Each year an approved self-managed super fund (SMSF) auditor must audit your fund. The auditor is required to report certain regulatory contraventions to us via the Auditor/actuary contravention report.
When contraventions have occurred you should work with your appointed SMSF professionals including your SMSF auditor to rectify them as soon as possible.
However, we encourage you to voluntarily disclose regulatory contraventions that remain unrectified without waiting for your SMSF auditor to advise us.
You can do this at any time via our SMSF early engagement and voluntary disclosure service (the service). The service provides a single-entry point for SMSF trustees and professionals to engage early with us in relation to unrectified contraventions.
We expect that before you use the service, trustees will have already developed a plan to rectify the contravention as soon as possible. You should submit the plan with your SMSF regulatory contravention disclosure form.
If you voluntarily disclose unrectified contraventions before we start an audit, we take your disclosure into account in determining what other actions we need to take.
If you make a disclosure about contraventions that occurred in previous years, you must lodge any outstanding SMSF annual returns.
SMSF trustees and SMSF professionals (such as tax agents, accountants, financial planners, lawyers and fund administrators acting on behalf of SMSF trustees) can use our SMSF early engagement and voluntary disclosure service.
If an SMSF professional lodges the voluntary disclosure, the SMSF regulatory contravention disclosure form must be signed by at least one of the trustees for the fund.
In addition, if the SMSF professional is not registered with the ATO as an authorised contact for the fund, a written authorisation signed by the trustees to allow the ATO to liaise with the representative must also be provided.
The SMSF early engagement and voluntary disclosure service should be used when it's clear there has been a contravention of the Superannuation Industry (Supervision) Act 1993 (SIS Act) or regulations and it remains unrectified.
Before using this service, you should speak to an SMSF professional to receive guidance about rectifying the contravention so you have a rectification proposal to include with your voluntary disclosure.
Your SMSF auditor is still required to report regulatory contraventions via an Auditor/actuary contravention report (ACR). However, we will not commence an audit based on an ACR if the issue is attempting to be resolved through a voluntary disclosure, unless we receive additional information that requires further investigation.
You should not use this service if you have already received notification of an ATO audit or review in relation to the contravention. You should also not use this service if you are reporting a contravention that involved another trustee (a whistleblower disclosure) and you want your identity kept confidential. Instead you should use our making a tip-off- service to report the misconduct.
If you're unsure whether there has been a contravention of the SIS Act or Regulations, or you and your SMSF professional don't agree there has been a contravention, you should apply for SMSF specific advice first.
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. 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.
SMSF specific advice will provide you with more certainty about the contravention and enable you to formulate an appropriate rectification plan for inclusion in your voluntary disclosure.
You must complete the SMSF regulatory contravention disclosure form and provide us with all relevant facts, supporting documentation, a rectification proposal or proposed Enforceable undertaking and actively engage with us throughout the resolution process. If you do not complete the form, we will be unable to accept your disclosure.
The completed form and any relevant supporting documentation should be submitted to us using one of the following methods:
- If you're a tax agent submitting the voluntary disclosure on behalf of your client, you can use secure mail in Online Services for Tax Agents. Tax agents should ensure they attach the SMSF regulatory contravention disclosure form signed by the trustees of the fund to the email.
- If you're an SMSF trustee you can use secure mail in Online services for business, making sure your:
- topic is 'Superannuation'
- subject is 'SMSF Early engagement & voluntary disclosure'.
- Fax: 1300 139 024.
Australian Taxation Office
PO Box 3578
ALBURY NSW 2640
- Alternatively, both SMSF trustees and other SMSF Professionals can send an email to SMSFRegulatoryContraventionVoluntaryDisclosure@ato.gov.au. (Please note email is an unsecured channel.)
When you lodge your SMSF voluntary disclosure you will receive confirmation of receipt.
We may later contact you to request additional information if insufficient information has been provided.
We will assess your voluntary disclosure and depending on the facts and circumstances it may result in an ATO review to consider the undertaking or rectification proposal.
For more information, see our Early engagement and voluntary disclosure case studies.
What you can expect from us
SMSF trustees and professionals who engage with us and make a voluntary disclosure in accordance with this service can expect us to:
- engage with you and work with you and your SMSF professionals with the intent to agree on a proposed plan for rectifying the disclosed contravention
- take your voluntary disclosure and your willingness to engage with us at an early stage and throughout the review process into account when
- determining the level of enforcement action that is required
- making a decision about the remission of any administrative penalties that may be applicable.
What we expect from you
We expect you to:
- engage with your SMSF professional to devise a proposed plan of action to rectify the contravention
- provide the proposed plan for rectifying the contravention and relevant supporting documentation with your voluntary disclosure
- provide information that demonstrates that measures have been put in place to mitigate the risk of similar contraventions occurring in the future
- actively engage with us throughout the review process
- bring any outstanding SMSF annual return lodgments immediately up to date
- make any necessary amendments to SMSF annual returns and/or individual members’ income tax and pay any outstanding income tax liabilities that may arise.