Delbake Pty Ltd and Commissioner of Taxation

Delbake Pty Ltd sought review of a decision by the Commissioner of Taxation concerning superannuation guarantee charge penalties. The dispute centred on whether Delbake had established exceptional circumstances that prevented it from lodging superannuation guarantee statements or providing information to the Commissioner regarding its shortfall within the relevant periods. The matter was heard by Mr Rob Reitano, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether Delbake had demonstrated exceptional circumstances that prevented it from lodging its superannuation guarantee statements or providing information to the Commissioner about its shortfall prior to 28 February 2022. This involved considering the impact of the COVID-19 pandemic, the illness of an advisor, and a previous audit, to determine if these constituted circumstances that genuinely prevented disclosure.

The Tribunal found that the circumstances relied upon by Delbake did not prevent it from lodging the required statements or providing information to the Commissioner before 28 February 2022. The Member noted that Delbake's subsequent provision of information after 1 April 2022 indicated its capacity to do so earlier. Consequently, the Tribunal set aside the Commissioner's decision in relation to the period after 31 March 2018 and remitted that part for reconsideration, while affirming the Commissioner's decision for the period from 30 September 2015 to 31 March 2018.