan agreement documents were not considered necessary and no security was sought for the loans;
(c) all Alnaz loans had now been repaid and the funds invested in a term deposit with Westpac Bank;
(d) the loan to Mrs Khan was for 5 years and was used by Mrs Khan to pay her university fees. At the time the loan was made Mrs Khan was unable to obtain a bank loan and would have had to arrange finance at a higher interest rate than she obtained from Alnaz; and
(e) no repayments had been made of the loan to Mrs Khan.

36. By letter dated 15 May 2009, Mr Ali advised that:

(a) the withdrawal on 18 May 2006 of $14,000 had been deposited into Mr Ali's personal bank account and later withdrawn and deposited into the Alnaz account because the Fund did not have a cheque book facility;
(b) the withdrawal on 29 September 2006 of $1,800 was transferred to Mr Ali's personal bank account and was then transferred to Mr Ali's accountancy practice company on 29 September 2006 ($1,500) and 2 October 2006 ($300). The amounts were treated as loans from Alnaz to the company. Loan account schedules were provided which showed the transactions; and
(c) the withdrawal of $10,000 on 2 June 2005 was a loan from Alnaz to a third party borrower, Sandgrove Specialised Securities Ltd, and was paid directly to the latter. Loan account schedules were provided. No loan agreement documents or bank statements evidencing this transaction were provided.

37. On 4 June 2009 the Commissioner interviewed the approved auditor of the Fund, and was advised that:

(a) he had noticed the withdrawals from and deposits to Mr Ali's personal account and had questioned Mr Ali, who explained that this was due to the Fund not having a cheque facility;
(b) Mr Ali confirmed that the loans to Alnaz were consistent with the Trustees' intentions and that no contraventions of the Act had occurred.

38. By letter dated 26 October 2009, Mr Ali advised the Commissioner that:

(a) loans to Alnaz were not made to a related entity because he was not a director of Alnaz continuously throughout the relevant period;
(b) alternatively, loans made when Mr Ali was a director of Alnaz were made erroneously;
(c) as soon as Mr Ali realised that Alnaz was a related entity, the funds were repaid to the Fund and deposited in a term deposit; and
(d) in making loans to Alnaz it was not the Trustees' intention to provide financial assistance to members.

39. On 18 December 2009 the Respondent issued a notice under s 40 of the Act that the Fund was not a complying superannuation fund for the 2005 year of income on the grounds that:

ATC 4578
(a) the Trustees of the Fund had contravened s 65 and the in-house asset provisions in Part 8 of the Act; and
(b) the Fund had not passed the test in s 42A(5) of the Act.

40. By written notice dated 23 December 2009 pursuant to s 344(2) of the Act, the Trustees sought review of the Respondent's decision to issue the 2005 Non-Compliance Notice.

41. By written notice dated 25 February 2010, the Respondent revoked his decision to issue the 2005 Non-Compliance Notice.

42. On 13 April 2010, the Commissioner advised the Trustees of the Fund that he intended to issue a notice of non-compliance to the Fund pursuant to s 40 of the Act for the 2006 financial year.

43. On 28 June 2010 the Commissioner issued the s 40 notice referred to in paragraphs 2 and 42 above that has led to the present review.

44. On 6 and 7 October 2010, the Respondent issued notices of amended assessment of income tax liability for the years ended 30 June 2006, 2007, 2008, and 2009.

45. The terms of the deed creating the Fund:

(a) prohibited the Trustees from lending money belonging to the Fund or giving other financial assistance from the resources of the Fund to a member, except as permitted by the Act;^[3] Clause 19. and
(b) contained trustees' covenants to:
- (i) act honestly in all matters concerning the Fund;
- (ii) exercise due care, skill and diligence in all matters affecting the Fund;
- (iii) ensure that they performed and exercised their duties and powers in the best interests of the members of the Fund and any other persons who may have a beneficial interest in the Fund;
- (iv) keep the money and other assets of the Fund separate from those of the Trustees or of any employer-sponsor or any associate of any employer-sponsor; and
- (v) not enter into any contract or do anything else that would prevent or hinder the proper performance or exercise of the Trustees' functions and powers.

46. The Fund's Trustees were also subject to any general law duties as trustees not excluded or modified by the Act and/or the Fund Deed.^[4] See s 350 of the Act

Analysis of facts

47. On any view of the foregoing facts, the Fund breached numerous regulatory provisions and was properly the recipient of the s 40 notice. The fact that such a notice was given and withdrawn for the 2005 financial year is not to the point.

48. Alnaz was a related party of the Fund. A related party of a fund includes all members of the fund and their associates.^[5] See s 10(1) of the Act An associate of a member includes any company a member (or the members together) controls or influences.^[6] See s 70B of the Act.

49. For purposes of s 70B of the Act, a company is sufficiently influenced by a member if it, or a majority of its directors is accustomed or under an obligation (whether formal or informal), or might reasonably be expected, to act in accordance with the directions, instructions or wishes of the member.^[7] See s 70E of the Act.

50. Accordingly, loans to Alnaz were loans to a related party. To the extent that the loans were part of back-to-back arrangements to facilitate loans to other related parties or members, these loans can be regarded as part of an arrangement whereby financial assistance is provided to the end recipients of the money.

51. The s 62(1) sole purpose test prohibits trustees from maintaining a self-managed superannuation fund for purposes other than the provision of specified benefits and ancillary purposes. Loans to related parties are not permitted purposes.

52. In the present circumstances the Trustees contravened the s 62 sole purpose test because:

(a) the loans to Alnaz amounted to effectively 100 per cent of the Fund's assets;
(b) the loans to Alnaz were made to a related party;
(c) at least some, if not all, of the loans to Alnaz were not made on an arms-length, commercial basis and were unsecured. The back-to-back loans to Mrs Khan were made on terms that she could not borrow from independent parties;

ATC 4579
(d) the loan to Mrs Khan, made using money lent to Alnaz, was an arrangement constituting financial assistance to a member of the Fund;
(e) the Fund assets were mixed with the private assets of Mr Ali; and
(f) the above matters constituted contraventions of the Trustees' covenants in s 52 of the Act and in the Fund deed.

53. Against this backdrop, a conclusion that the Fund, including its assets, was maintained solely for permitted purposes cannot be sustained.

54. Section 65(1) of the Act prohibits lending fund moneys and giving any other financial assistance using the resources of the fund to a member of the fund. A loan for these purposes includes provision of credit or any other form of financial accommodation, whether enforceable, or intended to be enforceable, by legal proceedings.^[8] See s 10 of the Act. Financial assistance is not defined for present purposes and the term therefore takes its ordinary meaning as affected by the context in which it appears. The term appears in the Act as part of a set of provisions whose object is to protect and preserve members' superannuation savings. Arrangements that are designed to confer the benefit of use of superannuation fund moneys by members, whether directly or indirectly, fall within this concept of financial assistance.

55. In the present circumstances, the Trustees contravened the s 65 prohibition against providing financial assistance to members because money was withdrawn from the Ali business account, deposited into Mr Ali's personal account and then immediately on-loaned to Mrs Khan.

56. Against this backdrop a conclusion that the prohibited loans were not made cannot be sustained.

57. Sections 82 and 83 of the Act limit permissible in-house assets to 5 per cent of the value of a fund's assets. Acquisitions beyond that level are not permitted and plans need to be made to restore any excesses over the permitted 5 per cent ceiling. An in-house asset includes a loan to, or an investment in, a related party of the fund.^[9] See s 71 of the Act. Making a loan is an acquisition of an in-house asset.^[10] See s 83(4) of the Act.

58. In the present circumstances, the Trustees contravened the Part 8 in-house assets rules because:

(a) during the 2006 financial year, the $10,000 and $14,000 loans to Alnaz represented 100 per cent of the assets of the Fund and exceeded the 5 per cent ratio permitted by s 82 of the Act; and
(b) the Trustees did not have a plan to reduce the in-house assets to permissible levels.

59. Against this backdrop a conclusion that the in house assets were within permissible levels cannot be sustained.

60. Non-arm's length dealings with fund assets are prohibited by s 109(1) of the Act.

61. In the present circumstances, the Trustees contravened s 109(1) of the Act because:

(a) money was withdrawn from the Fund's business account, deposited into Mr Ali's personal account and then immediately on-loaned to Mrs Khan;
(b) the arrangements were effected on a non-arms length basis because Mrs Khan could not otherwise obtain finance on similarly favourable terms.

62. Against this backdrop a conclusion that the loans were arm's length loans cannot be sustained.

63. Section 42A(5)(b) contains a relieving discretion allowing one or more breaches of regulatory provisions to be ignored where the Commissioner, and the Tribunal on review, after considering:

(a) the taxation consequences that would arise if the entity were to be treated as a non-complying superannuation fund for the purposes of the Income Tax Assessment Act 1997 (C'th) in relation to the year of income concerned;
(b) the seriousness of the contravention or contraventions; and
(c) all other relevant circumstances;

thinks that a notice should nevertheless be given that the fund in question is a complying superannuation fund in relation to the year of income concerned.

64.

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Being a relieving discretion, there are two principles that need to be observed:

(a) first, discretions that are remedial or beneficial in nature ought be given a construction that allows the fullest relief which is open on a fair reading of their terms;^[11] See McAusland v Deputy Federal Commissioner of Taxation ; Antlers Pty Ltd (1993) 47 FCR 369 at 374 per Gummow J and the reference to Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 at 44 there cited. and
(b) second, in exercising a discretion it is necessary to have regard to whether its exercise in a particular instance will achieve or frustrate the ends, objects or purposes of the Act.^[12] See Secretary, Department of Social Security v (D A) Smith (1991) 23 ALD 277 at 280 per von Doussa J and the reference there to Re Ivovic v Director-General of Social Services (1981) 3 ALN No 61 at n 96-97.

65. In determining whether an exercise of a discretion would frustrate the objects of an act, it is necessary to understand the objects and underlying policy of the relevant act. Those objects and underlying policy are set out above.

66. It is against that backdrop that the Tribunal needs to consider the issue of whether the relieving discretion in s 42A(5)(b) should be exercised in the applicant's circumstances.

67. The taxation consequences flowing from the treatment of the Fund as a non-complying superannuation fund are increased income tax assessments. However, that of itself is not determinative as it is the consequence contemplated by the legislature for non-complying funds. What is required is a balancing of the additional tax liabilities against the seriousness of the breaches and other matters.

68. Here the breaches are very serious. The breaches:

(a) exposed almost all of the Fund's assets to risk of a type not permitted;
(b) involved multiple contraventions over an extended period of time;
(c) involved implementing arrangements designed, at least in part, to disguise true relationships;
(d) breached the Trustees' covenants and in particular, the Trustees' obligation to exercise the care, skill and diligence of an ordinary prudent person in dealing with trust property;
(e) in the case of the loan to Mrs Khan, involved arrangements designed to circumvent or undermine s 65 of the Act;
(f) were implemented by an accountant who at least ought to have known that such arrangements constituted contraventions of the Act; and
(g) were only corrected after the Commissioner's activities commenced.

69. The Act plays an important role in the wider system of encouraging the community to provide for their own retirement and ease the strain on public welfare resources. In the present matter, the breaches of the standards required of superannuation funds to be concessionally taxed are particularly serious. The present circumstances are not those in which a discretion ought be exercised consistently with the principles governing exercise of discretionary powers. To do so would frustrate the wider objects of the Act by relieving those responsible for superannuation funds of tax imposts where all of the assets of a superannuation fund are managed in a contrary manner to various control measures under the Act. Exercising a discretion in these circumstances is not consistent with the objects of the Act.

70. The fact that moneys were not lost and the Fund has been restored after the Commissioner's activities started, that a notice for the 2005 year was withdrawn, that others who have done the same were not penalised and that an explanation has been offered for the passing of money through Mr Ali's personal account do not counterbalance the seriousness of the breaches to warrant exercise of a relieving discretion.^[13] See JNVQ v Commissioner of Taxation [2009] AATA 522 ; Brendan Pty Ltd atf the Kelso Superannuation Fund v Commissioner of Taxation [2011] AATA 3 . The passing of money through Mr Ali's personal account is merely one of number of breaches. Money lent by other superannuation funds to Alnaz and then on-lent to members is not the same factual setting as that in which present trustees find themselves. One of the present trustees was the architect of the Alnaz structure and its activities. Other factual differences are possible and the material before the Tribunal does not permit any comparison to be made. The present breaches are more than mere error; they are breaches of requirements on a very serious scale. Whatever motivated the Commissioner to revoke the 2005 year, s 40 notice is not before the Tribunal and no comment on that circumstance can be made other than that the 2006 and later years stand on their own footing. It would be an unfortunate circumstance if an erroneous revocation of the

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2005 year, s 40 notice led the Applicant to a belief that the shortcomings in later years ought be excused.

Determination

71. For the reasons set out above, the s 40 notice was properly issued and the discretion afforded by s 42A(5)(b) is not to be exercised. The decision under review is affirmed.

Footnotes

^[1] See s 42A(5)(a) of the Act.
^[2] See s 3 of the Act and Raelene Vivian, Suing in her Capacity as the Deputy Commissioner of Taxation (Superannuation) v Fitzgeralds 2007 ATC 5105 ; [2007] FCA 1602 at [41]-[42] per Logan J.
^[3] Clause 19.
^[4] See s 350 of the Act
^[5] See s 10(1) of the Act
^[6] See s 70B of the Act.
^[7] See s 70E of the Act.
^[8] See s 10 of the Act.
^[9] See s 71 of the Act.
^[10] See s 83(4) of the Act.
^[11] See McAusland v Deputy Federal Commissioner of Taxation ; Antlers Pty Ltd (1993) 47 FCR 369 at 374 per Gummow J and the reference to Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 at 44 there cited.
^[12] See Secretary, Department of Social Security v (D A) Smith (1991) 23 ALD 277 at 280 per von Doussa J and the reference there to Re Ivovic v Director-General of Social Services (1981) 3 ALN No 61 at n 96-97.
^[13] See JNVQ v Commissioner of Taxation [2009] AATA 522 ; Brendan Pty Ltd atf the Kelso Superannuation Fund v Commissioner of Taxation [2011] AATA 3 .

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