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Self-managed super fund (SMSF) trustees may occasionally need specific advice around how some of the more complex or technical superannuation rules apply to a particular fund transaction or strategy.
When this happens, it’s important to understand what advice is available to SMSF trustees and how to get it when it’s needed.
ATO information and advice
The Australian Taxation Office (ATO) acts as the regulator, enforcer and tax collector for SMSFs.
In carrying out these roles, the ATO provides SMSF trustees with access to various advice channels, including publicly available information on their website and also through public rulings that cover specific topics or issues.
The regulator can also provide more ‘fund specific’ and relevant information and commentary through private rulings and through the SMSF specific information and advice service.
Each of these advice channels is covered in more detail below.
The ATO website
There is a wealth of information relating to SMSFs on the ATO website. Guidance is provided on issues, including:
- SMSF establishment procedures and requirements
- Contributions and rollovers
- Tax and how it applies specifically to SMSFs
- Administrative and reporting requirements
- Rules around paying out member benefits
- Investment rules, requirements and restrictions.
There are also a number of free, online tools and resources available on the ATO website for SMSF trustees.
Most of the information on the ATO website is generic and you will still need to consider how that information and guidance applies to your own personal circumstances.
You can view the SMSF specific information on the ATO website at ato.gov.au.
The SMSF helpline
SMSF trustees can contact the ATO for general advice and assistance by phoning the ATO SMSF help line on 13 10 20.
The ATO will only provide ‘general’ help around your obligations as an SMSF trustee and will often direct you to other resources for further information.
This service cannot be used for any financial or investment style advice.
SMSF public rulings
Over the years, the ATO has released a number of SMSF public rulings, each covering an issue relevant for SMSFs. These rulings go into great detail on how the superannuation rules and regulations apply to that specific issue.
SMSF public rulings tend to focus on some of the more frequently asked issues or problem areas. For example, there are specific rulings that cover:
- Business real property: SMSFR 2009/1
- Borrowing money in an SMSF: SMSFR 2009/2
- SMSF definition requirements: SMSFR 2010/2
- Acquiring assets from related parties: SMSFR 2010/1
- SMSFs and LRBAs: SMSFR 2012/1
You can search for these public rulings in the legal database area of the ATO website.
SMSF regulator bulletins
SMSF regulator bulletins are somewhat similar to the public rulings mentioned above. They are designed to provide a summary of the ATO’s concerns on certain issues, usually focussing on “new and emerging arrangements that pose potential risks to SMSF trustees and their members from a superannuation regulatory and/or income tax perspective.”
For example, the ATO has released regulator bulletins on the following issues:
- The use of ‘reserves’ by SMSFs: SMSFRB 2018/1
- SMSFs and property development: SMSFRB 2020/1
Again, you can search for and view these regulatory bulletins in the legal database area of the ATO website.
SMSF specific advice service
As a trustee of an SMSF, you can also seek a written explanation as to how the superannuation laws apply to a specific SMSF transaction or arrangement.
Advice can be sought on transactions that have already been carried out as well as proposed actions or transactions.
Obtaining SMSF specific advice from the ATO can provide you with certainty around how the laws will be applied to your circumstances. However, the ATO only provides such advice on certain issues, which include:
- SMSF investment rules: Investments in companies or unit trusts, acquiring assets from related parties, the SMSF borrowing rules, the in-house asset rules and specific business real property issues.
- Contribution rules including in-specie contributions and payments
- SMSFs paying member benefits under a condition of release.
If you ever find yourself needing to use the ATO SMSF specific advice service, you will first need to download the Request for self-managed superannuation fund specific advice form from the ATO website.
You will then need to complete the form and provide any relevant supporting information. The ATO will only provide specific advice where all relevant information has been provided.
Remember, not all areas of advice are covered by the ATO through this service. The ATO website states that they can and will not provide specific advice where the query relates to the:
- Complying status of an SMSF
- Trustee covenants
- Residency status of an SMSF (you can apply for a private ruling on this issue as it is a taxation issue).
ATO private rulings
Private rulings are binding advice covering how a particular tax law applies to you or the entity seeking the advice. The ATO states:
“A private ruling may deal with anything involved in the application of a relevant provision of the law.”
For instance, if you were thinking about moving overseas and wanted to know how the SMSF residency rules apply to your SMSF, you could seek a private ruling from the ATO.
ATO private rulings can’t be sought on other non-tax-related SMSF issues.
When applying for a private ruling, it’s worth considering doing so with the assistance of a tax or legal professional. They will have a better understanding of the process, particularly around the specific application forms that need to be completed and any supporting documentation you may need to provide.
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