Facts of decision

On 6 June 2008, the Lyons Family Superannuation Fund (‘Fund’) was registered as a self managed superannuation fund. At all relevant times, Mr Lyons and his now former wife, Mrs Lyons, were the trustees and members of the Fund.

Between 1 July 2008 and 3 July 2008, the Fund received rollovers in respect of the members. As at 3 July 2008, the Fund had cash assets of $193,459.44.

At the time the Fund was established, Mr and Mrs Lyons carried on a retail business. The business suffered financial difficulties and Mr and Mrs Lyons ultimately became bankrupt in March 2010.

Prior to their bankruptcy, as a means of supporting the struggling business, Mr Lyons (in his capacity as trustee of the Fund) commenced lending money to his brother-in-law, Mr Ellis. Mr Ellis would then immediately transfer the borrowed sums to the retail business account of Mr and Mrs Lyons. Between the period of 3 July 2008 and 25 May 2009, a total of $190,000 was lent from the Fund to Mr Ellis. None of this $190,000 was recoverable.

Mr and Mrs Lyons were advised by their financial planner that loaning the money is the manner described above was allowable. The judge in the case described this advice as ‘wrong.’

The matter came to a head in the subsequent financial year when the Fund’s auditor lodged an auditor contravention report in respect of the Fund for the 2009 financial year. This led to an AO audit — with which Mr Lyons fully complied — and ultimately a letter of non-compliance being issued for the Fund in relation to the 2009 financial year. Mr Lyons did not dispute the contraventions or the letter of non-compliance.

The matter was then brought to the Federal Court to determine the appropriate penalties that should be imposed.

Outcome

The outcome of the matter was that:

• Mr Lyons was ordered to pay a monetary penalty of $32,500;

• Mr Lyons was ordered to pay the Commissioner’s costs of and incidental to the proceeding fixed in the sum of $5,000; and

• with respect to the non-compliance, the trustees of the Fund were assessed on the assets of the Fund immediately prior to the 2009 financial year, being $2,480.

Key lessons

Lyons’ case provides the following insights for self managed superannuation fund trustees:

• Trustees are ultimately responsible — Acting as trustee of a self managed superannuation fund is a serious role and trustees are under an obligation to ensure the fund complies with superannuation law. It is no defence to say that the trustee relied on advice. That being said, reliance on advice is likely to be taken into consideration with respect to the quantum of penalties to be imposed for any contravention.

Practically, this means that if there is any doubt in relation to the compliance of a proposed course of action, expert advice should be sought from an appropriate professional and second opinions should be obtained as deemed necessary.

Further, this serves as another reminder that, although increasing in popularity, self managed superannuation funds are not for everyone and potential trustees should be made aware of the added responsibility and risks associated with running such a fund.

• No such thing as a ‘passive trustee’ — For reasons that are unclear from the decision, the Deputy Commissioner only commenced proceedings against Mr Lyons (and not Mrs Lyons). Despite this fact, it is important to remember that — unless the deed provides otherwise — co-trustees are under a duty to act jointly and their decisions as trustee must be made unanimously.

• Timing of non-compliance can have significant consequences — As previously noted, the Fund was made non-complying for the 2009 financial year and assessed on the assets of the Fund immediately prior to 1 July 2008, being $2,480. Had the rollover amounts been paid into the Fund one day earlier (ie, prior to 1 July 2008), the trustees would have been liable for significant additional tax.

This illustrates how the financial year in which a fund is made non-complying can have significant consequences.

(For completeness, the parties to Lyons’ case agreed that the above was not planned as a means of obtaining a taxation benefit, but rather a stroke of luck with respect to timing.)

• ‘New’ penalty regime could change things — From 1 July 2014, the ATO has broader powers to impose administrative penalties for contraventions of the superannuation legislation. The contraventions in Lyons case occurred before this time and therefore did not apply. It is unclear whether the new law would have changed the outcome of Lyons’ case.

Conclusion

Lyon’s case provides various insights for self managed superannuation fund trustees. Perhaps most importantly, it serves as a reminder that running an SMSF comes with added responsibility and risk. Trustees are responsible for all relevant administrative and compliance tasks and relying on professional advice is no defence to a contravention. It follows that SMSFs are not for everyone.

SMSFs are primarily for those people who wish to be in control of their financial affairs and who are capable of taking an active role in the management of their fund. People who are not willing to take an active interest in their own financial affairs should consider the possible advantages of leaving their superannuation affairs to professionally managed public offer funds.

Bryce Figot, director, DBA Lawyers.