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ATO Interpretative Decision

ATO ID 2005/97

Superannuation

Retirement income entities: failure of auditor to report within specified period
FOI status: may be released

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CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 an auditor contravened subsection 113(4) of the Superannuation Industry (Supervision) Act 1993 (SISA) by failing to provide an audit report to the trustee of a Self Managed Superannuation Fund (SMSF) within the period specified in paragraph 8.03(a) of the Superannuation Industry (Supervision) Regulations (SISR).

Decision

Yes. The auditor has contravened subsection 113(4) of the SISA by failing to provide the audit report within the period specified in paragraph 8.03(a) of the Superannuation Industry (Supervision) Regulations (SISR).

Facts

The auditor has provided an audit report to the trustee, later than the day before the day prescribed by section 36A of the SISA for lodgement of the fund's annual return.

Reasons for Decision

Section 113 of the SISA provides that for each year of income, the trustee of a superannuation entity must appoint an approved auditor to give the trustee a report, in the approved form, on the operations of the entity for that year.

Under subsection 113(1) of the SISA the appointment must be made within whichever of the periods in the regulations that apply to the entity.

Under subsection 113(4) of the SISA, the auditor, once appointed, must give the report to the trustee within the specified period after the end of the year of income. The period for a SMSF is specified in paragraph 8.03(a) of the SISR, which requires the report to be provided to the trustee, within the period ending on the day before the day, prescribed in section 36A of the SISA, to which the year of income relates.

Accordingly the auditor has contravened subsection 113(4) of the SISA by failing to provide the audit report within the period required by the SISR.

Date of decision:  1 April 2005

Year of income:  30 June 2002

Legislative References:
Superannuation Industry (Supervision) Act 1993
   section 113
   subsection 113(1)
   subsection 113(4)
   section 36A

Superannuation Industry (Supervision) Regulations 1994
   paragraph 8.03(a)

Related ATO Interpretative Decisions
ATO ID 2002/553

Keywords
Self managed superannuation funds
SMSF audit of funds
SMSF audit report on compliance

Business Line:  Superannuation

Date of publication:  8 April 2005

ISSN: 1445-2782

history
  Date: Version:
You are here → 1 April 2005 Original statement
  14 May 2010 Archived

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