Fitzmaurice and Commissioner of Taxation (Taxation)

This case concerned an appeal by the applicant against a decision of the Commissioner of Taxation. The dispute centred on alleged contraventions of the *Superannuation Industry (Supervision) Act 1993* (Cth) by the applicant in her capacity as a responsible officer of the trustee company for the Alisar Superannuation Fund, a self-managed superannuation fund (SMSF). The Commissioner had determined that the applicant was not a fit and proper person to hold such a position.

The legal issues before the court included whether the applicant, as a responsible officer of the trustee company, had breached various statutory obligations. These obligations related to the "sole purpose" test for superannuation funds, the early release of benefits, the maintenance of investments at arm's length, the valuation of fund assets, record-keeping, and the lodgement of annual returns. Specifically, the court had to consider whether certain withdrawals from the fund constituted loans to members or bona fide expenses, and whether the fund's investments and operations complied with the Act.

The court found that the applicant had failed to satisfy it that certain withdrawals made in September 2012 were bona fide expenses of the Superannuation Fund. This conclusion was based on several factors, including that the damaged cabins, which were the subject of the withdrawals, were owned by the Canada Trust, not the Superannuation Fund, and that insurance payouts for the damage were received by the Canada Trust. Furthermore, the withdrawals were paid into the applicant's personal account and recorded as member loans, and a sum approximating the withdrawals was later repaid to the Superannuation Fund, suggesting a repayment of advances. The court also noted discrepancies in the timing of the alleged works and the withdrawals.

Consequently, the Tribunal affirmed the decision of the Commissioner of Taxation. The applicant was disqualified from acting as a responsible officer of a body corporate of an SMSF, as she was found not to be a fit and proper person to hold such a position.