ATO updates guidance on SMSF voluntary disclosure

The ATO’s SMSF early engagement and voluntary disclosure service allows SMSF trustees to disclose regulatory contraventions that remain unrectified to the ATO.

Where trustees voluntarily disclose unrectified contraventions before the ATO starts an audit, the Tax Office will take their disclosure into account in determining what other actions need to be taken.

As previously stated on its website, the ATO said trustees should not use this service if they have already received a notification of an ATO audit or review in relation to the contravention.

In its updated guidance, the ATO also told trustees not to use the service if they are reporting a contravention that involves another trustee (a whistleblower disclosure) and they want to keep their identity confidential.

“Instead you should use our making a tip-off service to report the misconduct,” the ATO advised.

Where trustees are unsure whether there has been a contravention of the SIS Act or regulations or the trustee and their SMSF professional don’t agree there has been a contravention, they should apply for SMSF specific advice first, the ATO stated.

“SMSF specific advice is a written explanation of our view of how the super laws may apply to your SMSF in relation to a specific transaction or arrangement,” it explained.

“For example, you can apply for advice in relation to the investment restrictions, or rules governing in specie contributions/payments and benefit payments. We can confirm if there has been a contravention as part of this advice.”

The ATO said SMSF specific advice provides SMSF trustees with more certainty about the contravention and enables them to formulate an appropriate rectification plan for inclusion in your voluntary disclosure.

Where trustees plan to use the SMSF early engagement and voluntary service, the ATO said they should develop a plan to rectify the contravention as soon as possible and submit it with their SMSF regulatory contravention disclosure form.