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Fund has only assets Cash at Bank, Trustee withdrawn 90% Cash $195,000/ from Fund after 9 months Refunded in Same Financial year, now made declaration that mistakenly withdrawn, & claiming any mistake should not be penalty or Qualified report, & Refused to pay 8.5% Interest, its breach of S-65, audit report Part A & B qualified, Trustee not like to accept the Qualified audit Report - what can I do ?
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Hi Md
Yes my view is that it should be a breach of section 65 re a loan or financial assistance to a member (assuming money went to the member).
Arguably there is also a breach of:
1) Section 62 - sole purpose test
2) Section 109 - arm's length transaction (re no interest)
4) Reg 5.08 - Member minimum benefits must be maintained
My view is if the money went out & then back in say over a 1 week period it may be reasonable to argue it was a mistake & that no qualification or ACR is required. However, given it occurred over a 9 month period my view is it should be qualified upon as the trustees have not met their obligations to the Fund in terms of the SIS legislation.
If other forum members have a view please let the forum know.
Thanks
SMSF AAA