ATO ID 2003/872: Reconsideration of a reviewable decision
Date of decision: 22 September 2003
Year of income: Year ended 30 June 2003
Business line: Superannuation

Issue
Can the Regulator make a decision with respect to a 'reviewable decision' under section 344 of the Superannuation Industry (Supervision) Act 1993 (SISA) once the sixty-day period allowed to review the decision by subsection 344(5) of the SISA has lapsed?

Decision
No, the Regulator cannot make a decision with respect to a 'reviewable decision' under section 344 of the SISA once the sixty day period allowed to review the decision by subsection 344(5) of the SISA has lapsed.

Facts
The trustee requested that the Regulator reconsider a reviewable decision pursuant to subsection 344(1) of the SISA. The Regulator did not respond to the request for a review within the sixty-day period allowed by subsection 344(5) of the SISA.

Reasons for decision
Summary: Subsection 344(1) of the SISA allows a person who is dissatisfied with a decision of the Regulator to request a review of the decision. Subsection 344(1) of the SISA states: 'A person who is affected by a reviewable decision of the Regulator may, if dissatisfied with the decision, request the Regulator to reconsider the decision.' For the purposes of subsection 344(1) of the SISA the Regulator includes the Commissioner of Taxation. The term 'reviewable decision' is defined in subsection 10(1) of the SISA. Subsection 344(5) of the SISA provides that where the Regulator does not confirm, vary or revoke a decision within sixty days of receiving a request for a review, the Regulator is taken to have confirmed the original decision. The Regulator has no power to extend the period for reviewing a decision beyond the sixty-day period. Under subsection 344(8) of the SISA, a person affected by the Regulator's decision, including a decision arising as a result of the application of subsection 344(5) of the SISA, may apply to the Administrative Review Tribunal (ART) for a review of that decision. The time for applying to the ART commences on the date the decision is made and ends on the twenty-eighth day after the date of the decision as per subsection 344(9) of the SISA (now repealed). Former subsection 344(9) has been replaced by section 18 of the Administrative Review Tribunal Act 2024 and rule 5 of the Administrative Review Tribunal Rules 2024 .

Legislative references: Superannuation Industry (Supervision) Act 1993 Subsection 10(1) Section 344 Subsection 344(1) Subsection 344(5)
Subject references: SMSF trustee