Coronica and Commissioner of Taxation (Taxation)

[2021] AATA 1225

Coronica and Commissioner of Taxation (Taxation) [2021] AATA 1225 (11 May 2021)

Division:TAXATION AND COMMERCIAL DIVISION

File Number:          2018/7159

Re:Giuseppe Coronica

APPLICANT

AndCommissioner of Taxation

RESPONDENT

DECISION

Tribunal:Senior Member K James

Date:11 May 2021

Place:Melbourne

The Tribunal:

1.Sets aside the decision dated 5 September 2018 under s 126A of the Superannuation Industry (Supervision) Act 1993 (the Act) to disqualify the Applicant.

2.Substitutes a decision that:

a.the Applicant provide a written undertaking in the form set out in Schedule A attached (the Undertaking);

b.the Undertaking be accepted pursuant to s 262A of the Act; and

c.the matter be remitted to the Respondent to enter into the Undertaking in accordance with the Tribunal’s decision at paragraph 2(b) above.

...[sgd]....................................................................

Senior Member K James

Catchwords

SUPERANNUATION – self-managed superannuation fund – decision to disqualify Applicant as trustee of self-managed superannuation fund – nature, seriousness and number of contraventions – whether Applicant fit and proper person to be a trustee – whether breach by trustee of Trust Deed – whether breach by trustee of covenants – decision set aside and substituted

Legislation

Superannuation Industry (Supervision) Act 1993

Cases

Coronica and Commissioner of Taxation (Taxation), Re [2021] AATA 745 (1 April 2021)

REASONS FOR DECISION

Senior Member K James

11 May 2021

1. On 1 April 2021, the Tribunal reserved its decision in this matter pending further directions hearing. The Tribunal’s reasons and findings of fact in this matter and the related matter of 2018/7160 have been published as Coronica and Commissioner of Taxation (Taxation) [2021] AATA 745 (1 April 2021). The Tribunal now makes the following decision.

2. The Tribunal:

   (a)Sets aside the decision dated 5 September 2018 under s 126A of the Superannuation Industry (Supervision) Act 1993 (the Act) to disqualify the Applicant.

   (b)Substitutes a decision that:

   (i)the Applicant provide a written undertaking in the form set out in Schedule A attached (the Undertaking);

   (ii)the Undertaking be accepted pursuant to s 262A of the Act; and

   (iii)the matter be remitted to the Respondent to enter into the Undertaking in accordance with the Tribunal’s decision at paragraph 2(b) above.

I certify that the preceding 2 (two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K James

...[sgd]....................................................................

Associate

Dated: 11 May 2021

Dates of hearing:	16–17 September, 8 October 21–22 November 2019
Date final submissions received:	22 April 2020
Counsel for the Applicant:	Mr Matthew Meng
Solicitors for the Applicant:	Mr Terry O'Connor
Counsel for the Respondent:	Ms Meredith Schilling
Solicitors for the Respondent:	Mr Jack Clarke, Australian Taxation Office

SCHEDULE A

FORM OF UNDERTAKING

A.Mr Giuseppe Coronica will not act as Trustee of any superannuation fund other than the G Coronica Superannuation Fund (the Fund), of which Mr Coronica will become and remain the sole member.

B.All financial activities of the Fund will be transacted through the Fund’s own bank account rather than those of its member(s) and/or related parties.

C.The Fund will appoint and continue to engage an independent Accountant and Tax Agent to attend to the Fund’s accounting and taxation obligations.

D.The Fund will appoint and continue to engage an independent auditor bound by the accounting profession’s ethical standards on independence to attend the Fund’s annual audit obligations.

E.The Fund will engage a firm of lawyers and licensed investment adviser to advise that all existing and (prior to them being entered into) new investments, other than investments in listed securities, comply with the Act and these undertakings. All such advice will be provided by the trustee(s) to the independent auditor in a timely manner. This requirement applies to each of the five income years following the execution of this undertaking, unless an auditor contravention report is lodged with the ATO in respect of one or more of those income years. Where that occurs, the term of the undertaking may be extended.