Brooks and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal considered a dispute between Mr. Brooks and the Commissioner of Taxation concerning decisions made by the Commissioner. The primary dispute involved the classification of moneys withdrawn from a self-managed superannuation fund (the Fund) and the subsequent tax implications. The Applicant sought review of decisions relating to his assessable income and shortfall interest charges.

The Tribunal was required to determine whether moneys withdrawn from the Fund constituted a loan or a payment of a member benefit, and consequently, whether these moneys were assessable income of the Applicant. Additionally, the Tribunal had to consider whether to reduce shortfall interest charges. The Applicant also raised concerns about unfair treatment compared to his former spouse, Ms. A.

The Tribunal reasoned that the Applicant bore the burden of proving that the Commissioner's assessment was incorrect, as per s 14ZZK of the *Taxation Administration Act 1953* (Cth). It found that a payment of $6,600 made into the Fund during the 2015 financial year caused the moneys previously treated as a loan to cease being a loan and become a member benefit, thereby becoming assessable income. This conclusion was based on the satisfaction of elements under s 304-10(1) of the *Assessment Act*, including the receipt of a benefit from the Fund's assets and the Fund not being maintained in accordance with the *Superannuation Industry (Supervision) Act 1993* (Cth) (SIS Act), as no conditions of release had been met. The Tribunal noted that the Applicant's former spouse, Ms. A, had repaid her portion of the loan, meaning she had not received a member benefit in the relevant financial year.

The Tribunal affirmed the Commissioner's decisions. The reviewable decision concerning the assessable income was affirmed, and the decision not to reduce shortfall interest charges was also affirmed, although a portion of the charge was remitted.