The ATO has specifically stated it will not be looking to provide any guidance for practitioners with regard to the interaction and delineation between illegal early access of superannuation benefits and loans made from an SMSF to its members.
“We’re not looking to issue guidance to distinguish between [illegal early access and loans to members]. My message is neither of them are okay. They’re both a breach [of the superannuation legislation],” ATO superannuation and employer obligations deputy commissioner Emma Rosenzweig told delegates during a session at the SMSF Association National Conference 2025 held in Melbourne recently.
“So no, we’re not looking at guidance to distinguish between them; we’re really advising people that both are a breach of the payment standards and so shouldn’t be encouraged.”
Rosenzweig also took the opportunity to update advisers and accountants on the status of a couple of draft publications, being Practice Statement Law Administration 2021/D3 and Draft Taxation Determination 2021/D6, which both deal with the discretionary powers of the regulator in situations where a member receives a superannuation benefit in breach of legislative requirements.
According to Rosenzweig, the finalisation of these draft instruments has not come to fruition yet due to ATO having to prioritise other matters.
“We definitely want to move to finalise those [products]. We have to prioritise the work we do in all our guidance products [and there are many of these],” she explained.
“One of the things we’ve tried to do is work with [the SMSF Association] and a number of other bodies to really help us prioritise what advice needs to go out first.
“We know NALI (non-arms-length income) has been a very hot topic and we’ve needed to put effort into that [and] the legacy pensions work [has been the same].
“So yes, we do want to finalise those [draft products], it’s just been a matter of us prioritising some other things.”
