1. Notices of Amended Assessment were issued to the Applicant by the Commissioner on 11 September 2018, 21 April 2020 and 17 June 2021[15] in relation to the 2009-2013 and 2015-2017 years ("the Notices of Assessment").[16] It is noted that there is no Notice of Amended Assessment on the file with the Tribunal for the 2014 year.
2. The Notices of Assessment treated the Applicant as a non-complying fund. The tax result of that was that a higher rate of tax was imposed on the Applicant as a consequence of subsection 26(2) and the former section 35 of the Income Tax Rates Act 1986 (Cth)[17] when the Applicant was found to be non-compliant in a particular year. Further tax also arose on income previously treated in a manner as if the Applicant was a complying fund.[18]
3. The Applicant objected to the Notices of Assessment on 17 May 2020 by separate objections to each year in the Proceedings, other than 2014 ("2021 Proceedings Objections").[19] There is no objection to the 2014 year, which is consistent with there being no Notice of Amended Assessment on the Tribunal file for the 2014 year.[20]
4. The Applicant objected to the Notices of Assessment and is limited to the grounds stated in the 2021 Proceedings Objections before the Tribunal as a consequence of paragraph 14ZZK(a) of the Taxation Administration Act 1953 (Cth).
5. Focusing on the years at issue in these Proceedings, the 2021 Proceedings Objections contain the following grounds:

(a) For 2009[21]: > > "The [Applicant] is compliant ...The calculations are incorrect as it (sic) did not take into account the unwinding arrangement and dividend refunded of $35,000 fully franked. The calculations are incorrect as a non- compliant are not correct as it did not take into account the unwinding arrangement and dividend refunded of $35,000 [fully] franked. The proper calculation is as follows. Tax @ 45% on 50,000 $22,500, -Tax@ 15% on $50,000 7,500 Tax Error Compensating Factor 15,000. Further notwithstanding the decision, the calculations on the basis (sic) are not correct based on Mr Coronica's submission to the Commissioner of 21st January 2020. [22] .... The amount in error is $451,788.72 and $15,000 totalling $466,788.72." > > The Application for Review that was eventually filed on 3 August 2021 also contains statements relating to the calculations for the 2009 year in "Why do you claim the decision is wrong?".[23] > > (b) For 2013[24]: > > "The [Applicant] is compliant ...The calculations are incorrect as it (sic) did not take into account the unwinding arrangement and dividend refunded of $35,000 fully franked. The proper calculation is as follows - Tax@ 45% on $50,000 $22,500 - Tax@ 15% on $50,000 7,500 - Tax Error Compensating Factor 15,000. ln view of the information thus far provided we respectfully request that the Commissioner deems the [Applicant] as a complying Fund enjoying the concessional treatment as the [Applicant] is compliant in each and every respect." > > (c) For 2015:[25]

"The [Applicant] is compliant. Each and any issue raised by the Commissioner has been complied with. The [Applicant] has one member and has been in retirement phase as from 1st July 2016. The member's preservation age, namely 60 years of age, able to access benefits was 7th April 2008.The calculations are incorrect as a non-compliant (sic) are not correct as it (sic) did not take into account the unwinding arrangement and dividend refunded of $35,000 fully franked. The proper calculation is as follows. Tax@ 47% on $50,000 - $23,500 - Tax@ 15% on $50,000 - 7,500 - Tax Error Compensating Factor $16,000. ln view of the information thus far provided we respectfully request that the Commissioner deems the [Applicant] as a complying Fund enjoying the concessional treatment as the Fund is compliant in each and every respect."

(d) For 2016:[26]

"The [Applicant] is compliant. Each and any issue raised by the Commissioner has been complied with. The [Applicant] has one member and has been in retirement phase as from 1st July 2016. The member's preservation age, namely 60 years of age, able to access benefits was 7th April 2008. ln view of the information thus far provided we respectfully request that the Commissioner deems the [Applicant] as a complying Fund enjoying the concessional treatment as the [Applicant] is compliant in each and every respect."

(e) For 2017:[27]

"The [Applicant] is compliant in every respect. The [Applicant] has duly lodged the return by an independent tax agent, namely Ms Mansour. The [Applicant] has been audited by a new independent auditor, namely Mr Benjamin Lacey. Mr Lacey reported in the management letter that there are no matters to report. The [Applicant's] return and the corresponding actuarial calculations was prepared on the basis of Deputy President's (sic) McCabe of the AAT that the Commissioner's decision be stayed. Therefor (sic) the calculations by the ATO have not taken into account any adjustment applicable. As this [Applicant] is subject to proceedings in the AAT, final calculations will be subject to directions relative to the proceedings. The [Applicant] has one member and has been in retirement phase as from 1st July 2016. The member's preservation age, namely 60 years of age, able to access benefits was 7th April 2008. In view of the information thus far provided we respectfully request that the Commissioner deems the [Applicant] as a complying Fund enjoying the concessional treatment as the [Applicant] is compliant in each and every respect."

1. The Commissioner disallowed the 2021 Proceedings Objections by Objection Decision dated 14 June 2021.[28] The Applicant's August Submissions suggest that the expression "[the Applicant] is compliant" should have been expressed as contending that the Commissioner should issue a notice of compliance for 2013 to 2017.[29]
2. There is an issue in relation to the 2017 year, because an amended assessment dated 17 June 2021 was issued after the Objection Decision dated 14 June 2021. The Commissioner's Closing accepted that there is the potential for a further objection to the 17 June 2021 amended assessment.[30] As any such objection would presumably proceed on the same basis as the 2017 objection in the current 2021 Proceedings Objections, I agree with the Commissioner that my decision provides guidance for any such objection in any event. For the purposes of this decision, I am considering the Applicant's objection to the assessment dated 21 April 2020 when considering the Applicant's objection for the 2017 year that is relevant to the 2021 Proceedings.[31] I also note that as the very issue sought to be considered for the 2017 year is going to be considered in the 2025 Proceedings,[32] there seems no practical necessity for the Applicant to seek to file an objection to the 17 June 2021 amended assessment.
3. The Applicant filed an Application for Review in this Tribunal on 3 August 2021.[33]

1. The 2025 Proceedings each relate to the Commissioner's decision dated 6 March 2025.[34] Pursuant to section 344 of the SIS Act a request can be made to review decisions by the Regulator (here, the Commissioner). The Applicant's request was made by letter dated 11 November 2024[35] and was accepted by the Commissioner despite being late.[36] The Applicant's request set out a number of contentions as to why the 2013 and 2014 (and other years) did not contain serious contraventions of the SIS Act, and ended by stating that "The Fund ought to be given compliance for all years noted in this Application for Review." This has been accepted by the Commissioner as a request for review under the SIS Act.
2. The Applicant's request for review under the SIS Act was of the Commissioner's decision dated 23 August 2024.[37] In the 23 August 2024 decision the Commissioner determined that it would not issue a notice of compliance to the Applicant for the years at issue in the Proceedings. The Commissioner decided in the 23 August 2024 decision that the Applicant was a non-complying fund for each of the income years from 2010 to 2017 (inclusive).[38] The Commissioner's 6 March 2025 decision confirmed its 23 August 2024 decision.
3. On 7 March 2025 the Applicant filed an Application for Review of the Commissioner's 6 March 2025 decision in this Tribunal.[39] This was in accordance with subsection 344(8) of the SIS Act.

Has needless time been wasted in these interlocutory proceedings?

1. From its filings at the Tribunal,[40] the Applicant's submissions are that (2009 aside) the 2021 Proceedings and the 2025 Proceedings are about the same thing - the Commissioner's failure to issue notices of compliance to the Applicant in the 2013, 2014,[41] 2015, 2016 and 2017 years. If that is what the Applicant intends, the 2021 Proceedings for 2013 and 2015-2017 could be withdrawn by the Applicant as the 2025 Proceedings cover the notice of compliance issue in those years as well as in 2014. In addition, if that is right, then at a practical level, the Commissioner's Application could be focused on the proceedings related to the 2009 year in the 2021 Proceedings and the proceedings related to the 2013 and 2014 years in the 2025 Proceedings. To the Tribunal's immense frustration, it appears that the Applicant agrees with the Tribunal.[42] The Tribunal has been required to spend needless time on the Commissioner's Application due to the Applicant not getting its proceedings in order.
2. Unfortunately, the 2021 Proceedings for 2013 and 2015, 2016, and 2017 have not been withdrawn by the Applicant.[43] And, when considering the 2021 Proceedings Objections, other than in relation to 2016, the 2021 Proceedings Objections consider elements relating to the calculation of the Notices of Assessment for the 2009, 2013, 2015-2017 years which followed the non-compliance notice. That might be a different ground, although as will be seen below, in substance it is not.
3. All of this means that the 2021 Proceedings remain on foot alongside the 2025 Proceedings. As a consequence, I proceed to consider the Commissioner's Application in its entirety.

1. The Commissioner's Application proceeds on the basis that the Proceedings should be dismissed under section 101 of the ART Act.[44]
2. In summary, the Commissioner's Application is on the basis that:

(a) The 2021 Proceedings should be dismissed pursuant to section 101 of the ART Act because the Applicant's objections for all the years at issue was on the basis that the Applicant was a complying fund. [45] The Tribunal does not have jurisdiction to make such a finding.[46] The 2021 Proceedings are frivolous and vexatious as a result.[47] > > (b) Alternatively, the 2021 Proceedings should be dismissed because the issue of the Applicant's compliance had been determined by the 2021 Tribunal Decision and the 2024 Tribunal Decision. This means the 2021 Proceedings have already been determined, or are res judicata, (the "estoppel issue"), and/or are an abuse of process, frivolous, vexatious, misconceived and/or have no prospects of success.[48] > > (c) The 2021 Proceedings for 2009 also set out other grounds for objection in 2009.[49] These grounds relate to the calculation methodology following the Applicant being found to be non-complying. The Commissioner maintains these grounds also have no real prospects of success, no legal basis, and the proceedings should be dismissed in relation to 2009.[50] > > (d) The 2025 Proceedings should be dismissed under section 101 of the ART Act because they are frivolous, vexatious, misconceived and have no reasonable prospect of success because of the findings in the 2021 Tribunal Decision and/or the 2024 Tribunal Decision.[51]

1. In summary, the Applicant's Submissions are that the Proceedings should not be dismissed for the following reasons:

(a) The 2021 Proceedings in relation to 2009 is solely about assessment calculations which should clearly be heard.[52] > > (b) The other 2021 Proceedings are about the failure by the Commissioner to provide the Applicant notices of compliance under the SIS Act.[53] > > (c) The Applicant says it is contending "that the Respondent by reason of conduct of the [Applicant] should issue a notice [of compliance] for the extant years in dispute, namely 2013 to 2017."[54] The Applicant says the 2021 Proceedings are not reventilating the non-compliance notice issued in 2009.[55] The Applicant suggests its Application for Review could be amended and the issue is semantic.[56] The Applicant also seems to disagree that there is no power for the Tribunal to determine it is a complying fund when considering an assessment from the Commissioner, although this is not clearly expressed.[57] > > (d) The 2021 Tribunal Decision, the 2024 Tribunal Decision and the Federal Court decision were about the disqualification of Mr Coronica as trustee of the Applicant being non-complying in 2009. Any issue of compliance of the Applicant was only about the 2009 year and that is not being re-litigated.[58] > > (e) The 2014 year should be included in the 2021 Proceedings.[59] The Tribunal's assessment of this submission from the Applicant is that it is made when thinking about the overall Proceedings. In the 2025 Proceedings the 2014 year is clearly included. For the reasons noted above,[60] the Tribunal has concluded that the 2014 year is simply not in the 2021 Proceedings. > > (f) The 6 March 2024 decision is said to stem from discussions between the Applicant and the Commissioner to "bring together the various issues under discussion".[61] This supports the Tribunal's perception that the Applicant considers the 2021 Proceedings and the 2025 Proceedings as being about the same thing. It may well be that the Commissioner sought to assist the Applicant to ventilate the issue it wanted to ventilate using the appropriate provisions of the SIS Act. There is limited material about the background to the 2025 Proceedings on the Tribunal's material.[62] > > (g) The Applicant reiterates its position that the 2021 Tribunal Decision and the 2024 Tribunal Decision do not hold that there was non-compliance in 2013 and 2014, as those cases were not about that issue.[63] > > (h) The Applicant says that it took steps to resolve the issues that resulted in the 2009 notice of non-compliance and unwound matters of concern. It says that those efforts should have been taken into account, and there were no serious contraventions in 2013 or 2014, that fact was required to be considered, and a notice of compliance should have been issued.[64] > > REASONS FOR DECISION

101 Tribunal may dismiss application if frivolous, vexatious etc.

(1) The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) has no reasonable prospects of success; or

(c) is otherwise an abuse of the process of the Tribunal.

(2) If the Tribunal dismisses an application (the substantive application) under subsection (1), the Tribunal may, on application by a party to the proceeding in relation to the substantive application or on its own initiative, order that the applicant for the substantive application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a specified kind or kinds.

(3) The order has effect despite any other provision of this Act or any other Act.

1. This case is about the Commissioner's Application to dismiss the Proceedings under section 101 of the ART Act, and in an application to dismiss I am not determining the outcome of the issues raised by the Applicant in its Applications for Review.
2. However, when determining whether a matter has no reasonable prospects of success and should be dismissed in accordance with section 101 of the ART Act, I am required to consider the matters at issue and make a practical judgment as to whether the prospects of success are merely 'fanciful'. [65]

The 2021 Proceedings - the ground that the Applicant is a complying Fund

3. Each of the 2021 Proceedings Objections submits the Applicant as a complying fund, and each objection to some degree seeks that the Commissioner "deems the [Applicant] as a complying Fund enjoying the concessional treatment as the [Applicant] is compliant in each and every respect."
4. A decision under the SIS Act to issue a non-compliance notice or a decision not to issue a compliance notice is a reviewable decision as defined in section 10 of the SIS Act[66] and reviewable by the Tribunal pursuant to subsection 344(8) of the SIS Act (assuming the Commissioner has been requested to reconsider its decision under subsection 344(1) of the SIS Act).[67] Challenging under the SIS Act is totally different to what the Applicant has sought to do in the 2021 Proceedings.
5. I agree with the Commissioner,[68] the Notices of Assessment resulted from the application of Division 295 of the ITAA 1997, and the status of the Applicant as a complying fund or non-complying fund is not determined under the ITAA 1997 or the TAA, but the SIS Act. The processes in the SIS Act need to be followed in order to challenge that point, and that is what the Applicant appropriately does in the 2025 Proceedings. The Notices of Assessment cannot be challenged under the TAA or ITAA 1997 on the basis that the Applicant was a complying fund. The Tribunal has no power in such a process to determine the Applicant to be a complying fund.
6. I find that pursuant to section 101 of the ART Act the 2021 Proceedings should be dismissed to the extent that they proceed on this ground. This is because I am satisfied that this ground has no reasonable prospects of success. I agree with the Commissioner's Submissions in this regard.[69] I also agree with the Commissioner[70] that in accordance with section 101 of the ART Act, this ground is also frivolous, vexatious, and abuse of process and misconceived.[71] It is pursuing a process related to the amended assessments, when it is the SIS Act processes that should be pursued.
7. The relevant objection for the 2016 year focuses only on the Applicant being said to be a complying fund.[72] This means that the 2021 Proceedings related to the 2016 year (that is, 2021/5280) are dismissed in their entirety pursuant to section 101 of the ART Act because those proceedings have no reasonable prospect of success, and are frivolous, vexatious and misconceived. At a practical level this is not problematic for the Applicant. This is because the Commissioner has conceded that the 2025 Proceedings relating to 2016 (2025/4640) can proceed. That proceeding is on the basis that a notice of compliance should have been issued to the Applicant and this is the very issue the Applicant says it wishes to ventilate.
8. Because of my holdings above, I do not need to consider the estoppel issue when considering the 2021 Proceedings. That issue is instead considered below in relation to the 2025 Proceedings.

The 2021 Proceedings- grounds relating to the calculation methodology

1. The 2021 Proceedings Objections in relation to 2009, 2013, 2015 and 2017[73] all include a ground or grounds that to some degree relates to the calculation of the Notices of Assessment applicable to those years.
2. In relation to the 2021 Proceedings for the 2013, 2015 and 2017 years, I do not accept that the ground on the calculation methodology is anything more than an attempt to ventilate the Applicant's status as a complying fund again. The basis for challenge is that the amended assessments are incorrect and excessive because that tax rate should have been 15% which is the rate applicable to a complying fund for the low taxed component[74] or that other concessional rules applicable to complying funds should be applicable. That is also repeated in the 2009 objection. That ground of objection is inescapably connected to a contention that the assessments are wrong because the Applicant is a complying fund. For the same reasons as above, that has no reasonable prospects of success, and is frivolous, vexatious and misconceived. It must be pursued under the SIS Act notice processes, a review under the SIS Act, and proceedings related to that before the Tribunal. I note that in the Applicant's Closing there is a suggestion that a "credit adjustment issue" arises for 2013 and 2014 by reference to the 2025 Proceedings.[75] 2014 is not in the 2021 Proceedings, and there is no explanation of a 'credit adjustment issue' in the 2013 objection relevant to the 2021 Proceedings.[76] I do not consider this further in the context of 2013 in the 2021 Proceedings as the Applicant's Submissions indicate that it is not pursuing it in that context.
3. For the above reasons, I dismiss the 2021 Proceedings for 2013 (2021/5278), 2015 (2021/5279) and 2017 (2021/5281).
4. Looking at the Applicant's objection for the 2009 year,[77] it also contains contentions that the Applicant is a complying fund and the same calculation issues as above that are inescapably connected to the Applicant being a complying fund. The 2009 objection was filed prior to the issue of the 2021 Tribunal Decision and the Applicant suggests in the Applicant's Submissions that it is not focused on that issue.[78] However, that matter has not been withdrawn by the Applicant. For the sake of clarity, in relation to 2009, that contention is dismissed for the 2021 Proceedings for the 2009 year (2021/5264) because that matter was determined by the 2021 Tribunal Decision.
5. Aspects of the calculation of the 2009 amended assessment are raised in the objection for 2009 by cross-reference to the Applicant's letter dated 21 January 2020.[79] The Commissioner says that these matters have no "proper legal basis" and that the 2021 Proceedings for 2009 should be dismissed because they have no reasonable prospects of success.[80]
6. The Applicant's claim in relation to 2009[81] is that:

(a) One of the effects of the Applicant being a non-complying fund in 2009 is that tax arises under section 295-325 of the ITAA 1997. > > (b) Section 295-325 requires a calculation in accordance with the formula in that provision. > > (c) Errors have been made by the Commissioner when applying that formula: > > > (i) First, historical cost was used by the Commissioner and not market value. This was resolved and is not at issue before the Tribunal.[82] > > > > (ii) Second, when applying the formula in section 295-325 the Applicant says that Commissioner did not calculate the "crystallised undeducted contributions" amount correctly, noting that amount must relate to periods after 30 June 1983. The Applicant says that using the Commissioner's Super Crystallisation Calculator[83] it calculated the "crystallised undeducted contributions" amount as $1,589,289.48 compared to $822,375 which was calculated by the Commissioner. The Applicant says the Commissioner has considered the undeducted contributions but not the "crystallised" undeducted contributions (without saying where "crystallised" undeducted contributions is defined and analysing the legislation). > > > > (iii) Third, the formula in section 295-325 requires determination of the contributions segment and there is a vague suggestion from the Applicant that this may have also been calculated incorrectly[84] - (together, the "crystallisation issue"). > > (d) The Applicant's Closing also refers to a "credit adjustment issue relating to the unwinding of the arrangement"[85] which is said to be applicable to the 2009 proceedings (the "credit adjustment issue").

7. I agree with the Commissioner that the analysis of these matters is not fully set out by the Applicant.[86] However, the crystallisation issue has a relatively clear focus on the mechanics of the calculation applying to the Applicant following the Applicant being found to be a non-complying fund. That is completely different to the other years in the 2021 Proceedings which solely seek to ventilate the Applicant's status claiming that it is a complying fund and certain tax consequences therefore follow. I record that I am troubled by the vague nature of the Applicant's submissions, and came close to dismissing the crystallisation issue as an abuse of process on a similar basis to the credit adjustment issue discussed below. It was only by a very slender margin that I have not dismissed this ground.
8. The Applicant bears the burden of proof when pursuing the 2021 Proceedings for the 2009 year. The Applicant must demonstrate by reference to the relevant statutory provisions why the Commissioner's assessment for 2009 is excessive. The Applicant is specifically warned that if it proceeds by saying that the Commissioner's Super Crystallisation Calculator gave it a different result, or by relying upon what is in its 21 January 2020 letter, that will not meet its burden of proof. That calculator is not the law, setting out a calculation is not a submission on the law. The 21 January 2020 letter does not set out the law fully, clearly and completely. The legislative provisions, identifying the relevant definitions, in what legislative provisions those definitions appear (for example, what is the difference between "crystallised" undeducted contributions and "undeducted contributions" and where that conclusion is sourced from in the legislation), and why section 295-325 should result in a different outcome than the Commissioner's assessment must be focussed upon before the Tribunal.
9. I have concluded that I am not prepared to dismiss the 2021 Proceedings for the 2009 year to the extent those proceedings are focused on the crystallisation issue and the proper application of section 295-325 of the ITAA 1997 after the Applicant was found to be a non-complying fund. That is not focused on challenging the Commissioner's notice that the Applicant was a non-complying fund. That is a matter that relates to the assessment, belongs in Part IVC of the TAA, and can be challenged before the Tribunal.
10. The credit adjustment issue is suggesting that the Applicant should be provided an adjustment to the amended assessment for 2009 because after the event it took steps to unwind some matters that gave rise to its status as a non-complying fund. There is no clear articulation of this ground from the Applicant.
11. This issue seems to be about steps taken by the Applicant to eliminate a dividend and an associated franking credit after being determined to be a non-complying fund.[87] It is understood this related to an investment by the Applicant in an associated company, contrary to the in-house assets rule and other regulatory requirements, as found in the 2021 Tribunal Decision confirming the non-compliance notice.[88] The detail of that matter seems to the Tribunal to be inescapably related to the Applicant's non-complying status and has been put by the Applicant to bolster its argument that it was a complying fund.[89] In addition, steps to rectify the issues that led to the Applicant being determined a non-complying fund were considered in the 2021 Tribunal Decision and dismissed including on the basis it happened after the event.[90] This ground is seeking to relitigate that aspect. I dismiss this ground on the same basis as set out above at paragraph ‎40, and because it was already considered and determined in the 2021 Tribunal Decision.
12. I also dismiss this ground because it is vexatious and an abuse of process to pursue a ground that has never been articulated in any clear manner.[91] More than four years have passed since this was raised. Nothing has been filed that provides anything like the detail necessary. This simply wastes the time of the Tribunal, and is unfair and oppressive.[92]
13. As an aside, I note that there could be debate as to whether the power in section 101 of the ART Act enables the Tribunal to dismiss part of the 2009 proceeding and leave the crystallisation issue live in 2009. This is because the text of section 101 uses the term "proceedings" and unlike similar legislative provisions[93] section 101 does not also refer to a part of the proceedings. In my view, the Tribunal clearly has the power to dismiss a part of proceedings, as the text of section 101 also does not clearly say the power to dismiss is only over all of or the whole of the proceedings. The purpose of section 101 is to enable the Tribunal to control its own proceedings and efficiently use its resources[94] by dismissing claims that are frivolous, vexatious, misconceived, an abuse of process or without reasonable prospects of success. Limiting section 101 of the ART Act to circumstances where proceedings are dismissed in their entirety would not meet that purpose. Legislative text is to be read with its context and purpose in mind.[95] In any event, the Tribunal could direct the Applicant to remove of any dismissed grounds of objection pursuant to section 79 of the ART Act, but the Tribunal considers this is unnecessary because of its view about the scope of section 101..

1. The last matter to consider is the 2025 Proceedings for 2013 (2025/4637) and 2014 (2025/4638). The question is whether the Applicant's case that a compliance notice should have been issued to it in 2013 and 2014 has already been determined by the 2021 Tribunal Decision and/or the 2024 Tribunal Decision.
2. When considering the estoppel issue, I have reviewed the case law and the ART Act and concluded that:

(a) There is an obvious public interest in ensuring that further litigation does not arise in relation to a matter that has been determined and that there is an end to litigation. Section 9 of the ART Act include an objective to promote public trust and confidence in the Tribunal. If decisions of the Tribunal are endlessly revisited that would be contrary to that objective. > > (b) However, res judicata or cause of action estoppel may not apply to administrative decisions such as those made by the Tribunal. The case law is broadly consistent on that .[96] > > (c) The case law is not entirely consistent on the applicability of issue estoppel (covering findings of fact) to the Tribunal.[97] In balancing that case law, I have concluded that where a decision on a question is made by the Tribunal, issue estoppel may arise if that issue is sought to be revisited at the Tribunal. I also rely upon the High Court's decision in Kuligowski v Metrobus (2004) 220 CLR 363[98] in support of that proposition. Case law also supports the view that a form of estoppel may arise if earlier Tribunal proceedings deal with the question at issue or the ingredients in the cause of action at issue.[99] > > (d) However, estoppel may not arise where the earlier Tribunal decision at issue sets out conclusions which are not relevant or fundamental to the issue that was decided by that earlier Tribunal.[100] > > (e) Putting aside for the moment issue as to whether and how a form of estoppel can apply to the Tribunal, tax cases suggest that to the extent the case at issue considers the same cause of action considered in an earlier case, then the matter cannot proceed. For example, in Chemical Trustee Ltd v Deputy Commissioner of Taxation [2014] FCAFC 27 at [18] a tax matter could proceed because different notices of assessment were at issue from those considered in an earlier case, and the debts sought to be collected were different debts than were in the earlier case. That was to be contrasted with Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 where the Commissioner sought judgment for a debt owed to it, made an error in its writ, claiming considerably less that what was actually due (approximately $25,557 compared to approximately $255,579). Terms of settlement were reached, and judgment entered for the amount due. By way of separate writ, the Commissioner subsequently sought to recover the remainder. The High Court held at [21]-[25] that the first judgment and the second proceedings were about the same cause of action (the same debt), and accordingly the Commissioner was estopped and could not proceed. > > (f) Even if it could be maintained that issue estoppel or cause of action estoppel do not apply to the Tribunal, it is appropriate for the Tribunal to prevent the revisiting of claims that have been previously determined by the Tribunal. This would be by way of the Tribunal's powers under section 49, section 52, and section 53 of the ART Act which entitle it to manage the procedure, evidence and issues before it in its discretion.[101] In doing so, the Tribunal will have in mind its objectives in section 9 of the ART Act. > > (g) Tribunal case law supports the conclusion that re-litigation of the same issue in later Tribunal proceedings is an abuse of process under section 101 of the ART Act particularly where there is no new evidence to warrant a further decision.[102]

3. I have referred above[103] to the paragraphs in the 2021 Tribunal Decision and the 2024 Tribunal Decision which consider 2013 and 2014. I consider why those decisions consider 2013 and 2014.
4. The 2021 Tribunal Decision considers the 2010 to 2014 years when considering paragraph 42A(5)(b) of the SIS Act.[104] Subsection 42A(5) provides that a non-complying self-managed superannuation fund such as the Applicant can be determined to be a complying fund despite breaches of the SIS Act. Case law establishes that considering whether there have been breaches in future years is relevant to determining the seriousness of the contraventions and all other relevant circumstances under paragraphs 42A(5)(b) and 42A(5)(c) of the SIS Act.[105] It is in that context in which the 2013 and 2014 years are considered by the Tribunal in the 2021 Tribunal Decision.
5. It is true that determining whether a Notice of Compliance should be issued in relation to 2013 and 2014 was not directly at issue in the 2021 Tribunal Decision nor the 2024 Tribunal Decision. However, contraventions of the SIS Act and related regulations were directly at issue and directly relevant to the matters considered in the 2021 Tribunal Decision and the 2024 Tribunal Decision.
6. In the 2021 Tribunal Decision this was because the Tribunal considered section 42A of the SIS Act which itself involved considering whether there were contraventions in years after 2009.[106] In the 2024 Tribunal Decision this was because the Tribunal was considering section 126A of the SIS Act and this requires considering whether the SIS Act was contravened, on how many occasions, and the seriousness of those contraventions. In that statutory context, in the 2024 Tribunal Decision the Tribunal came to conclusions about contraventions, including relating to 2013 and 2014.[107]
7. I record that I have carefully considered the 2013 year, noting that the 2021 Tribunal Decision concluded at one point in its decision that it had insufficient evidence to conclude whether there was more than one contravention in that year and did not make findings about whether certain contraventions arose in 2013. I record I considered whether the 2025 Proceedings for the 2013 year could continue. However, the nature of the Applicant's submissions in these interlocutory proceedings have persuaded me against that outcome. In addition, and in any event, the 2024 Tribunal Decision reaches specific conclusions about contraventions in 2013 as well as about their seriousness.[108] That too convinced me it was an abuse of process to allow the 2025 Proceedings in relation to the 2013 year to continue.
8. The Applicant's Closing makes it very clear that the Applicant is relitigating the factual and legal holdings in the 2021 Tribunal Decision. The Applicant's Closing focuses on the requirements of paragraph 42A(5)(b)[109] one of the matters directly determined in the 2021 Tribunal Decision, including with reference to 2013 and 2014.[110] In addition, the Applicant's Closing then proceeds to overtly go through the various paragraphs of the 2021 Tribunal Decision and raise arguments against the conclusions reached in the 2021 Tribunal Decision about the 2013 and 2014 years. There is nothing new in any of these submissions.
9. The question of whether there were contraventions in 2013 and 2014 was decided.[111] The taxation consequences have already been considered.[112] The question of the seriousness of the contraventions has already been decided.[113] These matters are direct ingredients of the cause of action at issue in the 2025 Proceedings and were ingredients of the matters at issue in the earlier litigation.[114] The earlier litigation does not need to be about exactly the same matter as the 2025 Proceedings for it to be an abuse of process for the Applicant to seek to challenge conclusions reached on the same issues before the Tribunal again.
10. I have concluded it would be an abuse of process to allow the Applicant to continue with the 2025 Proceedings for 2013 and 2014. The Applicant is directly seeking to relitigate matters the Tribunal has already made findings about, where those findings were ingredients to the cause of action at issue in those earlier proceedings, involved conclusions about 2013 and 2014, and the same matters are ingredients to the cause of action at issue in the 2025 Proceedings about 2013 and 2014. Case law supports the view that the Applicant should not be permitted to proceed on this basis.[115]
11. I have decided to dismiss the 2025 Proceedings as a result as an abuse of process. I have also concluded that to do otherwise would undermine the objectives of the Tribunal, particularly promoting public trust and confidence in the Tribunal.

(a) 2014 is not part of the 2021 Proceedings and there is no reviewable decision in relation to that year in the 2021 Proceedings. Any attempt to litigate the 2014 year as part of the 2021 Proceedings is dismissed pursuant to section 97 of the ART Act. > > (b) The following proceedings are dismissed under section 101 of the ART Act - 2021/5278 (2013), 2021/5279 (2015), 2021/5280 (2016); 2021/5281 (2017) 2025/4637 (2013) and 2025/4638 (2014). > > (c) 2021/5264 (2009) can proceed only on the crystallisation issue, and all other grounds are dismissed under section 101 of the ART Act. > > (d) This means that the matters that can proceed in the Tribunal are 2021/5264 to the extent of the crystallisation issue, as well as 2025/4369, 2025/4640, and 2025/4641.

2. If the Applicant disagrees with this decision, it can appeal it, or it can seek reinstatement of any or all of the dismissed proceedings under section 102 of the ART Act. It is for the Applicant to determine whether to proceed with either of those options, or whether to proceed to have the matters that remain live heard by the Tribunal.

........................[SGD]..................................

[1] The Commissioner made this application first on 18 August 2025 ("Commissioner's August Application"), and then by an amended application on 12 September 2025 ("Commissioner's September Application"). I refer to both of those applications in aggregate as "the Commissioner's Application" in this decision.

[2] Other than those specified at paragraph ‎3(b) of this decision.

[3] The Applicant filed a response to the Commissioner's August Application on 21 August 2025 ("Applicant's August Submissions"), and a further response to the Commissioner's September Application on 3 October 2025 ("Applicant's September Submissions"). I refer to Applicant's August Submissions and the Applicant's September Submissions in aggregate as "the Applicant's Submissions" in this decision.

[4] Respondent's Reply Submissions dated 17 October 2025 ("Commissioner's Reply") [1], [10], [55] - [59].

[5] See footnote 20 below.

[6] That is, continuing the proceedings would be futile, can lead to no possible good, there is no cause of action or the proceedings are obviously untenable and manifestly groundless: see cases such as Pitt v OneSteel Reinforcing Pty Limited [2008] FCA 923 [9]; JF Keir Pty Limited v Sparks [2008] FCA 611 [62]; JKQT and Commissioner of Taxation [2019] AATA 5034 [77]; Nugawela and Commissioner of Taxation [2021] AATA 1636 [27], Attorney-General v Wentworth [1988] NSWCA 8; (1988) 14 NSWLR 481, 491 and General Steel Industries Inc. v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125, 129.

[7] Subsection 26(1) of the Income Tax Rates Act 1986 (Cth).

[8] The Applicant says the 2009 proceedings are not in this basis, but it has not withdrawn those grounds. It should have done so.

[9] It is noted that the Applicant's name in the 2021 Tribunal Decision and the 2024 Tribunal Decision is referred to as "G Coronica Superannuation Fund" and not "G Coronica Pty Superannuation Fund". From checking the previous files, it is understood the Applicant is the Fund considered in the earlier proceedings and that in the various proceedings the trustees of the fund were referred to. The Tribunal accepts the Commissioner's Closing Submissions dated 7 November 2025 ("Commissioner's Closing") [7]-[10] that there is no issue in this regard, and the earlier proceedings are about the same applicant as the current proceedings.

[10] Coronica and Commissioner of Taxation [2021] AATA 745, [323]-[324], [329].

[11] The Applicant says this was for reasons of cost: Applicant's August Submissions [6].

[12] ST9-1032. Commissioner's September Application [30]. Applicant's August Submissions [8].

[13] Coronica and Commissioner of Taxation [2024] AATA 2592 [14], [51]. [77e], [90].

[14] The Applicant says this was for reasons of cost: Applicant's August Submissions [6].

[15] The 17 June 2021 assessment is referred to at T2-21 [20], Applicant's August Submissions [8], 17 June 2021 assessment provided by the Commissioner on 7 November 2025.

[16] T11-T17. 17 June 2021 assessment provided on 7 November 2025.

[17] 45% or 47% depending upon the year in question. The former section 35 of the Income Tax Rates Act 1986 (Cth) remains relevant to some years - see Treasury Laws Amendment (Personal Income Tax Plan) Act 2018 (Cth) Schedule 2, item 14.

[19] T3-T10. The objection for the 2017 year is undated, but is assumed to be 17 May 2020, as that is the date referred to in the Commissioner's Objection Decision at T2.

[20] The Tribunal materials contain no objection to 2014 and no Notice of Amended Assessment to 2014. The objection decision at issue is dated 14 June 2021 and it too does not issue a decision relating to 2014. This means that the Tribunal does not accept that the 2014 year is included in the 2021 Proceedings and any effort to proceed on 2014 is dismissed by the Tribunal under section 97 of the ART Act for want of jurisdiction. This seems of no practical significance for the Applicant, as the 2014 year is included in the 2025 Proceedings and is considered in that context below.

[28] T2. The Commissioner's Objection Decision at T2-19 refers to the 2016 income year twice, and it is assumed the last reference should read '30 June 2017" and that a typographical error was made.

[29] Applicant's August Submissions [11]. This supports the view that, absent 2009, the 2021 Proceedings and the 2025 Proceedings are substantively about the same thing in relation to whether the Applicant is a complying fund.

[30] Commissioner's Closing [16]-[20].

[32] See paragraph ‎3(b) above.

[33] T1. On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) proceedings that were not finalised before 14 October 2024 are continued and finalised by the Administrative Review Tribunal. Anything done in relation to any such proceeding before 14 October 2024 is taken to have been done by the Administrative Review Tribunal.

[35] This letter was provided to the Tribunal by the Commissioner on 7 November 2025. The Commissioner's Closing [21] states that this letter was received in the Commissioner's systems on 27 February 2025.

[40] For instance, the Applicant's August Submissions [1], [6&7], [11], [12], [27], [30], [36 to 39], [40]. This is the same rationale for the 2025 Proceedings.

[41] Noting that 2014 is not covered in the 2021 Proceedings.

[42] This seems to be the case from Final Submissions to Respondent's Application for Dismissal pursuant to Directions of General Member Dunne made 23 October 2025 dated 29 October 2025 ("Applicant's Closing") [1]-[3] as the only 2021 Proceedings focused upon are those relating to 2009.

[43] I note the Commissioner also expressed its frustration at the positions stated by the Applicant to be the case in later submissions, without the Applicant having taken the procedural steps necessary for those submissions to actually be accurate. For example, see the Commissioner's Reply [5]. It was not until after the interlocutory hearing that the Applicant actually withdrew proceedings relating to the 2010-2012 years, yet in the Applicant's August Submissions [1A] this is stated as a fact, a fait accompli, when that was not the case.

[44] Commissioner's Reply [10], [56].

[45] T3-22 for the 2009 year (although this was prior to the 2021 Tribunal Decision, and is assumed by the Commissioner to be withdrawn taking into account the Applicant's August Submissions [1], [12], [40]. See Commissioner's Reply [11], [12], [50], Commissioner's September Application [11], [12]; T7-29, T8-30, T9-31; T10-32.

[46] Commissioner's September Application [29]-[33].

[47] Commissioner's September Application [34].

[48] Commissioner's September Application [36]; Commissioner's Reply [13b].

[50] Commissioner's Reply [50]-[54]; Commissioner's September Application [40]. Applicant's Closing [1].

[51] Commissioner's September Application [56], [57]; Commissioner's Reply [20], [21], [26], [27], [30], [34], [35], [36], [38], [40], [41-[46]].

[52] Applicant's August Submissions [40].

[53] Applicant's August Submissions [1], [6&7], [11], [12], [27], [30], [36 to 39], [40]. Applicant's Closing [2].

[54] Applicant's August Submissions [11]. This is the same rationale for the 2025 Proceedings.

[55] Applicant's August Submissions [1], [6&7], [12].

[56] Applicant's August Submissions [27].

[57] Applicant's September Submissions [54-57] "[T]his Tribunal stands in the shoes of the Respondent and should take special notice that the contraventions as alleged took place many years ago. There can be no ongoing fault." Applicant's August Submissions [12], [30].

[58] Applicant's August Submissions [6&7], Applicant's September Submissions [54-57].

[59] Applicant's August Submissions [11].

[60] See footnote 20 above.

[61] Applicant's September Submissions [43].

[62] There is some limited material at ST8.

[63] Applicant's September Submissions [54-57]. Applicant's Closing.

[64] Applicant's September Submissions [54-57]. Applicant's Closing 2-10.

[65] Spencer v Commonwealth of Australia [2010] HCA 28, [25].

[66] Particularly paragraphs (e) and (f) of the definition of reviewable decision.

[67] This is what the 2025 Proceedings are about.

[68] Commissioner's Reply [17], [31].

[69] Commissioner's September Application [29]-[33].

[70] Commissioner's September Application [24].

[71] Re Filsell and Comcare [2009] AATA 90 [33].

[72] See paragraph ‎17(d) above.

[73] 2021/5278 (2013), 2021/5279 (2015), and 2021/5281 (2017).

[74] Subsection 26(1) of the Income Tax Rates Act 1986 (Cth).

[76] See paragraph ‎17(b) above.

[77] See paragraph ‎17(a) above.

[78] Applicant's August Submissions [1], [12], [40]; Applicant's September Submissions [54-57]; Applicant's Closing [1]. The Commissioner assumed that to be the position: Commissioner's Reply [11].

[80] Commissioner's September Application [40]. Commissioner's Reply [50]-[54].

[81] Noting that the 2009 objection specifically refers to the Applicant's letter dated 21 January 2020 (T3-23) and also see Applicant's August Submissions [11], [12].

[82] Applicant's August Submissions [11], [12]. T3-23 [4].

[83] https://www.ato.gov.au/calculators-and-tools/super-crystallisation-calculator.

[84] T3-25 [14] -as defined in sections 995-1 and 307-220 of the ITAA.

[86] Commissioner's September Application [40]. Commissioner's Reply [50]-[54].

[87] Referred to in the Applicant's letter dated 11 November 2024. Any franking credit may have been refunded to the Applicant on the basis it was a complying fund, and the Applicant might be seeking to say that it adjusted or reversed that, and so this cannot be taken into account in any assessment consequent upon the Applicant being found to be a non-complying fund in 2009. The 2021 Tribunal Decision at [312d] suggested this occurred post-audit and it is not clear how and whether this impacted 2009 or how and whether this should be taken into account when issuing the assessment under section 295-325 of the ITAA 1997 with reference to any of the legislative provisions. There is nothing clearly articulating this ground.

[88] For instance, 2021 Tribunal Decision [54]-[73], [313]-[314].

[89] This is how it is put in the Applicant's September Submissions [54-57], as being a factor to take into account when determining the seriousness of contraventions.

[90] 2021 Tribunal Decision [312], [318]-[329].

[91] That is, this ground is so vague it is not capable of forming any basis for response or conclusion, resulting in oppressiveness and unfairness: Rush v Nationwide News Pty Ltd [2018] FCA 357 [92]; Willmot v State of Queensland [2024] HCA 42 [61].

[92] For the avoidance of doubt, to the extent that the Applicant is seeking to rely on this ground in the 2025 Proceedings (i.e, in 2013 (2025/4637) and 2014 (2025/4638)), it is dismissed particularly because it is an abuse of process.

[93] For example, section 102QAB of the Family Law Act 1975 (Cth) refers to "the whole or any part of proceedings" in a similar context.

[94] Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) [675] and following.

[95] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 55 [78]; section 15AA of the Acts Interpretation Act 1901 (Cth).

[96] Comcare Australia v Grimes [1994] FCA 1054; (1994) 121 ALR 485, 492. Noting that there are cases such as Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 and Bogaards v McMahon [1988] FCA 161 (although the case was not decided on the basis of estoppel) which are to the effect that consent decisions including those by the Tribunal may found cause of action estoppel.

[97] Mehrabad and Secretary, Department of Immigration and Border Protection [2015] AATA 790, [14]-[20]; Minister for Immigration & Ethnic Affairs v Daniele (1981) 5 ALD 135 at 139; Commonwealth v Sciacca (1988) 17 FCR 476 at 480; Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 96-97; Comcare Australia v Grimes [1994] FCA 1054; (1994) 50 FCR 60 at 64.

[98] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 involved a state industrial Tribunal and a workers' compensation decision. At [22], the High Court accepted a submission that issue estoppel extends to a decision made by such a Tribunal where it had jurisdiction to determine the matter at issue and issues a final decision.

[99] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532; Bogaards v McMahon [1988] FCA 161 [40]-[48] (although the case was not decided on the basis of estoppel); Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, 452-453; Comcare Australia v Grimes [1994] FCA 1054; (1994) 121 ALR 485, 489 [28]-[50], 491-493; Filsell and Comcare [2009] AATA 90 [48]-[58].

[100] Commonwealth of Australia v Sciacca (1988) 78 ALR 279, 282-283.

[101] Filsell and Comcare [2009] AATA 90 [61].

[102] Re Quinn and Australian Postal Corporation (1992) 15 AAR 519; Novosel v Comcare [2017] FCA 722; (2017) 72 AAR 269, 298; Jablonka and Comcare [2025] ARTA 2176 [33]-[35].

[103] See paragraphs ‎10 and ‎12 above.

[104] Coronica and Commissioner of Taxation [2021] AATA 745, [313].

[105] Re The Trustee for the R Ali Superannuation Fund and Commissioner of Taxation [2012] AATA 44 [68]; Re Montgomery Wools Pty Ltd as trustee for Montgomery Wools Pty Ltd Super Fund and Commissioner of Taxation [2012] AATA 61 [133].

[106] See paragraph ‎55 above.

[107] Coronica and Commissioner of Taxation [2024] AATA 2592 [90], [97], [100], [101], [102] (where the 2024 Tribunal Decision agreed with the conclusions at [323]-[324] of the 2021 Tribunal Decision), [105], [106], [112]. It was also because the Tribunal was hearing a case on remittal and needed to consider matters afresh, after noting that the 2021 Tribunal Decision on non-compliance was not appealed - see [6], [13], [14].

[110] Coronica and Commissioner of Taxation [2021] AATA 745, [323].

[111] Coronica and Commissioner of Taxation [2021] AATA 745, [297], [303]-[310]; [323], [324]; Coronica and Commissioner of Taxation [2024] AATA 2592 [90], [97], [100], [101], [102], [105], [106], [112].

[112] Coronica and Commissioner of Taxation [2021] AATA 745, [318]-[328].

[113] Coronica and Commissioner of Taxation [2021] AATA 745, [324]. Coronica and Commissioner of Taxation [2024] AATA 2592 [102].

[114] That is, those matters were relevant and fundamental to the conclusions reached in the 2021 Tribunal Decision and the 2024 Tribunal Decision - per Commonwealth of Australia v Sciacca (1988) 78 ALR 279, 282-283.

[115] For instance: Jablonka and Comcare [2025] ARTA 2176; Re Quinn and Australian Postal Corporation (1992) 15 AAR 519.