Perth-based tax agent Ashley Glenn Cross has had his registration terminated after the Administrative Appeals Tribunal affirmed the Tax Practitioners Board’s decision that he was not a fit and proper person after falsely declaring that SMSFs were audited at the time of their annual return lodgements.
The 125 SMSF annual returns were lodged over a nine-year period, under certificates that falsely stated that the funds had been audited prior to lodgement, and dishonestly included the name of the auditor and the date of the audit.
The TPB, who were referred to the issue by the ATO in 2019, also found that eight funds had not been audited for 10 years or more.
In his defence, Mr Cross argued that the sole motivation for making the false declarations was to avoid late lodgements and to “avoid penalties being incurred by the clients and adverse consequences on future lodgement dates and the regulated status of the funds”.
He told the tribunal that subsequent audits of the funds had confirmed that the funds had “complied with the relevant superannuation legislation and regulations”, and that the only incorrect information in the returns were the incorrect audit dates.
AAT deputy president Stephen Boyle took a dim view of Mr Cross’ contentions, noting that he deliberately chose to mislead the ATO over nine years, and had only stopped doing so after he was caught by the Tax Office.
“This was not a clerical error where a wrong date was inserted; it was a calculated misrepresentation that the audit had been completed and false declarations on 125 occasions,” Mr Boyle said.
“These misrepresentations and false declarations were made in the full knowledge of the legal significance of the need for audits to be completed prior to lodgement of the returns and the legal consequences that flow if they are not.”
Mr Boyle also stated that he was unconvinced about Mr Cross’ acceptance of his conduct, noting that Mr Cross had repeatedly downplayed the gravity of making false declarations by asserting that the only error was to lodge with an incorrect audit date.
“This was not a case of a momentary lapse of judgement; this was a deliberate choice made on 125 occasions over a nine-year period and it appears that this dishonesty only stopped because the deception and the making of the false declarations was discovered by the ATO,” Mr Boyle said.
“The issue was not that he had lodged returns out of time (now supposedly addressed by appointing new auditors) or been sloppy in completing the returns with an incorrect audit date; the issue was that he had deliberately misled the ATO as to the completion of the audits of the funds and made false declarations.”
The deliberate misuse of SMSF auditor numbers had been identified as an ongoing area of concern with the ATO and the TPB, with 74 tax practitioners singled out last year over such misuse.
Instances where an SMSF annual return has been lodged prior to an audit being finalised is understood to be “not uncommon” in the industry, in a bid to avoid late-lodgement penalties.