ATO ID 2011/24 – Waiver of Disqualified Person Status for setting up a SMSF

This ATO ID considers what constitutes “serious dishonest conduct” and therefore what is sufficient for an individual who has been convicted of an offence to have that disqualified person status waived. This is relevant with respect to fund members who may be imprisoned. Section 126B(2)(a) of the SISA provides that serious dishonest conduct occurs where the penalty imposed is a term of imprisonment of at least 2 years.
The question was asked whether the 2 years applied to the actual term of imprisonment or the sentence imposed. The conclusion was that the 2 year period applies to the sentence imposed and considered appropriate for the crime, not necessarily the actual term of imprisonment