Compliance changes for SMSF Trustees
When it comes to retirement funding, almost one million Australians have established Self-Managed Super Funds (SMSFs) to take more control over this crucial stage of their lives. However, SMSF trustees take note – since 1 July 2014 your freedom has been curbed. Take heart, it is in your and your fellow members’ best interests.
The basis of all superannuation law is that every super fund must meet the “Sole Purpose Test” – it exists solely to fund retirement (or to pass to dependents if the member dies).
In the past, the Australian Tax Office (ATO) had limited powers when addressing breaches of the SMSF regulations. Penalties were either overly severe resulting in making a fund non-compliant (which meant all income earned was taxed at the highest marginal rate) but if the problem was rectified quickly, there would be no penalty levied. This didn’t seem to deliver a strong enough deterrent to errant SMSF trustees, so a new penalty regime was needed.
It all changed on 1 July 2014.
The new rules
SMSF trustees whose funds are not fully compliant will incur the financial wrath of the ATO as follows:
A rectification direction requires the trustee to rectify a breach within a specified timeframe and provide evidence to the ATO of completion in accordance with SMSF regulation.
An education direction requires the trustee to undertake a specific course on SMSF compliance to ensure he/she has a better understanding of a trustee’s obligations and responsibilities and to prevent future breaches. This course must be completed with a specified timeframe and proof of completion provided to the ATO. Failure to comply will result in an $850 fine.
An administrative penalty applies to those breaches that have previously gone unpunished. Trustees will be fined based on the following breaches of the Act. It is important to note that these fines cannot be paid from the SMSF – they come directly out of the trustee’s own pocket.
|Section & Rule||Administrative Penalty|
|s.35B – failure to prepare Financial Statements||$1,700|
|s.65 – prohibition on lending or providing financial assistance to members and their relatives||$10,200|
|s.67 – prohibition on super fund borrowing, except as permitted, eg. limited recourse borrowing arrangement||$10,200|
|s.84 – contravention of In-House Asset rules||$10,200|
|s.103(1) & (2) – failing to keep trustee minutes for at least 10 years||$1,700|
|s.103(2A) – failure to maintain a s.71E election, where applicable, in relation to a fund with an investment in a pre-11/8/99 related unit trust||$1,700|
|s.104 – failing to keep records of change of trustees for at least 10 years||$1,700|
|s.104A – failing to sign Trustee Declaration within 21 days of appointment and keep for at least 10 years||$1,700|
|s.105 – failing to keep member reports for 10 years||$1,700|
|s.106 – failing to notify ATO of an event that has significant adverse effect on the fund’s financial position||$10,200|
|s.106A – failing to notify ATO of change of status of SMSF, eg. fund ceasing to be a SMSF||$3,400|
|s.124 – where an Investment Manager is appointed, failing to make the appointment in writing||$850|
|s.254(1) – Failing to provide the Regulator with information on the approved form within the prescribed time upon establishment of the fund||$850|
|s.347A(5) – Failing to complete a form with requested information provided by the Regulator as part of the Regulator’s Statistical Program||$850|
The ATO still has the power to make a fund non-compliant, disqualify trustees, or instigate civil or criminal charges for more severe breaches.
Freedom always comes at some cost but given that these rules are put in place to protect your investments to fund your retirement, adhering to them will ensure you and your family are the ones who ultimately benefit.