The Administrative Review Tribunal (ART) has affirmed an ATO decision to disqualify an SMSF trustee who engaged in more than 100 withdrawals from his fund to make mortgage payments, rejecting the claim he should be given a second chance.
ART made the decision on 12 May in the case of Omibiyi and Commissioner of Taxation (Taxation and business) ARTA (2025) after the ATO disqualified Oladokun Omibiyi, who was the director and a responsible officer of the corporate SMSF trustee for Omibiyi Pty Ltd, on 5 April 2024.
In facts presented for the case, Omibiyi set up the fund in September 2014 and included a clause in the trust deed that highlighted the fund was not able to make an investment in the form of a loan or other financial assistance to a member of relative of a member.
However, he admitted the clause was breached on 117 occasions leading to numerous contraventions of the Superannuation Industry (Supervision) Act and his disqualification under section 126A(2) of that legislation.
The case details also revealed Omibiyi was first notified by an SMSF auditor in December 2017 he had breached section 65 of the SIS Act and continued to receive notices from the fund’s auditors about ongoing breaches until January 2024 with the total amount of money taken from the fund totalling $121,834.92.
These ongoing contraventions lead to the ATO disqualifying him because he posed a future risk to compliance within the superannuation system.
Omibiyi responded to the notice of intended disqualification by acknowledging and accepting the contraventions outlined by the regulator but asking “for leniency and the opportunity to rectify my errors”. He appealed the decision on compassionate grounds as he believed he should be given a ‘second chance’.
In rejecting that position, ART stated there was not disagreement as to whether Omibiyi has breached the SIS Act but “the question for the tribunal is whether the nature or seriousness of the contraventions, or the number of them, provide grounds for disqualification”.
It agreed with the ATO’s view Omibiyi presents an ongoing risk of non-compliance adding “the past contraventions were serious and repeated over a six-year period despite independent advice of his wrongdoing”.
“I find that the applicant, despite not taking advice, did understand what he was doing was in breach of clause 65 and was a contravention of his obligations in the superannuation act.
“It appears that the applicant was willing to continue to contravene until the regulator stepped in. The contraventions only stopped when the commissioner intervened and commenced an audit.
“The nature and seriousness of the past contraventions indicate that the applicant is likely to contravene again. This is a factor that weighs heavily in favour of disqualifying the applicant.“
