BRAZIL v FC of T

Members:
RW Dunne SM

Tribunal:
Administrative Appeals Tribunal, Adelaide

MEDIA NEUTRAL CITATION: [2012] AATA 192

Decision date: 4 April 2012

Dunne (Senior Member)

Introduction

1. On 23 March 2007, the respondent received an "Application for ABN and TFN for The Western Eagle Superannuation Fund (NSW)". The application was expressed to be from and related to "The Trustee for the Trustees for Western Eagle Super Fund (NSW)" ("Fund"). The respondent registered the Fund as a regulated superannuation fund on 27 March 2007 for the purposes of the Superannuation Industry (Supervision) Act 1993("SIS Act").

2. The applicant in this case is Mr Yul Brazil. By application received on 4 April 2011, the filing of which was extended until 8 April 2011, Mr Brazil sought review of the objection decision made by the respondent in relation to his amended assessment for the year ended 30 June 2008. In raising the amended assessment, the respondent included in Mr Brazil's assessable income for the 2007/2008 tax year the sum of $18,000 which had been withdrawn from the AON Master Trust and deposited in to the Fund's bank account on 10 December 2007.

3. At the hearing, Mr Brazil represented himself and the respondent was represented by Mr S Cole (of counsel). I admitted in to evidence the T documents (Exhibit R1), the supplementary T documents (Exhibit R2) and the further supplementary T documents (Exhibit R3) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:

Issues for the Tribunal

4. The following are the issues for the Tribunal's consideration:

Legislation

5. Division 304 of the ITAA 1997 deals with superannuation benefits received in breach of legislative requirements. Section 304-10(1) applies when a person receives a superannuation benefit from a complying superannuation fund or from a fund that was previously a complying superannuation fund and the benefit was received otherwise than in accordance with the payment standards prescribed in s 31(1) of the SIS Act. Section 304-10(1) reads:

" 304-10 Superannuation benefits in breach of legislative requirements etc .

  • (1) Include in your assessable income the amount of a *superannuation benefit if:
    • (a) any of the following applies:
      • (i) you received the benefit from a *complying superannuation fund or from a *superannuation fund that was previously a complying superannuation fund;
      • (ii) the benefit is attributable to the assets of a complying superannuation fund or from a superannuation fund that was previously a complying superannuation fund; and
    • (b) any of the following applies:
      • (i) the fund was not (when you received the benefit) maintained as required by section 62 of the Superannuation Industry (Supervision) Act 1993;
      • (ii) you received the benefit otherwise than in accordance with payment standards prescribed under subsection 31(1) of the Superannuation Industry (Supervision) Act 1993."

6. Thus, the main elements of s 304-10(1) are that the individual receives a superannuation benefit from a complying, or previously complying, superannuation fund and the superannuation fund:

7. Under s 304-10(4), a person does not have to include a s 304-10(1) superannuation benefit in certain circumstances. Section 304-10(4) reads:

  • "(4) However, you do not have to include the amount in your assessable income to the extent that the Commissioner is satisfied that it is unreasonable that it be included having regard to:
    • (a) for subsection (1) or (2) - the nature of the fund; and
    • (b) any other matters that the Commissioner considers relevant."

8. Section 306-10 of the ITAA 1997 deals with what is a "roll-over superannuation benefit". Such a benefit can be paid to or from a complying superannuation fund. Section 306-10 reads:

" 306-10 Roll-over superannuation benefit

  • A *superannuation benefit is a roll-over superannuation benefit if:
    • (a) the benefit is a *superannuation lump sum and a *superannuation member benefit; and
    • (b) the benefit is not a superannuation benefit of a kind specified in the regulations; and
    • (c) the benefit satisfies any of the following conditions:
      • (i) it is paid from a *complying superannuation plan;
      • (ii) it is an *unclaimed money payment;
      • (iii) it arises from the commutation of a *superannuation annuity; and
    • (d) the benefit satisfies any of the following conditions:
      • (i) it is paid to a complying superannuation plan;
      • (ii) it is paid to an entity to purchase a superannuation annuity from the entity.

    Note 1: A superannuation benefit may be paid from one superannuation plan of a superannuation provider to another superannuation plan of the same provider.

    Note 2: For the treatment of amounts transferred within a superannuation plan, see subsection 307-5(8)."

9. The expression "superannuation benefit" is defined in Item 1, Column 2 in the table in s 307-5(1) of the ITAA 1997 as "A payment to you from a superannuation fund because you are a fund member." Section 307-15(2)(b) provides that a superannuation benefit is treated as been made to, or received by, an individual if it is made for the individual's benefit or to another person or to an entity at the individual's direction or request.

10. Under Reg 6.17 of the SIS Regulations, a member's benefit in a fund may be paid:

11. Under Reg 6.18 of the SIS Regulations, a member's preserved benefits may only be cashed on or after the satisfaction by the member of a "condition of release". The conditions of release are set out in Schedule 1 of the SIS Regulations and include:

12. The expressions "rolled over" and "transferred" are defined in a Reg 5.01(1) and apply to Part 6 of the SIS Regulations by virtue of Reg 6.01(1). The definitions read:

" rolled over means paid as a superannuation lump sum (other than by way of being transferred) within the superannuation system.

superannuation system means the system comprising: (a) regulated superannuation funds; and

…

transferred , in relation to a member's benefits paid out of, or received by, a regulated superannuation fund or approved deposit fund, means paid to, or received from:

  • (a) another regulated superannuation fund or approved deposit fund; or
  • (b) …
  • (c) …,"

otherwise than upon the satisfaction by the member of a condition of release (within the meaning of Part 6) for all those benefits.

13. The term "regulated superannuation fund" is defined by reference to s 19 of the SIS Act. Section 19 defines a "regulated superannuation fund" as a superannuation fund which has a trustee, where the trustee or trustee(s) must have given a notice to the specified body electing the SIS Act is to apply in relation to the fund. Section 10(1) of the SIS Act defines superannuation fund as:

  • "(a) a fund that;
    • (i) is an indefinitely continuing fund; and
    • (ii) is a provident, benefit, superannuation or retirement fund; or
  • (b) is a public sector superannuation scheme."

14. In Schedule 1, Division 284 of the Taxation Administration Act 1953 ("TA Act") a penalty may apply if a taxpayer (or tax agent) makes a statement to the respondent about a taxation law that results in a "shortfall amount" of tax to the taxpayer. The provisions, which include a discretion to remit the penalty, relevantly read:

" 284-75 Liability to penalty

  • (1) You are liable to an administrative penalty if:
    • (a) you or your agent makes a statement to the Commissioner or to an entity that is exercising powers or performing functions under a *taxation law; and
    • (b) the statement is false or misleading in a material particular, whether because of things in it or omitted from it; and
    • (c) you have a * shortfall amount as a result of the statement.

Note: Subsection 2(2) specifies laws that are not taxation laws for the purposes of this Subdivision.

…

284-80 Shortfall amounts

  • (1) You have a shortfall amount if an item in this table applies to you. That amount is the amount by which the relevant liability, or the payment or credit, is less than or more than it would otherwise have been.

Shortfall amounts
Item You have a shortfall amount in this situation :
1 A *tax-related liability of yours for an accounting period, or for a * taxable importation, worked out on the basis of the statement is less than it would be if the statement were not false or misleading

…

284-90 Base penalty amount

  • (1) The base penalty amount under this Subdivision is worked out using this table:

Base penalty amount
Item In this situation : The base penalty amount is :
3 Your *shortfall amount or part of it resulted from a failure by you or your agent to take reasonable care to comply with a *taxation law 25% of your *shortfall amount or part

…

298-20 Remission of penalty

  • (1) The Commissioner may remit all or a part of the penalty.
  • (2) If the Commissioner decides:
    • (a) not to remit the penalty; or
    • (b) to remit only part of the penalty;
    the Commissioner must give written notice of the decision and the reasons for the decision to the entity.

Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons."

Background

15. The background in this case involves circumstances which are unfortunate for the applicant. The material facts have been extracted from the respondent's statement of facts, issues and contentions and are not in dispute. Following its registration as a regulated self-managed superannuation fund, the respondent commenced an audit of the Fund on or around early October 2008. Audit letters were sent to the trustees of the Fund requesting a copy of the trust deed establishing the Fund and other relevant documents. On 9 October 2008, the respondent sent a notice under s 264 of the Income Tax Assessment Act 1936 ("ITAA 1936") to the Fund's bank requiring production of bank statements for the Fund. In response to the notice, the bank provided a statement for the Fund which showed an amount of $18,000 deposited in to its bank account on 10 December 2007 by the AON Master Trust. The AON Master Trust is an Australian Prudential Regulation Authority (APRA) regulated fund and was a complying fund at all relevant times. Of the amount of $18,000 deposited by the AON Master Trust, an amount of $12,225 was withdrawn from the Fund's bank account and paid to the applicant on 13 December 2007.

16. During the audit of the Fund, the respondent was provided with the following relevant documents by the AON Master Trust which related to the applicant:

17. In a taped record of interview with officers of the respondent, the trustees of Fund (Mr Geovert Ramos and Mr Wilfredo Santos) made the following statements in relation to the Fund:

18. It appears that no contributions were made to the Fund and no investments were made. The Fund has not lodged any income tax or regulatory returns since its establishment. It was never issued with a notice of compliance by the respondent, but was issued with a notice of non-compliance on 6 September 2010 for breaches of ss 62, 36A, 35D and 34 of the SIS Act for the year ended 30 June 2007.

19. Mr Brazil was born on 31 October 1975 and was 32 years of age at the time he rolled his superannuation benefits into the Fund. His 2007/2008 taxation return was lodged on 29 July 2008. He did not include the preserved superannuation benefits of $18,000 as income in his return. In response to an audit letter from the respondent in relation to the non-disclosure of the $18,000 superannuation benefits, Mr Brazil made the following statements in a telephone call to an officer of the respondent:

20. The respondent issued a completion of audit letter to the applicant on 31 August 2010 advising him that his 2007/2008 taxation return would be amended to include the $18,000 superannuation benefits as assessable income since he had accessed the benefits without meeting a condition of release. The return was amended and a 2007/2008 amended assessment was issued on 15 September 2010. An administrative penalty was imposed and a shortfall penalty notice was issued on 22 September 2010.

Evidence of Mr Brazil and Mr Duran

21. It was Mr Brazil's evidence that he was (or had been) a member of the Electrolux Home Products Superannuation Plan. He had met "friends" who had suggested that he should apply to have his superannuation benefits in the Plan paid to him. He was struggling to pay his debts and Electrolux was laying off staff and closing its sites in South Australia. His friends told him that he could roll over his superannuation to Western Eagle, as long as tax was paid and if he was in "financial hardship". They had done the same thing themselves. He was surprised when he was subsequently advised by the respondent that no tax had been paid on the superannuation funds he had withdrawn. He had not withdrawn all of his superannuation, but enough to deal with his financial problems. The remainder would be left to hold for his retirement.

22. His friends had suggested that he contact Mr Ramon Cruz, who was with Western Eagle. Mr Cruz advised him to fill out and sign part of the Electrolux superannuation benefit payment request form (including the amount of $18,000 to be withdrawn) and to send it to him. Western Eagle would fill out the rest of the form. Of the amount withdrawn, he had received about $11,000 and the rest had been paid in tax and commission.

23. In cross-examination by Mr Cole, Mr Brazil acknowledged that the superannuation benefits he had received represented employer contributions that had been made by Electrolux. He said he understood that, if he had financial hardship and tax was paid, he could be paid the benefits from the Fund. He had been told by his friends that, if he could show that he had financial hardship, he could get the superannuation funds. He said he could not get the funds from the AON Master Trust, but could only withdraw them where there was a roll over. He did not think about why he could get the funds from Western Eagle and not the AON Master Trust. He simply said he "needed the money". He had not asked Western Eagle for any documentation about the tax he had paid on the amount withdrawn or on the commission he had paid. He only filled in the request form, as others had done. When questioned further by Mr Cole, he acknowledged that he been employed by Electrolux for the whole of the 2007/2008 tax year. He had lodged his 2007/2008 taxation return through a tax agent. He did not tell the agent about the superannuation funds he had withdrawn because tax had been paid on the funds. He did not believe the funds had to be included in his 2007/2008 taxation return.

24. When I questioned him, Mr Duran said he had assisted Mr Brazil in preparing his statement of facts and issues. When asked about the reference in the statement to the expression "early release of his superannuation fund" when referring to Mr Brazil, he said he had obtained the expression from the internet. In response to questioning by Mr Cole, he said he had also transferred superannuation funds from Western Eagle himself, but the circumstances were different. He had not discussed his transfer of funds with Mr Brazil.

Consideration

Should the amount of $18,000 withdrawn from the AON Master Trust be included in the applicant's assessable income for the 2007/2008 tax year pursuant to s 304-10(1) of the ITAA 1997?

25. This case involves the withdrawal by the applicant of superannuation benefits through a fraudulent enterprise by others, which involved the Fund. The applicant was not directly involved in the enterprise, but the payment of the benefits to him was clearly in breach of the SIS Act and the SIS Regulations. On the evidence, the applicant had arranged for the transfer of $18,000 of his superannuation benefits from the AON Master Trust into the Fund. He was only 32 years of age at the time of the transfer.

26. The AON Master Trust is an APRA regulated fund and, on the material available, it has been a complying superannuation fund at all relevant times. Of the amount of $18,000 deposited by the AON Master Trust into the Fund, an amount of $12,225 was paid by cheque drawn on the Fund's bank account to the applicant in the 2007/2008 tax year. It was the respondent's submission that the Fund was not, in fact and law, a "superannuation fund". I agree. On the evidence, I am satisfied that it was not an indefinitely continuing fund and a provident, benefit, superannuation or retirement fund, or a public sector superannuation scheme (as defined in s 10(1) of the SIS Act). Although the Fund may have satisfied the requirements of s 19 of the SIS Act which defines a "regulated superannuation fund", the Fund was not a "superannuation fund", as defined. As Mr Cole suggested, it was a vehicle for opening bank accounts to allow the deposit of superannuation benefits into the accounts and for the payment out of those superannuation benefits to the applicant, without meeting a "condition of release", under Reg 6.18(1) of the SIS Regulations. I say more about this later.

27. The bank records of the Fund simply showed monies in and monies out. Apparently, there were no contributions, as such, made to the Fund and no investments were made by it. There was no trust deed and no rules of membership and eligibility. The Fund had not lodged any income tax or regulatory returns and was never issued with a notice of compliance by the respondent. However, it was issued with a notice of non-compliance on 6 September 2010 for breaches of s 62, former s 36A, s 35D and s 34 of the SIS Act for the year ended 30 June 2007. If the Fund operated as a complying superannuation fund until the notice of non-compliance was issued, s45(3) of the SIS Act, adopting the definition of "complying superannuation fund" in s 995-1 of the ITAA 1997, would apply to revoke or set aside any notice of compliance which may have operated in the intervening period.

28. Numerous cases have dealt with the meaning of "superannuation fund". In
Walstern v Commissioner of Taxation [2003] FCA 1428, Hill J in the Federal Court made the following observation:

…

  • "[ 49 ] There is an argument, although it was not sought to be made by senior counsel for the Commissioner, that there could be no 'fund' in the year of income unless at the time the contribution was made there was actually money or other property held in trust or otherwise subject to legal requirements of a kind which would make the fund a provident benefit superannuation or retirement fund. In
    Scott v Federal Commissioner of Taxation (No 2) (1966) 177 CLR 514 Windeyer J at 351, expressed the view (as what his Honour there referred to as a 'general description' and not a 'definition') that 'fund' in the context of 'superannuation fund' ordinarily meant 'money (or investments) set aside and invested, the surplus income therefrom being capitalized.' For present purposes, the point is the need for 'money' or 'other property' to constitute a fund.
  • [ 50 ] A similar view was taken by Owen J in
    Mahoney v Federal Commissioner of Taxation (1965) 13 ATD 519 where has Honour said at 525:

    'In order to succeed the appellants must in the first place show that a fund was established. That, it seems to me, they have done by producing the deed of trust and proving that L500 was paid by the Company to the trustees to be dealt with by them in accordance with the trusts declared in the deed.'

  • …
  • [ 54 ] The Commissioner's submission depends upon what was said by Windeyer J in
    Scott v Federal Commissioner of Taxation (No 2) (1966) 14 ATD 333 at 352. There, his Honour said:

    'There is no definition in the [Income Tax Assessment] Act of a superannuation fund. The meaning of the term [superannuation fund] must therefore depend upon ordinary usage, the attributes of a thing thus denominated being those which things ordinarily so described have … the connotation of the phrase in the Act must be determined by one's general knowledge of the extent of the denotation of the phrase in common parlance … I have come to the conclusion that there is no single attribute of a superannuation fund established for the benefit of employees except that it must be a fund bona fide devoted as its sole purpose to providing for employees who are participants money benefits (or benefits having a monetary value) upon their reaching a prescribed age .'

  • [ 55 ] At the time Walstern made each of its contributions there was no reason to conclude that, assuming there was a fund, it could not properly be said to be a superannuation, provident benefit or retirement fund within the meaning of those words. The comments of Windeyer J must be seen against the facts of the case before his Honour, where a document which on its face could qualify as a deed which governed the terms of a superannuation fund was part of an elaborate façade. Indeed, his Honour held that the language of the trust deed was intended to be disregarded and activities were to be carried on not directed to the stated purposes in the deed. That is not the case here.
  • [ 56 ] A similar view as to the meaning of the words 'provident, benefit or superannuation fund' was expressed by Kitto J in
    Mahony v Commissioner of Taxation (1967-8) 41 ALJR 232 where his Honour said:

    'There was no definition in the Act of 'a provident, benefit or superannuation fun [sic] ', and the meaning of the several expressions must therefore be arrived at in light of ordinary usage and with only one piece of assistance to be gathered from the immediate context. Since a fund, if its income was to be exempt under the provision, was separately required to be one established for the benefit of employees, each of the three descriptive words 'provident', benefit' and 'superannuation' must be taken to have connoted a purpose narrower than the purpose of conferring benefits, in a completely general sense, upon employees. Precise definition may be difficult, and in any case is unnecessary for present purposes. All that need be recognized is that just as 'provident' and 'superannuation' both referred to the provision of a particular kind of benefit' - in the one case a provision against contemplated contingencies, and in the other case a provision, to arise on an employee's retirement or death or other cessation of employment, of a subvention for him or his estate or persons towards whom he may have stood in some kind of relation commonly giving rise to a legal or moral responsibility - so 'benefit' must have meant a benefit, not in a general sense, but characterized by some specific future purpose . A funeral benefit is a familiar example.'" [emphasis added]

29. In my view and on the authorities, the Fund was not a "superannuation fund", or a "regulated superannuation fund" or a "complying superannuation fund". In these circumstances, there has not been a payment by the AON Master Trust to a "superannuation fund", namely, the Fund. The payment must be characterised in some other way. Under Reg 6.17(2) of the SIS Regulations, a member's benefits in a fund may be paid by being cashed in accordance with Division 6.3 or by being rolled over or transferred in accordance with Divisions 6.4, 6.5 or 6.7, or by being allotted under Division 6.7. In my view, the payment was not "rolled over" and was not "transferred" within the meanings in Reg 5.01(1) of the SIS Regulations.

30. Further, in relation to the payment by the AON Master Trust, if the Fund is not a "superannuation fund" and the payment is not "rolled over" and not "transferred", regard can be had to s 306-10 of the ITAA 1997 and the definition of "roll-over superannuation benefit". In my view, again as the Fund was not a "superannuation fund", Mr Brazil is not able to bring himself within the definition of a "roll-over superannuation benefit" within the meaning of s 306-10.

31. On the face of it, the payment by the AON Master Trust does not meet any of the compliance requirements. In this regard, s 31 of the SIS Act provides for payment standards to be prescribed for regulated superannuation funds. The standards are set out in a combination of Reg 6.18 and the conditions of release in Schedule 1 of the SIS Regulations. So, applying Reg 6.17, the applicant's superannuation benefits may only be paid to him by being cashed and, for it to be a cash payment, it must meet a condition of release. In analysing the conditions in Schedule 1 and on the evidence, the only one available to the applicant is in Item 105, "severe financial hardship". And this must be in circumstances where the payment application made is considered, on its merits, by the paying fund. Clearly, the payment by the AON Master Trust was not made on the basis of the applicant's severe financial hardship. It was a payment made by the AON Master Trust simply at the request of the applicant. According to Exhibit R5, he was seeking a roll over of $18,000 which was not, in fact and law, a "roll over", nor was it a "transfer". In these circumstances, it becomes a payment directed to another person by the application of s 307-15(1) and (2)(b) of the ITAA 1997. In other words, there was a payment made to the Fund, which is "another person", at the direction or request of the applicant, where the payment was not made to a superannuation fund in circumstances where it could have been a "roll over" or it could have been "transfer". It was no more than a payment being made to an agent and in these circumstances s 307-15(2)(b) has application. The payment is effectively one from the AON Master Trust, of which the applicant is a fund member, to the applicant himself.

32. It follows, in my view, that s 304-10(1) of the ITAA 1997 must apply. The amount of the applicant's superannuation benefit, which was paid to him as a member of the AON Master Trust, was paid to and received by him otherwise than in accordance with the payment standards prescribed under s 31 of the SIS Act, which are the standards in Reg 6.18 and Schedule 1 of the SIS Regulations. There is no evidence that the application to the AON Master Trust was paid on the basis of the applicant's financial hardship, or any other basis. The amount of $18,000 received by him during the 2007/2008 tax year is properly assessable income of the applicant under s 304-10(1).

33. I must consider the provisions of s 304-10(4) of the ITAA 1997. This subsection provides that the applicant is not required to include the amount of his superannuation benefits of $18,000 in his assessable income to the extent that the respondent is satisfied that it is unreasonable that it be included, having regard to:

34. Mr Cole submitted that there was no room for the discretion to be exercised in favour of the applicant. I agree with this submission. He also referred to a contrary apportionment argument that might apply in relation to the operation of s 304-10(4). I do not accept that such an argument could apply in the applicant's case. Mr Brazil suspected (or should have suspected) that the Fund was not a bone fide superannuation fund. He made no effort to find out information about the Fund and why he could receive his superannuation benefit from the Fund, when he could not receive it from the AON Master Trust. He did not worry or care about this. As he said in his evidence, he needed the money and he was prepared to do anything to get it. Others had done it that way and received the early release of their superannuation benefits and he was content to proceed in the same way. He believed that tax had been deducted from the payment and remitted to the respondent. However, he had no evidence of this and did not seek to obtain any documentation to show what had been withheld and remitted. As Mr Cole submitted further, the exercise of the discretion in the applicant's favour would mean that the tax-paying community would be footing the tax bill in circumstances where there was no documentation to show that any tax had been paid. I do not think it is appropriate to exercise the discretion in s 304-10(4) of the ITAA 1997 in the applicant's case.

Should the applicant be liable for an administrative penalty in respect of the 2007/2008 tax year pursuant to s 284-75(1) of Schedule 1 of the TA Act?

35. The administrative penalty regime is contained in Schedule 1 of Part 4-25 of the TA Act. Amongst other things, the regime provides for the imposition of penalties for failure to lodge taxation returns and other documents on time. In Mr Brazil's case, the 2007/2008 amended assessment has been issued because of his failure to include the amount of $18,000 preserved superannuation benefits received by him during the 2007/2008 tax year as assessable income in his taxation return for that year. In these circumstances, s 284-75(1) of the TA Act applies, a shortfall amount arises under Item 1 of the table in s 284-80(1) and a base penalty amount is determined under Item 3 of the table in s 285-90(1), which is 25% of the shortfall amount. In these circumstances, I am satisfied that the administrative penalty of 25% determined by the respondent is correct.

Should the administrative penalty be remitted, either in full or in part, pursuant to s 298-20(1) of the TA Act?

36. Having made the finding in paragraph 35, I note that, under s 298-20(1) of the TA Act, the Commissioner (and upon review, the Tribunal) may remit all or part of the penalty imposed. Should there be any remission of penalty? Upon reflection, I note that Mr Brazil was willing to be part of an arrangement, which turned out to be part of a fraudulent enterprise, to obtain early release of his superannuation benefits in circumstances not allowed under the superannuation law. He asked no questions about the Fund and its background or about the documentation relating to its establishment. When he received his $12,225 from the Fund, he asked for no documentation about the tax withheld or the commission paid. When he came to lodge his 2007/2008 taxation return, he made no disclosure to his tax agent or enquired whether any of the $18,000 was assessable. Given the circumstances of his case, which are regrettable, I do not believe any remission of the 25% penalty is warranted.

Decision

37. For the reasons set out above, the Tribunal affirms the objection decision under review.

 

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