Burswood Care Pty Ltd (ACN 154 327 545) as trustee for Roshana Family Trust and Commissioner of Taxation (Taxation)

Burswood Care Pty Ltd, as trustee for the Roshana Family Trust, sought to have penalties and general interest charges imposed by the Commissioner of Taxation remitted under Part 7 of the *Superannuation Guarantee (Administration) Act 1992* (Cth). The dispute concerned the Commissioner's refusal to exercise discretion to remit these amounts, which arose from late superannuation contributions. The matter was heard by Deputy President Bernard McCabe of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Commissioner's decision to refuse remission of the superannuation guarantee charge (SGC) and associated penalties and interest was justified. This required the Tribunal to consider the scope of the Commissioner's discretion under section 58 of the *Superannuation Guarantee (Administration) Act 1992* (Cth) and the factors relevant to its exercise, particularly in light of the COVID-19 pandemic and the taxpayer's culpability.

Deputy President McCabe reasoned that while the COVID-19 pandemic presented unprecedented challenges for businesses, the discretion to remit the SGC was not to be exercised lightly. The Tribunal considered the taxpayer's history of late payments, the reasons for the lateness, and the steps taken to rectify the situation. The Deputy President noted that the pandemic, while a significant factor, did not automatically excuse non-compliance with superannuation obligations. The taxpayer's culpability, including a pattern of late lodgments and payments, weighed against the exercise of discretion. The Tribunal applied the principles that the discretion is to be exercised judicially, considering all relevant circumstances, and that the purpose of the SGC is to ensure employees receive their superannuation entitlements.

The Tribunal affirmed the Commissioner's decision, finding that the refusal to remit the SGC, penalties, and general interest charges was not unreasonable or otherwise reviewable. The taxpayer was therefore liable for the full amount of the superannuation guarantee charge, penalties, and interest.