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Courses of action when your client breaches the rules - February 2016

By Alice Stubbersfield
February 24 2016
4 minute read

Breaching the SIS Act happens more often than you would think. Most instances are honest mistakes or just a case of trustees not understanding their obligations. The question is: how and when do we fix it?

Given the ATO has acknowledged it will be focusing its compliance activities on reported unrectified breaches, it is in the fund's best interest to rectify the contravention and provide the rectification details to the auditor in time to be included on the audit contravention report (ACR) when it is lodged with the ATO.

Timing can be really important in achieving this goal since both trustees and auditors have imposed time limits around engagement and reporting of the audit results. Trustees are required to engage the auditor at least 45 days before the annual return is due for lodgement. The auditor is then required to complete the audit within 28 days of receiving all the information from the trustee. Then if there is a reportable contravention the auditor must lodge the ACR within 28 days of the audit being completed.

I personally encourage and allow trustees the full 28 days to arrange rectifications and communicate the details to me before the lodgement due date for the ACR. It’s not a big leap, however, to recognise the earlier the rectification process commences the more likely it will be for the auditor to be able to report breaches as fully rectified, and 28 days isn’t always enough time. A common lengthy rectification is where the fund buys a property but the title is registered incorrectly, resulting in a breach of SIS because it is not in the name of the fund trustee. There are considerations to stamp duty exemptions, solicitors and the titles office to be taken into account and generally it will take more than 28 days to rectify.

So if your clients find they have breached SIS, encourage them to contact you as soon as possible to find out what rectification will be required. Make sure you involve the auditor to guide the rectification plan before implementation. In very serious situations, rectifications may need to be discussed with the ATO generally via an enforceable undertaking process.

The next question is: how do we fix the breach? This will depend on the situation and the seriousness of the contravention. If the breach is determined to be immaterial by your auditor, there may be nothing further required. The auditor would normally communicate the issue to the trustee in the form of a management letter. For example, if the trustee failed to lodge the annual tax return by the due date for the fund, a management point may be communicated.

The next level of audit breach is where the audit report part A or part B is qualified, but no ACR is received. If it is a part B qualification it is required to be communicated to the ATO via a question in the annual tax return, but since it doesn’t meet the ACR reporting requirements there is no ACR required to be lodged. Rectifications may be required in this situation but again, they tend not to be too onerous. For example, if the fund bank account was overdrawn during the year and the cause doesn’t meet one of the borrowing exceptions, but the account was then brought back into funds 14 days later when a $4,000 deposit was received, the amount was significant enough to be a breach of the SIS but not significant enough to require reporting to the ATO.

Care should be taken, however, not to repeat the breach after being made aware of the issue because this can lead to a reportable contravention in the following year for repeat behaviour – regardless of the amount and the level of materiality.

Then we get to the contraventions that require an ACR to be lodged with the ATO. The requirement to report is tested as follows:

1. If the fund is less than 15 months old – report all contraventions over $2,000
2. If the fund fails the SMSF definition – report
3. If the trustee is repeating a previously advised specified breach – report
4. If a breach from a previous year is still not rectified – report
5. If the trustee fails to meet a statutory time limit by 14 days or more – report
6. If the contravention is greater than five per cent of the total asset value – report
7. If the contravention value is greater than $30,000 – report

The first test is to ensure new trustees receive assistance and education early in the process. However, it does result in the reporting of minor and rectified contraventions, such as an investment being in the wrong name that is rectified before year end.

The ACRs received by the ATO are then determined to be low, medium or high risk depending on the situation. A low-risk ACR would be one that was rectified and usually will receive a letter instructing trustees not to repeat the contravention.

If the ACR is determined to be a medium risk, the trustee will receive a call from the ATO within two weeks of the ACR being lodged. The best approach for all trustees receiving an ACR is to ensure your clients are ready to talk to the ATO. They need to demonstrate an understanding of the contravention and the rectification undertaken or planned. If the matter has been rectified and the ATO is satisfied with the outcome of the call, no further action will result.

However, failure by the trustee to discuss the contravention with the ATO when called will result in the ACR being determined to be a higher risk and usually a full audit will follow, together with administrative penalties. Any administrative penalties applied are based on the ATO’s findings during the audit and not on the reported contraventions by the auditor. The ATO has also indicated it doesn’t have discretion in applying the penalties but trustees can request remission of penalties if circumstances exist for consideration.

Alice Stubbersfield, director, Adept Super