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The AAT has held that an amount of $53,000 of superannuation benefit, withdrawn by the taxpayer from AustralianSuper and paid to the ETK Superannuation Fund (ETK Fund), was correctly included as assessable income in his income tax return for the 2007 year.

The ETK Fund was established in November 2006. It was not a complying superannuation fund, and indeed was not a superannuation fund at all. The Commissioner submitted that it appeared to have been merely two bank accounts established for the purposes of enabling persons to obtain early release of their superannuation in contravention of the legislative regime.

The taxpayer said that because he needed money for his disabled son’s heart surgery in 2007, he withdrew $53,000 from AustralianSuper, which was deposited into the ETK Fund. He said that he was not aware that the ETK Fund was not a legitimate superannuation fund. He stated that he also thought he was eligible to access his retirement fund. The taxpayer also indicated that he only received $38,370 of the $53,000. The taxpayer said that he did not make inquiries as to the status of the rest of the money, assuming it had been used to pay tax, and argued that he required the withdrawal of the funds due to the financial hardship in which he found himself.

In finding that the $53,000 was correctly included in the taxpayer's assessable income for the 2007 year, the AAT remitted in full the penalty that had been imposed by the Commissioner.

Yrorita and FCT [2012] AATA 716 (AAT; Ettinger SM, 16 October 2012).


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