An industry specialist has reminded advisers and trustees the ATO early engagement and voluntary disclosure service cannot be used to determine whether an SMSF is actually in breach of any superannuation legislation or regulations.
“if you’re unsure of whether there is a regulatory contravention or not, [you won’t be] using this service to work out or to confirm whether there is a breach or not. That has to be worked out separately,” Accurium head of education Mark Ellem told attendees of a technical webinar held last week.
“[This is a service to be used] where you’re sure you’ve got a breach of the regulatory provisions of the SIS (Superannuation Industry (Supervision)) Act or the SIS Regulations [and the circumstance is] not under review by the ATO [or] hasn’t been reported by the auditor.”
Ellem pointed out in situations where there is uncertainty that a breach of the rules has occurred, other mechanisms are available to trustees allowing them to confirm their situation.
“If you’re unsure, or there might be a disagreement between trustees that there is a breach, or there might be a disagreement between the trustees and the accountant or the administrator as to whether there’s a breach, then [you should] consider applying to the ATO for SMSF-specific advice to confirm one way or another if there is a breach or not or obtaining specialist advice,” he said.
Further, he noted the regulator has made available a specific service for situations where a trustee or corporate trustee director is reporting a contravention that involves another trustee or director of the SMSF.
“[In other words] they’re dobbing in the other trustee or director for a breach that may have occurred. If that’s the case, the ATO suggests considering using its ‘making a tip off service’ to report the misconduct,” he said.
