The NSW Administrative Decisions Tribunal (ADT) has dismissed an application by the Law Society of NSW calling for a solicitor to be struck off for allegedly delaying superannuation guarantee payments on behalf of her employees.
In 2005, the respondent solicitor had received default superannuation guarantee charge (SGC) assessments from the Tax Office for superannuation shortfalls of $43,197 and $49,539, respectively, in relation to 32 employees for the 2001 and 2002 years. She retained an accountant who gradually completed SGC statements and paid the shortfalls for the 2001 to 2007 years. During this period, the solicitor was also engaged in a dispute with the Commissioner in relation to income tax matters.
In dismissing the application to strike off the solicitor, the ADT rejected the allegation that the solicitor was guilty of “professional misconduct” under the Legal Profession Act 2004 (NSW) for any delay in paying the superannuation entitlements for her employees. The ADT accepted the solicitor’s argument that the Superannuation Guarantee (Administration) Act 1992 (SGAA) does not impose a legal obligation on her make superannuation contributions for her employees. On the contrary, the ADT accepted that the SGAA left an employer the right (albeit at considerable disadvantage) to elect not to make superannuation payments but instead accept the liability to pay the (non-deductible) superannuation guarantee charge (SGC) to the Commissioner. As there was no proof of a breach of a statutory, contractual or ethical obligation, the ADT said there could be no serious finding of professional misconduct (or even unsatisfactory professional conduct). The ADT also rejected any suggestion that the solicitor may have allegedly delayed making the superannuation payments in order to gain a personal advantage in respect of her income tax dispute.
(Council of the Law Society of NSW v Healey [2013] NSWADT 173, NSW Administrative Decisions Tribunal, Patten DP, Isenberg JM, Hayes NJM, 2 August 2013.)
[LTN 152, 8/8/13]