Effective since 1 July 2014, SMSF trustees can be subject to a suite of penalties, if they fail to properly adhere to the super rules.
The explanatory memorandum that accompanies the new legislation, states that the new SMSF penalties, taking effect from 1 July 2014 will enable the ATO to “give directions and impose administrative penalties for contraventions of the SIS Act [and] will provide the Regulator with additional tools, both educational and punitive, in conjunction with… existing powers.”
One of the most significant changes to be made is that since 1 July 2014, if the ATO imposes financial penalties on you as SMSF trustee, you cannot pay your fine from SMSF assets. You must pay the fine from your personal assets. For example, if a new SMSF trustee fails to sign the SMSF trustee declaration within 21 days of becoming a trustee, then he or she could be fined $1,700.
You can read more detail about penalties, and the size of the financial penalties, later in the article.
Financial penalties may be a softer option
Although the size of some of the financial penalties that are now possible may surprise you, these penalties are a better option than losing half of your SMSF assets via penalty tax, which until 30 June 2014 was about the only ‘big stick’ financial option available to the ATO. Note the regulator also can currently disqualify you as an SMSF trustee, and force you to fix a breach, and even take you to court to impose civil or criminal penalties. The ATO can continue to impose these more severe penalties but is now more likely to impose financial penalties when trustees breach the super laws.
Until 30 June 2014, the options for the ATO to punish misbehaving SMSF trustees were costly and time-consuming and the consequences for the SMSF trustee involved are often more serious than the breach the SMSF trustee is being punished for. As a result, the ATO has rarely imposed penalties on misbehaving SMSF trustees.
Since 1 July 2014, the new ATO powers to give directions and impose administrative penalties means that the ATO can punish SMSF trustees without the prospect of the trustees losing half of their retirement savings in penalties. You may even be ordered to go back to school, at your own cost!
Get serious about SMSF compliance
As a SMSF trustee, you will need to ensure that your super fund complies with the super rules, and that you have systems in place to monitor whether your fund is meeting reporting deadlines, administration requirements and other super rules.
The rest of this article outlines the recent main changes (such as new financial penalties) to the SMSF rules including:
- SMSF changes that took effect from 1 July 2014
- SMSF changes that took effect from 1 July 2013
- SMSF changes that took effect before July 2013
- Other related SMSF changes
SMSF changes that took effect from 1 July 2014
The following SMSF changes were originally intended to come into effect from 1 July 2013, but relevant legislation was not passed in the last sitting of Parliament before the election. The Liberal government has since passed legislation and the following changes came into effect on 1 July 2014:
- New administrative penalties. Since 1 July 2014, the ATO has the power to impose a new list of administrative penalties. Penalties range from 5 penalty units up to 60 penalty units. Each penalty unit currently equates to $170. For example, if a SMSF trustee fails to sign a SMSF trustee declaration, he or she could be fined 10 penalty units, that is $1700. If the trustees of a 2-member fund fail to prepare financial statements for the fund for the 2014/2015 year, this means the 2 trustees can be fined $1700 each. The maximum administrative penalty for a single breach is $10,200, and such a fine would apply where, for example, a SMSF trustee breached the borrowing rules, or the in-house asset rules. The full list of penalties are set out in Schedule 2 of the Tax and Superannuation Laws Amendment (2014 Measures No 1) Act.
- Power to force rectification. The ATO will have the power to force you to rectify specific contraventions. According to the explanatory memorandum accompanying the legislation, the ATO can give a ‘rectification direction’ to an SMSF trustee that “will require a person to undertake specified action to rectify the contravention within a specified time frame and provide the Regulator with evidence of the person’s compliance with direction.”
- Mandatory trustee education. If you’re a naughty SMSF trustee in the eyes of the ATO, you can be forced to attend mandatory trustee education, when the ATO gives you an ‘education direction’. The ATO can give an ‘education direction’ that “will require a person to undertake a specified course of education within a specified time frame and provide the Regulator with evidence of completion of the course.” You will also be required to sign, or re-sign the SMSF trustee declaration to confirm that you understand your obligations and duties as a trustee.
- Approved courses. If you are issued with an SMSF trustee education direction, you must attend a course that the ATO deems to be ‘approved courses’ for the purposes of the education direction.
Criminal and civil sanctions for early access promoters. Since April 2014, the ATO can impose criminal and civil sanctions on promoters of illegal early access super schemes.
NOTE: Taxation of illegal access of super money not going ahead. Amounts illegally accessed from a SMSF were to be taxed at the superannuation non-complying tax rate (49%).Originally intended to take effect 1 July 2013, but the Liberal government is not proceeding with this measure.
SMSF changes that took effect from 1 July 2013
As a trustee of your self-managed super fund, you need to be aware of the following changes to the SMSF rules that took effect from 1 July 2013:
- SMSF supervisory levy. Another increase in the SMSF supervisory levy paid to ATO from the 2013/2013 year, taking the levy to $259. You can also expect to pay the levy earlier than in previous years. For more information see SuperGuide articles, ATO levy hike for SMSFs and Another SMSF whack! ATO levy jumps to $259).
- SMSF auditors must be registered. Since 1 July 2013, SMSF trustees must confirm that the SMSF auditor appointed to audit the SMSF is registered with ASIC. SMSF trustees can confirm registration status by ensuring the auditor has a SMSF auditor number (SAN), and checking the ASIC register using ASIC’s online service ASIC Connect. The SAN needs to be included in SMSF annual returns from 1 July 2013. Note that SMSF auditors must be registered with ASIC by 30 June 2013, to be able to conduct SMSF audits from 1 July 2013. At the very least, any prospective SMSF auditors must have applied to ASIC by 30 June 2013, to be eligible for any transitional arrangements.
- Related party transactions. The ban on off-market share transfers is not going head. The proposed change was, that from 1 July 2013, purchases and disposals of assets between related parties of a SMSF must be conducted via an underlying market for that asset type. If an underlying market did not exist, then the transaction must be supported by an independent valuation. The Liberal government has confirmed that off-market share transfers are here to stay for SMSFs. For background information on this rule see SuperGuide article SMSF alert: Off-market share transfers get green light.
SMSF changes, effective from 1 July 2012
You also need to be aware of important changes to SMSF rules that took effect from 1 July 2012 (2012/2013 year), which include the following requirements:
- Review investment strategy regularly. You must review your super fund’s investment strategy regularly to ensure that it still meets the needs and objectives of your fund members. According to the ATO, proof of a review may involve documenting any review decisions in the minutes of trustee meetings held during the year.
- Consider the merits of life insurance. You must consider the merits of life insurance for each SMSF member, although taking out life insurance is optional.
- Value your SMSF assets at market value. You must value the SMSF’s assets at market value when preparing financial accounts and statements from the 2012/2013 year. The ATO has produced valuation guidelines for SMSF trustees and their advisers. Click on this link to access the guidelines.
- Keep personal assets from SMSF assets or get fined. You have always been required to keep your personal assets separate from your SMSF’s assets, but now this requirement is an operating standard. This change to the legal status of this requirement means that you can now be hit with a fine of up to $11,000 if you break this rule.
Other related changes to the SMSF rules include:
- Collectibles. Since 1 July 2011, investment in new collectibles subject to stricter rules, in particular storage and insurance. Existing collectibles must comply with new rules by 1 July 2016. For more information see SuperGuide article SMSF investment: Stricter rules in place for artwork and other collectibles.
- Super pension earnings remain tax-exempt on death of fund member. Pension earnings remain tax-free after the death of the pension recipient, even when there is no reversionary beneficiary. This announcement partly neutralises an ATO draft ruling released in July 2011 (see SuperGuide article, Confirmed! Pension earnings remain tax-free after death).