What is SMSF specific advice?
SMSF specific advice is a written explanation of our view of how super laws may apply to your SMSF for a specific transaction or arrangement. 'Superannuation laws' about SMSF specific advice are based on:
- the Superannuation Industry (Supervision) Act 1993 (SISA)
- Superannuation Industry (Supervision) Regulations 1994 (SISR).
If you rely on SMSF specific advice you have received (that is, you apply the SMSF specific advice to your SMSF's affairs), we must administer the law in the way set out in the advice. Unless the advice is incorrect.
While similar in form to a private ruling, SMSF specific advice is not legally binding and does not have the same review rights as a private ruling.
It will provide you with certainty on applying super laws to your specific circumstances. For example, you will have some protection if you acted in good faith and followed the advice you were given, even if the advice turns out to be incorrect.
See also:
- Refer to PS LA 2009/5 for more information about our advice and guidance in relation to SMSFs.
Scheme
We use 'scheme' as a general term in taxation and super matters on this site and in the application forms. A scheme can be any agreement, arrangement, understanding, plan, proposal, action, course of action, course of conduct, promise or undertaking, whether express or implied and whether enforceable, or intended to be enforceable, by legal proceedings.
See also
- Refer to PS LA 2009/5 for more information about a scheme.
Who does SMSF specific advice apply to?
The Commissioner usually provides SMSF specific advice in response to an application by, or on behalf of, an SMSF. Each advice is specific to that SMSF and cannot be relied on by another entity or SMSF.
As the Commissioner of Taxation provides SMSF specific advice as part of his role as the regulator of SMSFs, SMSF specific advice has no application to entities other than SMSFs and former SMSFs that are regulated by the Commissioner. 'Former SMSFs' means super funds that have ceased being SMSFs for the purposes of the SISA and the trustee of the fund is not a registrable super entity licensee.
When should you consider applying for SMSF specific advice?
Typically, you would apply for SMSF specific advice when you want to be certain about how a super law applies to your SMSF's particular circumstances.
In many cases, you may be satisfied by the information and guidance that are available through any of the main information services provided by the ATO. These include:
- SMSF rulings and determinations
- ATO booklets and website content
- asking us to provide general written guidance.
Written guidance provides general assistance to help you understand your obligations and duties, usually in situations where you have enquired about the broad operation of the law and have not provided full details of your specific circumstances.
Written guidance often provides step-by-step guidance but is unlikely to cover all possibilities and does not address an SMSF's specific circumstances.
If you cannot find the information you need in ATO publications, you can write asking us to provide general written guidance or contact us for assistance:
- for super enquiries, phone 13 10 20
- for account management, phone 13 11 42
- for tax agents, phone 13 72 86 and select the relevant fast key code
If none of these services is able to give you the answers you need, you should apply for SMSF specific advice using the relevant form.
What matters can SMSF specific advice cover?
SMSF specific advice sets out the Commissioner's opinion about how superannuation laws apply in relation to a transaction or arrangement, including the following:
- investment rules, including
- those relating to an investment by a fund in a company or trust
- acquisition of assets from related parties
- borrowing or charges
- in-house assets
- business real property
- in-specie contributions or payments
- payment of benefits under a condition of release.
However, SMSF specific advice cannot be provided where the query relates to:
- the complying status of your SMSF
- trustee covenants as set out in subsection 52(2) of the SISA
- the actual exercise of a discretionary power
- the residency status of your SMSF (you can apply for a private ruling on this issue as it is a taxation issue).
SMSF specific advice cannot be provided if your fund is not an SMSF or a former SMSF.
For more information about SMSF specific advice, refer to Law Administration Practice Statement PS LA 2009/5 Provision of advice and guidance by the ATO in relation to the application of the Superannuation Industry (Supervision) Act 1993 and the Superannuation Industry (Supervision) Regulations 1994 to Self Managed Superannuation Funds
Who can apply for SMSF specific advice?
You, as trustee, can apply for SMSF specific advice for your own SMSF.
Alternatively, someone else can apply on your behalf. For example, a tax agent, approved auditor or a legal personal representative can apply if you give them written authority to do so. If you give someone written authority to apply for SMSF specific advice on your behalf, we refer to them as your 'agent', even if they are not a tax agent.
A trustee of an SMSF can request SMSF specific advice on behalf of their SMSF. This advice applies to the members of the SMSF, and to any trustee that replaces the applicant trustee, for as long as the advice remains current.
When we may decline to provide SMSF specific advice
We may decline to provide SMSF specific advice in certain circumstances:
- if we are considering, or have already considered, this issue for you - for example, in an ATO audit relating to the particular question
- if we ask you to provide information we need and you do not provide it within a reasonable time
- if the Commissioner considers that making the SMSF specific advice would prejudice or unduly restrict the administration of the law
- if the Commissioner considers that
- your application is frivolous or vexatious
- you are not seriously contemplating the arrangement you describe, or providing the advice would not have any practical consequences (for example, if the period for making the proposed investment has expired)
- if the Commissioner chooses to exercise a power available under the law, rather than provide advice on how that power would be exercised
- if the Commissioner considers that the correctness of the SMSF specific advice depends on certain assumptions, and chooses not to provide SMSF specific advice subject to those assumptions.
Relying on SMSF specific advice
Though SMSF specific advice is not binding, it will provide certainty to your SMSF on the application of the SISA and SISR in relation to the arrangement or questions raised in your SMSF specific advice request.
If we later take the view that the law applies less favourably to your SMSF than the SMSF specific advice indicated, the fact that you (as trustee of your SMSF) acted in accordance with that SMSF specific advice would be a relevant factor in your favour in our decision regarding what compliance action, if any, is to be taken in response to a breach of that law.
As such, it is important that you make a full and true disclosure of all the relevant facts in relation to the arrangement on which the SMSF specific advice is sought. SMSF specific advice will not be applicable where relevant facts were not fully disclosed.
General advice or help
You can get general advice by phoning or visiting the ATO, and through a wide range of our publications.
If you need more information about applying for SMSF specific advice:
- for super enquiries, phone 13 10 20
- for tax agents, phone 13 72 86 and select the relevant fast key code.
If you do not speak English well and need help from the ATO, phone the Translating and Interpreting Service on 13 14 50.
If you are deaf, or have a hearing or speech impairment, phone the ATO through the National Relay Service (NRS) on the numbers listed below:
- TTY users, phone 13 36 77 and ask for the ATO number you need
- Speak and Listen (speech-to-speech relay) users, phone 1300 555 727 and ask for the ATO number you need
- internet relay users, connect to the NRS at relayservice.com.auExternal Link and ask for the ATO number you need.