Precedent in SIS Act SMSF prosecution

The Australian Securities and Investments Commission (ASIC) together with the Australian Taxation Office has broken new ground by successfully pursuing legal action against a self-managed superannuation fund trustee under the Superannuation Industry (Supervision) Act (SIS Act).

A Sydney man, Atan Ona Kassongo, pleaded guilty to the charges brought by the regulator and pursued by the Director of Public Prosecutions. The SIS Act is generally used with respect to larger superannuation fund entities.

ASIC said that it had pursued the action against Kassongo on the basis that he had allegedly dishonestly failed to ensure that a self managed fund known as the Kassongo Superannuation Fund (KSF) was maintained in accordance with the sole purpose test.

ASIC alleged that the preserved superannuation benefits of 192 superannuates totalling $4,055,043 were deposited into the bank accounts of the fund.

It was alleged that these funds were rolled over from 56 complying superannuation funds and that Kassongo then used KSF to obtain early access to these benefits by withdrawing and distributing the funds to the superannuants and agents engaged by him to assist in the early release scheme.

It said that Kassongo had retained over $600,000 for himself by way of commission.

ASIC in January initiated civil proceedings against Kassongo following allegations he was involved in the operation of an unlicensed financial services business offering people early access to their superannuation funds.