Practice Statement Law Administration
PS LA 2006/17
Self-managed superannuation funds - disqualification of individuals to prohibit them from acting as a trustee of a self-managed superannuation fund-
This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
| Table of Contents | Paragraph |
|---|---|
| What this Practice Statement is about | |
| When an individual can be disqualified under section 126A | |
| Disqualification – general considerations | |
| Options other than disqualification that can be taken in relation to a contravention | |
| Our process | |
| Disqualifying under subsections 126A(1) or (2) – contraventions | |
| General considerations | |
| Assessing the future compliance risk | |
| Disqualifying under subsection 126A(3) – fit and proper person | |
| What to take into account when assessing an individual as fit and proper | |
| Review rights |
Relying on this Practice Statement
This Practice Statement is an internal instruction to ATO staff, published externally in the interest of open tax administration.
This Practice Statement outlines the circumstances in which you can consider disqualifying an individual and thereby prohibit them from acting as a trustee of a self–managed superannuation fund.
What this Practice Statement is about
1. An individual[1] may be disqualified from acting as a trustee of a self-managed super fund (SMSF) in 2 ways – through the operation of law[2] or by a decision of the Commissioner of Taxation under section 126A of the Superannuation Industry (Supervision) Act 1993 (SISA).
2. All further legislative references in this Practice Statement are to the SISA, unless otherwise indicated.
3. This Practice Statement sets out what you need to consider when making a decision under section 126A.
4. A person must not act as a trustee of an SMSF or a responsible officer of a corporate trustee when they know they are a disqualified person. By doing so, the person is committing an offence.[3]
5. Under section 120, an individual is a disqualified person by operation of law where they have been or are:
- •
- convicted of an offence involving dishonesty (subparagraph 120(1)(a)(i))
- •
- subject to a civil penalty order (subparagraph 120(1)(a)(ii))
- •
- an undischarged bankrupt (paragraph 120(1)(b))
- •
- disqualified by the Commissioner under section 126A (subparagraph 120(1)(c)(i)).
When an individual can be disqualified under section 126A
6. Under section 126A, an individual can be disqualified if:
- •
- they contravene the SISA or the Financial Sector (Collection of Data) Act 2001 and the nature, seriousness or number of the contravention or contraventions provide grounds for disqualification[4], or
- •
- the Commissioner is satisfied that the individual is otherwise not a fit and proper person.[5]
7. Subsection 126A(3) uses the phrase is 'otherwise' not a fit and proper person. The use of that word does not mean that subsections 126A(1) and (2) raise completely different issues. Whether there have been contraventions of the SISA will be one of the factors in deciding whether the person is not a fit and proper person.[6]
8. An individual can be disqualified under subsections 126A(1) and (2) for contraventions of the SISA that happened when the entity was a regulated super fund and meets the definitions under sections 10 and 19.
9. Even where a regulated super fund never existed, it is possible to disqualify an individual under the fit and proper provisions contained in subsection 126A(3).
10. If an individual is not presently acting or has never acted as a trustee of an SMSF, they may still be disqualified as a preventative measure because they present a future compliance risk. In these instances, the disqualification can only be under subsection 126A(3) – not being a fit and proper person.
11. Where there is sufficient evidence to identify contraventions which justify a disqualification under subsections 126A(1) or (2), and the evidence also provides grounds to disqualify under subsection 126A(3), the individual may be disqualified under both limbs.[7]
Disqualification – general considerations
12. When making a decision about disqualification, you should keep in mind the overarching principles of the:
- •
- ATO Charter
- •
- Compliance model
- •
- Good decision-making model (link available internally only).
13. Disqualification under section 126A is primarily aimed at protecting the integrity of the superannuation system. It should be applied where we are concerned that allowing the individual to remain in the position of trustee would present a future compliance risk.[8]
14. Where an individual removes themselves voluntarily from the position of trustee prior to the decision being made, disqualification may no longer be necessary. However, if the offer to remove themselves is not considered to be bona fide, disqualification may still be an appropriate step.
15. Disqualification may be done in isolation or in conjunction with other compliance options. However, the seriousness and nature of the contraventions and a person's fitness to be a trustee must be considered on a case-by-case basis to determine if disqualification is still an appropriate course of action.
Options other than disqualification that can be taken in relation to a contravention
16. Options other than disqualification include:
- •
- administrative penalties in relation to SMSFs[9]
- •
- issuing a direction to undertake education if the contravention occurred after 1 July 2014[10]
- •
- issuing a direction to rectify a contravention if the contravention occurred after 1 July 2014[11]
- •
- accepting an undertaking from the trustee to rectify the contraventions[12]
- •
- issuing the fund with a notice of non-compliance[13]
- •
- as part of an investigation, freezing the assets of the fund where there is a risk of the members' benefits being eroded or further eroded[14]
- •
- consideration of other applicable Commonwealth laws available to us.
17. Where appropriate, prior to disqualification you should allow the individual to preserve their benefits, but clearly set out the time limits in which they must do so. For example, we may provide the individual with the opportunity to rollover the funds to a super fund regulated by the Australian Prudential Regulation Authority, wind up their SMSF or appoint a registrable superannuation entity licensee[15].
18. Where a decision is made to disqualify one particular individual, this does not lead to the conclusion that all other individuals who are or were trustees of the same fund should be disqualified. The circumstances surrounding each individual's actions must be considered with a holistic view of the facts.
19. Once a decision has been made to disqualify an individual, you must:
- •
- give the individual written notice of the disqualification[16], and
- •
- publish details of the disqualification in the Federal Register of Legislation as a notifiable instrument, in accordance with Disqualifying an individual under SISA (link available internally only).[17]
Disqualifying under subsections 126A(1) or (2) – contraventions
20. When considering disqualification in relation to contraventions of the relevant legislation, you should:
- •
- consider the nature, number and seriousness of the contraventions
- •
- look at the acts of the individual
- •
- consider all the facts of the case
- •
- consider whether there is a future compliance risk.[18]
21. The nature, number and seriousness of contraventions are a question of fact and degree, and it is not possible to apply prescriptive rules to the decision to disqualify.
22. Each case has to be considered individually. Some examples of relevant considerations when determining the seriousness of a contravention are the:
- •
- behaviour of the trustee in relation to the contravention – for example, deliberate actions made in the knowledge that they are in breach of the trust deed and superannuation laws or where third-party professionals have provided clear advice that superannuation laws have been contravened[19]
- •
- extent to which the fund's assets were affected by the contravention[20], including whether the conduct of the trustee exposed the fund to a real risk of permanent depletion of assets or sustained illiquidity[21]
- •
- extent to which the fund's assets were exposed to financial risk and whether there was any loss to the value of the fund[22], including whether the fund was left with minimal or no available funds for a prolonged period[23]
- •
- number and extent of contraventions over a period of time[24], including repeated non-compliance or ongoing failures to meet statutory obligations[25]
- •
- extent to which the trustee's conduct undermined the integrity of the superannuation system, including when the fund's assets were accessed to meet personal financial needs[26]
- •
- extent to which the arrangements were genuinely commercial in nature and reflect an arm's-length dealing[27]
- •
- nature of the contravention in the overall scheme of the legislation – for example, a contravention involving an artificial arrangement intended to undermine the regulatory provisions or the tax concessions offered to SMSFs is likely to be serious.[28]
23. Depending on the facts of the case, it is possible that some factors may be more relevant than others in certain cases. For example, the nature and number of the contraventions and the behaviour of the individual may increase the seriousness of the contraventions, even if there is little financial impact on the fund.[29]
24. Further, the role of a trustee carries significant statutory responsibilities, and individuals who choose to assume this role have an obligation to inform themselves of these responsibilities and to ensure compliance.[30] An individual's lack of financial sophistication does not override this obligation, nor does it excuse serious contraventions.[31]
Assessing the future compliance risk
25. Disqualification is designed to protect the investing public against the risk that people with a history of non-compliance will re-offend.[32] A key factor in making the decision to disqualify an individual is whether, by not taking such action, there will be a future compliance risk.[33]
26. An individual will be considered to have a future compliance risk if:
- •
- it is reasonable to draw that conclusion from their compliance history
- •
- they have not demonstrated a willingness and readiness to comply with super laws.[34]
27. An individual's compliance history includes considering matters in relation to their SMSF, their own personal tax affairs, or that of any other entity in which they have been in a position of responsibility.
28. Consideration should be given to all 5 of the following aspects of compliance, both before and after a contravention:
- •
- registration – whether the trustee is registered for all relevant roles
- •
- lodgment – whether the individual has lodged all returns in the correct format on time without prompting from us[35]
- •
- reporting – whether the individual has reported correctly
- •
- payment of debt – whether the individual paid debts voluntarily by their due dates – further, if the individual has an outstanding debt, whether they have entered into a payment arrangement and fulfilled their payment obligations under the arrangement
- •
- evidence of change in behaviour – whether the individual has provided factual evidence of change in management or administration (or both), to ensure compliance, noting that expressions of regret, remorse and future compliance alone, without such evidence, are of limited weight where the contraventions are extensive or serious, or both.[36]
29. It is imperative to remember that sometimes mistakes are made. What is important is that the individual demonstrates a willingness and readiness to comply with their obligations.
Disqualifying under subsection 126A(3) – fit and proper person
What to take into account when assessing an individual as fit and proper
30. You need to consider 2 things when deciding whether an individual is a fit and proper person.
- •
- The fitness of the person – which is determined with reference to the skills required for them to satisfy the obligations as trustee, including their qualifications, experience and competence. Factors to consider, in relation to fitness of the person, include whether the person
- –
- possesses a reasonable level of skills, knowledge, expertise, experience, diligence and soundness of judgment to undertake and fulfil particular duties and responsibilities of being an SMSF trustee[37]
- –
- demonstrates a genuine understanding of the obligations in the trustee declaration that they signed on establishment of their SMSF[38]
- –
- answers questions from us in a manner that is reasonable in the circumstances.
- •
- Deciding whether an individual is a proper person to be a trustee entails looking at their general behaviour and conduct in the discharge of their duties, and also their reputation and character in relation to the conduct of any relevant business activities.[39] Some considerations, in relation to whether an individual is a proper person to be a trustee, are whether they have:
- –
- contravened the SISA
- –
- the circumstances surrounding the contravention
- –
- demonstrated a willingness to comply with regulatory or other professional requirements[40]
- –
- carried out their role with proper independence (whether their relationship with other trustees has impacted their ability to perform their trustee duties)
- –
- been reprimanded or otherwise sanctioned by a professional or regulatory body under any other relevant laws (relevant laws in this instance would generally include those laws dealing with financial responsibilities, honesty and business transactions)
- –
- managed their personal debts
- –
- demonstrated a high level of integrity
- –
- been substantially involved in the management of entities which have been wound up or failed
- –
- been remorseful and accepted responsibility for their wrongdoing[41]
- –
- continued to act as a trustee or responsible officer after becoming a disqualified person[42]
- –
- did what they understood was right versus what suited their own convenience or comfort.[43]
31. Both fitness and propriety need to be considered in light of the reasonable risks of the individual:
- •
- misappropriating fund monies
- •
- dealing with fund assets in an illegal way
- •
- failing to keep proper records
- •
- knowingly providing inaccurate or misleading information to us, and
- •
- repeatedly and or deliberately failing to provide information to us in compliance with their reporting obligations.
32. A trustee who allows or acquiesces to a contravention by another trustee can be grounds to find that the individual is not a fit or proper person. A trustee should also perform their duties in a manner that does not allow another trustee to contravene super laws and should notify the Regulator as soon as is reasonably practicable after becoming aware of a contravention by another trustee.
33. All circumstances of the case should be considered holistically.
34. The decision to disqualify is for an indefinite period, subject to any applications the individual makes to have the decision revoked under subsection 126A(5) or reviewed under section 344.[44]
35. Both the decision to disqualify under subsections 126A(1), (2) and (3) and the refusal to revoke the disqualification are reviewable decisions.[45]
36. A request to reconsider must be made in writing, setting out the reasons for making the request, and be made within 21 days after the person receives notice of the decision, or within such further time that the Regulator allows.
37. Where a request for a review of the disqualification decision is made under subsection 344(1), the Commissioner does not have the power to stay the decision. However, the trustee can apply to the Administrative Review Tribunal to have the decision stayed pending a review of the decision.[46]
- •
- accepting an undertaking from a trustee, refer to Law Administration Practice Statement PS LA 2006/18 Self-managed superannuation funds – enforceable undertakings
- •
- issuing notices of non-compliance, refer to Law Administration Practice Statement PS LA 2006/19 Self-managed superannuation funds – issuing a notice of non–compliance
- •
- disqualified trustees who are continuing to act, refer to CTU advice.
Amendment history
| Part | Comment |
|---|---|
| Throughout | Content consolidated for technical clarity and currency.
Updated to include references to the relevant legislation, relevant case laws and ATO views. Minor editorial changes were made. |
| Paragraph 4 | Updated wording to remove the term 'considered' for clarity. The provision now states that a disqualified person commits an offence if they continue to act as a trustee or responsible officer. |
| Paragraph 11 | Added new paragraph 11 to reflect the decision in Hart and Commissioner of Taxation [2018] AATA 1267. |
| Footnote 7 | Updated to include a reference to the decision in Goulopoulos and Commissioner of Taxation [2022] AATA 2540. |
| Paragraph 17 | The winding-up option has been included to allow an individual the opportunity to wind up their SMSF before they become disqualified. |
| Paragraphs 20 to 24 | Added a new dot point to reflect subsection 126A(1) and (2).
Updated to include reference to the decision in Fitzmaurice and Commissioner of Taxation [2019] AATA 2217 at 105-113. Added an example to reflect the decision in Omibiyi and Commissioner of Taxation [2025] ARTA 553. Updated to include a reference to the decision in Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121. Updated to include a reference to the decision in "QX971" and Australian Prudential Regulation Authority [1999] AATA 6 at 60. Updated to include a reference to sections 66 and 71. Updated to include a reference to TA 2015/1. Added a new paragraph to reflect the decision in Fitzmaurice and Commissioner of Taxation [2019] AATA 2217. Updated to reflect the decision in Sherallene Alicer and Joshua Ramos and Commissioner of Taxation [2026] ARTA 342. |
| Paragraphs 25 to 29 | Updated to include a reference to decision in Merchant and Commissioner of Taxation [2024] AATA 1102 at [186].
Updated to include the decision in Goulopoulos and Commissioner of Taxation [2022] AATA 2540. Updated to include section 35D. Minor editorial changes were made. Updated to reflect the decision in Sherallene Alicer and Joshua Ramos and Commissioner of Taxation [2026] ARTA 342. |
| Paragraphs 30 to 33 | Updated to include a reference to section 52.
Added a new paragraph to reflect the decision in Hart and Commissioner of Taxation [2018] AATA 1267 at 174. Updated to include a refence to the decision in Australian Broadcasting Tribunal and Bond (1990) 170 CLR 321. Updated to include the decision in Coronica and Commissioner of Taxation [2024] AATA 2592. Added a new paragraph to reflect the decisions in Goulopoulos and Commissioner of Taxation [2022] AATA 2540; Fitzmaurice and Commissioner of Taxation [2019] AATA 2217 at [110]. Added a new paragraph to reflect section 126K. Added a new paragraph to reflect the decision in Goulopoulos and Commissioner of Taxation [2022] AATA 2540. |
| All | Updated to align with amended Practice Statement style and formatting requirements. |
| Part | Comment |
|---|---|
| Throughout | Content checked for technical accuracy and currency.
Updated in line with current ATO style and accessibility requirements. |
| Section 5 Our process | Updated the last dot point to reflect the fact that disqualifications are now published via notifiable instrument under subsection 126A(7) of the SISA. |
| Part | Comment |
|---|---|
| Throughout | Content checked for technical currency and accuracy.
Updated in line with current ATO style and accessibility requirements. |
| Part | Comment |
|---|---|
| Paragraph 8 | Corrected reference to subsection 126A(3). |
| Part | Comment |
|---|---|
| All | Updated to reference the decision in Hart and Hart v. Commissioner of Taxation [2018] AATA 1267. |
| Part | Comment |
|---|---|
| All | Updated to new LAPS style and template. |
| Part | Comment |
|---|---|
| Paragraph 13 | Paragraph 13 deleted as it referred to only SES officers being able to make a decision to disqualify an individual. Now EL2 level officers are authorised. |
| Part | Comment |
|---|---|
| Paragraph 1 | Minor clarification explaining SMSF membership can be either one of two or more individuals to a maximum of four. |
| Contact officer | Updated. |
| Part | Comment |
|---|---|
| Contact officer | Updated. |
| Part | Comment |
|---|---|
| Paragraph 1 | Amended so it only refers to a director of a body corporate. |
| Paragraph 2 | Deleted word intentionally. |
| Paragraphs 16 to 20 | Amended to remove references to appointing an acting trustee in making the decision to disqualify an individual. |
| Paragraph 20 | Replaced by new paragraph 20. |
| Part | Comment |
|---|---|
| Generally | Section 120A is now 126A and section 121 is now 126K. |
| Paragraph 10 | Updated to clarify that assets are only frozen where it is part of an investigation. |
| Paragraph 19 | Corrected to advise acting trustee is appointed only where all trustees are removed. |
| Legislative references | Updated. |
| Contact phone number | Updated. |
© AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA
You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
Date of Issue: 30 November 2006
Date of Effect: 30 November 2006
In their own right or as responsible officer for a corporate trustee.
Section 120 of the Superannuation Industry (Supervision) Act 1993.
Section 126K.
Subsections 126A(1) and (2).
Subsection 126A(3).
VCA and Ors and Australian Prudential Regulation Authority [2008] AATA 580.
Hart and Commissioner of Taxation [2018] AATA 1267.
Goulopoulos and Commissioner of Taxation [2022] AATA 2540 (Goulopoulos) at [59-60].
Section 166.
Section 160.
Section 159.
See Law Administration Practice Statement PS LA 2006/18 Self–managed superannuation funds – enforceable undertakings.
See Law Administration Practice Statement PS LA 2006/19 Self–managed superannuation funds – issuing a notice of non–compliance.
Section 264.
Defined by subsection 10(1).
Subsection 126A(6).
Subsection 126A(7).
Subsection 126A(1) and (2); Fitzmaurice and Commissioner of Taxation [2019] AATA 2217 at [105-113].
Omibiyi and Commissioner of Taxation [2025] ARTA 553 at [27].
Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121.
Sherallene Alicer and Joshua Ramos and Commissioner of Taxation [2026] ARTA 342 (Alicer and Ramos) at [66] and [70].
"QX971" and Australian Prudential Regulation Authority [1999] AATA 6 at [60].
Alicer and Ramos at [66].
Preuss and Australian Prudential Regulation Authority [2005] AATA 748.
Alicer and Ramos [2026] ARTA 342 at [73].
Alicer and Ramos at [68].
Alicer and Ramos at [71].
Section 66 and 71; Taxpayer Alert TA 2015/1 Dividend stripping arrangements involving the transfer of private company shares to a self–managed superannuation fund.
Fitzmaurice and Commissioner of Taxation [2019] AATA 2217 at [112].
Alicer and Ramos at [72].
Alicer and Ramos at [72].
The Taxpayer and Commissioner of Taxation [2002] AATA 1233 at [12]. The investing public may only include members of the individual's own SMSF, per Merchant and Commissioner of Taxation [2024] AATA 1102 at [186].
Goulopoulos at [59].
Goulopoulos at [57-59].
Section 35D.
Alicer and Ramos at [74].
Section 52; Superannuation Industry (Supervision) Bill 1993, Chapter 3, at 3.7.
Hart and Commissioner of Taxation [2018] AATA 1267 at [174].
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at [36-37], per Toohey and Gauldron JJ.
Coronica and Commissioner of Taxation [2024] AATA 2592 at [106], [112], [116-117].
Goulopoulos at [76]; Fitzmaurice and Commissioner of Taxation [2019] AATA 2217 at [110].
Section 126K.
Goulopoulos at [76].
Sections 10 (definition of 'reviewable decision') and 344.
A disqualification under section 126A does not automatically disqualify a person from operating as a company director under the Corporations Act 2001.
Subsection 344(10). See also subsection 32(2) of the Administrative Review Tribunal Act 2024.
File 06/4081; 1-5ARMRUG; 1-12ODZ502
Related Practice Statements:
PS LA 2006/18
PS LA 2006/19
Other References:
Compliance model
Good decision-making model (link available internally only)
Our Charter
Superannuation Industry (Supervision) Bill 1993
TA 2015/1
Legislative References:
SISA 1993 10
SISA 1993 19
SISA 1993 120
SISA 1993 120(1)(a)(i)
SISA 1993 120(1)(a)(ii)
SISA 1993 120(1)(b)
SISA 1993 120(1)(c)(i)
SISA 1993 126A
SISA 1993 126A(1)
SISA 1993 126A(2)
SISA 1993 126A(3)
SISA 1993 126A(5)
SISA 1993 126A(6)
SISA 1993 126A(7)
SISA 1993 126K
SISA 1993 159
SISA 1993 160
SISA 1993 166
SISA 1993 264
SISA 1993 344
SISA 1993 344(1)
SISA 1993 344(10)
Administrative Review Tribunal Act 2024 32(2)
Financial Sector (Collection of Data) Act 2001
Corporations Act 2001 256B
Case References:
Australian Broadcasting Tribunal v Bond
[1990] HCA 33
170 CLR 321
(1990) 64 ALJR 462
(1990) 5 BR 137
(1990) 94 ALR 11
(1990) 21 ALD 1
Australian Prudential Regulation Authority v Derstepanian
[2005] FCA 1121
60 ATR 518
[2007] ALMD 2214
Coronica and Commissioner of Taxation
[2024] AATA 2592
121 ATR 92
Fitzmaurice and Commissioner of Taxation
[2019] AATA 2217
110 ATR 440
(2019) 165 ALD 400
[2021] ALMD 2120
[2021] ALMD 2119
Goulopoulos and Commissioner of Taxation
[2022] AATA 2540
114 ATR 958
Hart and Commissioner of Taxation
[2018] AATA 1267
107 ATR 966
Merchant and Commissioner of Taxation
[2024] AATA 1102
119 ATR 594
2024 ATC 10-708
Omibiyi and Commissioner of Taxation
[2025] ARTA 553
Preuss and Australian Prudential Regulation Authority
[2005] AATA 748
60 ATR 1137
87 ALD 629
41 AAR 332
"QX971" and Australian Prudential Regulation Authority
[1999] AATA 6
Sherallene Alicer and Joshua Ramos and Commissioner of Taxation
[2026] ARTA 342
The Taxpayer and Commissioner of Taxation
[2002] AATA 1233
51 ATR 1192
71 ALD 532
VCA and Ors and Australian Prudential Regulation Authority
[2008] AATA 580
(2008) 105 ALD 236
ISSN: 2651-9526
| Date: | Version: | |
| 2 September 2009 | Updated statement | |
| 20 May 2010 | Updated statement | |
| 11 March 2014 | Updated statement | |
| 9 June 2016 | Updated statement | |
| 22 November 2018 | Updated statement | |
| 17 October 2024 | Updated statement | |
| 20 February 2025 | Updated statement | |
| You are here | 21 May 2026 | Updated statement |