Speaking to SMSF Adviser, DBA Lawyers director Daniel Butler said that overall, the exposure draft legislation covering reform of the superannuation excess non-concessional contributions tax represents a positive step for the SMSF sector.
However, he noted there is just seven days for trustees to act on a release authority.
“I think that’s going to be onerous on an SMSF,” Mr Butler said. “What if you want to dispute it? What if there is a difference in your numbers compared to the ATO? What if you don’t have assets that are readily [available?]”
Mr Butler said he would also like to see some “loosening up” of the special consideration concessions, even though they are less likely to be utilised under the new regime.
“If you get stung, you can apply for special circumstances but that discretion is very tight,” Mr Butler said.
“At the moment, there’s no discretion, for instance, for honest mistakes. So you make an honest mistake? Bad luck.”
Although this would rarely apply to SMSFs, Mr Butler said it is worth noting this new entitlement will not be available to those with defined benefit funds.
“When you think about it across the board, particularly for public sector members, they would need to be mindful that if they do exceed their non-concessional contribution limit, they don’t have a right to get the payment out to alleviate their excess non-concessional contribution tax.”
Trustees should also review their deed when the legislation is introduced to reflect the changes and to ensure that it does have the flexibility to do a release, Mr Butler added.
“The deed does need that flexibility. The law does give the flexibility, but the deed also has to give you the flexibility,” he said.
Thanks for the analysis.
Given that the Exposure Draft does not mention any penalties, what are the ramifications for a SMSF where the trustee takes >7 days to release the funds? Is there an implied penalty mentioned somewhere else in the Act if the trustee does not release the funds within the required timeframe?
Also my reading of the Exposure Draft implies that a defined benefit fund does not need to compulsorily comply with a release authority, but can do so if it wishes. (para 1.39 EM).