The Administrative Review Tribunal (ART) has backed a decision by the ATO to disqualify an individual from acting as the responsible officer of a corporate trustee of an SMSF in regard to offshore related-party investments and multiple compliance failures.
The decision was made by the ART on 9 April in the case of Maietta and Commissioner of Taxation [2026] ARTA 534 after the ATO’s initial decision to disqualify Roberto Maietta in late 2024 was taken by him to the tribunal in March 2025.
The tribunal heard Maietta, as the responsible officer of a corporate trustee of the Diglesias and Rmaietta Superannuation Fund, transferred almost all its assets to a related overseas property development company controlled by the trustee and failed to lodge annual returns for a number of years.
In handing down the tribunal’s decision, senior member Mark Harrowell stated it had found Maietta had breached section 62 of the Superannuation Industry (Supervision) (SIS) Act 1993 in regards to the sole purpose test because while the development generated a commercial return, the SMSF monies were used to complete a personal project of the trustee.
Additionally, Harrowell noted there had been a breach of section 35D of the SIS Act in regards to the lodging of SMSF annual returns and this behaviour was ongoing.
“The legislation contemplates preparation of accounts, the auditing of accounts and the submission of that information to the [ATO] commissioner by way of annual returns. This requirement ensures the fund complies with all statutory requirements and is operated in a manner which facilitates the provision of benefits to members,” he stated in the ruling.
“As a responsible officer of the trustee, it was incumbent upon the applicant to ensure these obligations were met. The applicant failed to do so and the trustee continues to breach the obligation under section 34D of the [SIS Act].
“Consequently, the repeated nature of the contraventions of the lodgement obligations under section 34D of the [act], the time returns have been outstanding and the fact there is no evidence that steps [to rectify] satisfy me that they provide grounds for disqualification of the applicant; and the contravention of section 62 of the [act] and the fact the funds advanced have not yet been repaid nor has any interest, satisfy me that there are grounds for disqualification of the applicant.”
Jason Spits
SENIOR JOURNALIST
Jason is a senior journalist with Benchmark Media and writes for the selfmanagedsuper website and magazine and smstrusteenews website. He has covered financial services since 1999 and has written about life insurance, superannuation, investment management and financial advice, in both a freelance and in-house capacity, and also did a brief stint as a media manager for an industry association. He has been the editor of trade titles Money Management and Financial Standard, and was most recently senior journalist with life insurance title Riskinfo.
Articles by Jason