Aussiegolfa Pty Ltd as trustee of the Benson Family Superannuation Fund and Commissioner of Taxation (Taxation)

The case involved Aussiegolfa Pty Ltd, as trustee of the Benson Family Superannuation Fund, challenging a determination made by the Commissioner of Taxation. The dispute centred on whether an investment by the Benson Fund in the DomaCom Fund, and a related leasing arrangement, constituted a breach of the "in-house asset" rules under the *Superannuation Industry (Supervision) Act 1993* (Cth) (SIS Act). The matter came before Deputy President Pagone of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine the validity of the Commissioner's determination made under section 71(4)(b) of the SIS Act. This determination, if upheld, would have the effect of causing the Benson Fund to breach the in-house asset test. The Tribunal was required to consider whether Aussiegolfa's investment in the DomaCom Fund, which exceeded 5% of the Benson Fund's assets, and the leasing arrangement with Ms Benson, contravened the provisions of Part 8 of the SIS Act, specifically the in-house asset rules and potentially the sole purpose test.

Deputy President Pagone reasoned that section 82 of the SIS Act mandates that the market value of a regulated superannuation fund's in-house assets must not exceed 5% of the fund's total assets. The evidence indicated that Aussiegolfa's investment in the DomaCom Fund, and the leasing arrangement, likely resulted in the Benson Fund exceeding this threshold. The Tribunal noted that the Commissioner's determination under section 71(4)(b) was made in response to these concerns. The Tribunal also considered the procedural aspects of the review, including the parties' agreement on the specific decision under review, which was the Commissioner's initial determination to make the section 71(4)(b) determination, rather than the subsequent decision to refuse to revoke it.

The Tribunal's final orders were not explicitly stated in the provided text, but the clear objective of Aussiegolfa was to have the Commissioner's determination, made under section 71(4)(b) of the SIS Act, set aside. The Tribunal acknowledged that it might be necessary for further submissions regarding the precise identification of the decision under review and the form of its own decision.