What are the penalties for SMSF non-compliance?

Let’s look at each of these in detail.

Educational directions

SMSF trustees who have overseen the non-compliance of their fund can be directed by the ATO to undertake an online educational course to reduce their risk of future non-compliance. These courses must be completed through an approved provider within a specified timeframe.

Trustees must provide the ATO with evidence they have completed the course within 21 days. They must also re-sign their trustee declaration to indicate that they understand their legal obligations.

Failing to comply with an educational direction incurs a fine of five penalty units, currently equal to $1,110 (see table below).

Enforceable undertakings

SMSF trustees can potentially rectify non-compliance via an enforceable undertaking. This is a written commitment by trustees to:

• Stop the non-compliant behaviour
• Take action to rectify the fund’s non-compliance within a designated timeframe
• Explain how and when they will report that their fund’s non-compliance has been rectified
• Implement strategies to prevent the non-compliant behaviour from happening again.

It’s up to the ATO to decide whether to accept the enforceable undertaking of trustees. Factors that the ATO considers include:

• The trustee’s compliance history
• The extent of the non-compliance (e.g. whether there are criminal consequences)
• Whether the non-compliance can be satisfactorily rectified, as well as when and how it will be done.

Rectification directions

The ATO can provide a specific written direction to SMSF trustees explaining action they need to take to rectify their non-compliance. This action must be taken within the timeframe specified by the ATO, and trustees must provide evidence once it’s been done.

Trustees who fail to comply with rectification directions may be disqualified and their fund exposed to significant tax penalties.

Administrative penalties

Individual trustees and corporate trustee directors are subject to financial penalties if they contravene any of the provisions of the Superannuation Industry (Supervision) Act 1993. Different types of breaches carry different penalties.

Penalties are assigned penalty units ranging from five to 60. Currently, each penalty unit incurs a fine of $222. So, a breach of five penalty units would mean a penalty of $1,110 and breach of 60 units $13,320.

Financial penalties must be paid from personal savings, not from the fund.

It’s also important to note that financial penalties for the same offence are more severe for SMSFs with an individual trustee structure and more than one member/trustee than those run by a corporate trustee. This is because the penalty is applied to each trustee individually, whereas under a corporate trustee structure, a single penalty is applied to the company involved. The directors of the company share the penalty.

This is best illustrated with an example. Let’s consider two SMSFs. The first has four members who are also the fund’s individual trustees. The second is set up with a corporate trustee and each of the four fund members are directors of the corporate trustee.

Now let’s assume that each SMSF fails to prepare its financial accounts and statements. This form of non-compliance attracts ten penalty units for a fine of $2,220. This fine will be applied to each of the individual trustees of the first super fund, so the breach effectively attracts a total fine of $8,880.

However, the $2,220 fine will be applied to the second fund’s corporate trustee as a single entity, to be shared among the four directors. They will each be liable for just $555.

Issuing non-compliance notices

The ATO can issue a non-compliance notice for serious breaches of SMSF legislation. This has serious financial implications for fund members/trustees. Income of funds classified as being non-compliant is taxed at the highest marginal tax rate (45%), instead of at the concessional super rate of 15%.

This higher level of tax will be charged until the fund is wound up or classified as compliant.

Freezing the fund’s assets

Trustees (or investment managers) may be given a notice to freeze the assets of their SMSF if the ATO believes their conduct is adversely affecting the performance or compliance of the fund.

This effectively means the trustees can’t buy, sell or deal with the fund’s assets while the ATO deems them frozen.

Trustee disqualification

The ATO has the option to disqualify individuals from acting as individual or corporate SMSF trustees if they have been non-compliant. The ATO considers the seriousness of the non-compliance in deciding whether to impose this penalty.

It’s an offence to continue as an SMSF trustee if you’ve been disqualified.

Winding up the fund

The ATO can also allow a non-compliant SMSF fund to be wound up, with a rollover of its funds into a public super fund regulated by the Australian Prudential Regulation Authority (APRA).

Civil and criminal penalties

Serious breaches of super legislation can result in the ATO applying for civil or criminal penalties to be imposed on SMSF trustees.

Examples of serious breaches include:

• The SMSF not satisfying the sole purpose test. The ATO requires super funds to be maintained for the sole purpose of providing retirement benefits to their members (or to their dependants if a member dies before retiring)
• The SMSF lending its funds to its members/trustees
• The SMSF allowing its members to access funds prior to reaching their preservation age and satisfying a condition of release
• The SMSF not investing at ‘arm’s length’. An arm’s length investment is done on a commercial basis at market value. This ensures all assets in the fund are valued correctly.

Can SMSF penalties be disputed?

Any individual SMSF trustee (including corporate directors) have the right to have ATO decisions reviewed, including SMSF penalties. There are three options for resolving disputes before they reach the litigation stage:

1. Early assessment and resolution

Early assessment and resolution is ideal for less complex penalty disputes. It focuses on the trustees meeting with ATO case officers to further discuss the penalty imposed and the associated evidence of non-compliance.

2. In-house facilitation

This method is also ideal for less complex penalty disputes. It involves an impartial ATO facilitator meeting with the trustees/directors and relevant ATO case officers to identify and hopefully resolve any issues in dispute.

3. Alternative dispute resolution

This method is more appropriate for more complex penalty disputes. It typically involves mediation and conciliation conducted by an appropriate external practitioner to identify and hopefully resolve any disputed issues.

The ATO’s philosophy toward SMSF compliance and non-compliance

The assistant commissioner of the ATO outlined the ATO’s philosophy toward SMSF compliance and non-compliance in a 2016 address to the Tax Institute.

Here are some key extracts from that address.

Our philosophy is to deal with minor contraventions in a collaborative way to help trustees rectify them. Through initiatives such as our early engagement and voluntary disclosure service we seek to empower the individual to work with us to promote voluntary compliance.

In practical terms, what this means is that for less serious breaches, particularly if it is the first time, we accept enforceable undertakings, or issue education or rectification directions. However, for more serious, deliberate or persistent regulatory breaches we take firm action.

The most serious enforcement actions available to us are disqualifying trustees and making funds non-complying.

We disqualify trustees in relevant cases so that we can remove from the sector those individuals who ignore their obligations and responsibilities as trustees. We also increasingly use this power when examining the fitness of new entrants through our new-registrant integrity checks. These actions are critical to the integrity of the SMSF industry.

Considering there are nearly 600,000 SMSFs, the number of funds we make non-complying is relatively small. This reflects our approach of reserving this action for the most serious cases of non-compliance.

The assistant commissioner further clarified the ATO’s position on monitoring SMSF compliance in a speech to the Tax Institute in 2017. This speech was delivered just before significant changes to super legislation, including the reduction to the concessional (pre-tax) and non-concessional (after-tax) contributions caps as well as the introduction of the transfer balance cap.

Key extracts are as follows.

As is always the case when implementing legislative changes, there is significant interest in the ATO’s approach to monitoring and taking action on non-compliance with the super changes.

The first point to note is that while we take non-compliance seriously, our ‘prevention before correction’ approach reflects our preference to provide proactive help, educate and support to foster willing stakeholder participation and collaboration to promote voluntary compliance.

The various tools and support we are planning or have started to put in place are evidence of our preference that trustees and professionals understand the super changes and can comply.

However, as we all know, even the best of us can make mistakes. The ATO is fully committed to assisting those who have made mistakes to self-identify and, more importantly, self-rectify.

The SMSF Early Engagement and Voluntary Disclosure Service isn’t just there for longer-term historic issues. It is there for any situation where members or their professionals identify a failure in compliance and want to work with us to provide certainty about the resolution. You can access the online form for this service on our website.

With regards to the super changes, where clients work with us openly we’re unlikely to apply penalties and other sanctions unless there is no legislative discretion.

We recognise that these changes are significant, so mistakes will be made. We can only encourage trustees and professionals to approach us for advice and, where there is clear evidence of a willingness to comply or appropriately rectify errors, we’re likely to take a lenient view in terms of applying penalties or more serious outcomes, particularly in the initial phase after implementation.

We, the ATO, and you, as key professionals, should encourage trustees and your colleagues to get good guidance, come to the ATO for advice when they are unsure and engage with us openly when they’ve made mistakes.

While I’ve said our overall approach will be one of guidance, support and working collaboratively to address mistakes, there are behaviours that concern us, and we will take action as you would expect.

Voluntary reporting of non-compliance is encouraged

To help you monitor your fund’s compliance, the ATO has an ongoing SMSF compliance checklist. If you discover that your fund has not complied with the super rules, then the ATO encourages early voluntary disclosure.

The ATO’s SMSF early engagement and voluntary disclosure service is designed to help you get on the front foot. It allows SMSF trustees (or their auditors or any other professional involved with their fund such as tax agents, accountants or administrators) to voluntarily report any fund non-compliance issues that they become aware of. An SMSF regulatory contravention disclosure form is available from the ATO’s website.

This disclosure can include a proposed plan to rectify the non-compliance and prevent it from happening again. The ATO doesn’t audit funds if the non-compliance is resolved through voluntary disclosure.

Any voluntary disclosure is taken into account by the ATO when determining if a penalty will be imposed on the fund’s trustees and if so the type of penalty.

How to spot a dodgy retirement planning scheme

The ATO has ongoing concerns about illegal retirement planning schemes that target SMSF trustees. To combat this, it has developed the Super Scheme Smart program to educate taxpayers about how to avoid these illegal schemes. Examples of these schemes include:

• SMSFs and related party property development
• SMSF investments that provide members/trustees with present-day benefits, rather than satisfying the sole purpose test
• SMSF investment schemes that encourage SMSF members/trustees to illegally channel funds through their fund to avoid tax.

These types of investments and schemes are serious breaches of super legislation and so attract the most severe ATO penalties.

The bottom line

The ATO can impose a range of penalties on SMSF trustees who don’t set up and manage their funds to comply with super and tax legislation. These penalties vary depending on the seriousness of the non-compliance. The ATO generally prefers to assist SMSFs to fulfil their compliance obligations, but they are prepared to take punitive action for serious breaches. Super funds (including SMSFs) must be compliant to be eligible for tax concessions available under Australian superannuation law.

The information contained in this article is general in nature. It’s best to seek independent professional advice to ensure your SMSF’s ongoing compliance.