Sent: 09-03-2011 12:00:43
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Recent SMSF Tribunal & Court decisions
Some recent Federal Court cases (Olesen v Eddy  FCA 13 and Dolevski v Hodpik Pty Ltd  FCA 54) involved the Tax Offcie suing Self Managed Super Fund trustees for super law breaches.
These cases follow on from a 2007 Federal Court where a SMSF trustee was successfully sued for also breaching the super laws.
In these recent cases the ATO was successful in having penalties applied in one case but not in the other.
There is much that is being made of these cases especially in some media outlets. Some have claimed that SMSF trustees in general can breath easier at night because of the ATO's lack of success in one of the above cases.
Perhaps people with this view have forgotten that the ATO possesses extensive powers in the super laws. A lack of success in one of these cases can be easily overcome by the seeking penalties via other means.
In my view these cases continue to show the generosity of the ATO. In these three cases the trustees were given ample opportunity to fix their super fund up but for a variety of reasons were unable to solve the problems with their particular fund.
In a recent Administrative Appeals Tribunal Court case (ZDDD v Commissioner of Taxation  AATA 3) the trustee sought to have a non-complying status overturned. The AAT turned the trustees down given that the trustees proposed solution to their non-complying super fund had little likelihood of actually taking place.
The message still seems to be pretty clear. Do the right thing under the super laws. If you breach the rules do your best to quickly fix the problem yourself. If for some reason you can't fix the problems go 'cap in hand' to the ATO and ask for their guidance and assistance to fix the problem. And then promptly do what they tell you.
Only those who ignore the ATO's "we want you to comply" communications or propose unrealistic solutions to the Tax Office risk finding themselves in the nasty place of super fund or personal penalties.
Finally please consider purchasing a copy of "A How To Book Of Self Managed Super Funds". You can look at the contents page at the following link: http://www.atcbiz.com.au/r.php?r=0mjd6ne
The 4th edition was released just before Christmas.
For details of the changes made from version 3 to version 4 visit: http://www.atcbiz.com.au/r.php?r=8mz1024
As you'll see from the list there have been many changes.
Two purchase options are available - once only subscription - $55 inc GST - or an annual subscription will gives you access to all the updates made throughout the year ($120 inc GST). The book can be purchased at the following link: http://www.atcbiz.com.au/r.php?r=5a4agqb
This email is general in nature only and does not constitute or convey specific or professional advice. Legislation changes may occur quickly. Formal advice should be sought before acting in any of the areas discussed. Be aware that the information in these articles may become innaccurate with time. Responsibility is disclaimed for any inaccuracies, errors or omissions. Particular investments are neither invited nor recommended and hence this publication is not "financial product advice" as defined in Section 766B of the above legislation. All expressions of opinion by contributors are published on the basis that they are not to be regarded as expressing the official opinion of any other person or entity unless expressly stated. No responsibility for the accuracy of the opinions or information contained in the contributor's articles is accepted by any other person or entity. Copyright: This publication is copyright. If you wish to reproduce this article you require a license, which can be purchased here, to do so.