ATO Interpretative Decision
ATO ID 2005/104
Superannuation
Retirement income entities: keeping the personal assets of a trustee separate from the assets of a self managed superannuation fundFOI status: may be released
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This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Has a contravention of subsection 52(2) of the Superannuation Industry (Supervision) Act 1993 (SISA) occurred where the trustee of a self managed superannuation fund (SMSF) transfers money, other than as a contribution, from a personal bank account into a bank account held by the SMSF?
Decision
Yes. A contravention of subsection 52(2) of the SISA has occurred where the trustee of a SMSF transfers money from a personal bank account into a bank account held by the SMSF.
Facts
The trustee electronically transferred an amount from his personal bank account to the bank account for his SMSF.
The transfer was made in error.
The error occurred due to his selecting the incorrect account using a computer banking system.
The deposited amount is not a contribution to the fund.
The deposited amount was subsequently returned to the trustee's bank account.
Reasons for Decision
Section 52 of the SISA prescribes the covenants which are taken to be included in the governing rules of a regulated superannuation fund. In particular, paragraph 52(2)(d) of the SISA requires the trustees to keep the money and other assets of the entity separate from any personal money and assets of the trustees, a standard employer-sponsor, or an associate of a standard employer-sponsor, of the SMSF.
Where trustees' monies, other than contributions, are deposited in a SMSF bank account a contravention of paragraph 52(2)(d) occurs.
Date of decision: 18 January 2005
Legislative References:
Superannuation Industry (Supervision) Act 1993
section 52
ATO ID 2002/976
Keywords
ATO Business & Service Lines
Northbridge ATO
Retirement income entities
Self managed superannuation funds
SIS covenants
SMSF compliance test
SMSF trustee
SMSF trustee duties
Superannuation Business Line
ISSN: 1445-2782
| Date: | Version: | |
| You are here → | 18 January 2005 | Original statement |
| 31 March 2006 | Archived |