What is the service
The voluntary disclosure service allows a trustee or self-managed super fund (SMSF) professional to voluntarily disclose regulatory contraventions that have not been rectified.
If your SMSF auditor finds a contravention, they're required to report certain contraventions to us in the auditor contravention report (ACR) within 28 days.
If your fund has contravened the law, you should rectify this as soon as possible. You can work with your appointed SMSF professionals, including your auditor, to do this.
If contraventions remain unrectified, we encourage you to voluntarily disclose this to us using the voluntary disclosure service, without waiting for your auditor to advise us.
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.
Who can use the service
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 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.
If the SMSF professional is not registered with us as an authorised contact for the fund, a written authorisation signed by the trustees to allow us to liaise with the representative must also be provided.
When to use the service
The SMSF voluntary disclosure service should be used when 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 must prepare a rectification proposal to include with your voluntary disclosure. You should submit the plan with your SMSF regulatory contravention disclosure form. We recommend speaking with an SMSF professional to receive guidance about rectifying the contravention.
Even if you make a voluntary disclosure, your auditor is still required to report contraventions through an ACR. However, we will not commence an audit based on an ACR if the issue has been or is being resolved through a voluntary disclosure. This is unless we receive additional information that requires further investigation.
When not to use the voluntary disclosure service
Don't use this service if:
- you've already received notification of an ATO audit or review in relation to the contravention
- you're reporting a contravention involving another trustee and you want your identity kept confidential (whistleblower disclosure) – use the tip-off form to report the misconduct instead.
You should apply for SMSF specific advice before making a voluntary disclosure if either:
- you're unsure whether there has been a contravention of the SIS Act regulations
- you and your SMSF professional don't agree there has been a contravention.
SMSF specific advice is a written explanation of our view of how super laws may apply to your SMSF in relation to a specific transaction or arrangement. For example, you can apply for advice about investment restrictions, rules governing in specie contributions or payments and benefit payments.
Specific advice can:
- confirm if there has been a contravention
- provide you with more certainty about the contravention and enable you to formulate an appropriate rectification plan for inclusion in your voluntary disclosure.
The following examples explain the benefits of the voluntary disclosure service and are provided to assist SMSF trustees in deciding whether they are eligible to use this service.
Example 1: Stephens superannuation fund
The Stephens Superannuation Fund bank account was overdrawn twice during the 2023–24 financial year. After rectifying the breach the trustee engaged an SMSF auditor and disclosed the breaches to the ATO via the SMSF voluntary disclosure process.
We advised the trustees that given the contraventions were rectified, there was no need for them to use the service and by raising the breaches with their approved auditor they had discharged their reporting obligations. The trustees also put controls in place to prevent the fund bank account being overdrawn in the future.
Given it was a reportable contravention the SMSF auditor lodged an auditor/actuary contravention report (ACR). As a result of the ACR, we sent an education letter to the fund in relation to the breach.
End of example
Example 2: Klein superannuation fund
The approved auditor for trustees Emma and Jonas Klein identified a limited recourse borrowing arrangement (LRBA) breach in relation to the Klein Superannuation Fund for the 2023–24 financial year.
The breach arose because the Klein Superannuation Fund entered into an LRBA that had not been structured correctly. A holding trust did not hold the property on trust for the fund trustees and the LRBA was with a non-related party. The trustees made a voluntary disclosure of the breach and provided all relevant facts and supporting documentation. They also provided a proposed undertaking to rectify the contravention within 6 months.
The trustees actively engaged with us throughout the resolution process and lodged the outstanding returns. We accepted their undertaking to rectify the contravention. The terms of the enforceable undertaking were that the property was to be transferred into the holding trust within 6 months.
End of example
Example 3: Okafor superannuation fund
The trustees made an SMSF voluntary disclosure that the Okafor Superannuation Fund had not lodged annual returns for 4 years because all its money was lost in an investment scam. The trustees made their disclosure prior to the notification of an ATO SMSF review or audit and provided all relevant facts and supporting documentation including bank statements. The trustees provided an undertaking to wind up the fund and not to act as trustees of another SMSF in the future.
The trustees actively engaged with us throughout the process and we verified the investment scam claims. We accepted the undertaking and the SMSF was wound up.
End of exampleHow to make a voluntary disclosure
To make a voluntary disclosure, you must complete the SMSF regulatory contravention disclosure form providing us with:
- all relevant facts
- supporting documentation
- a rectification proposal or proposed enforceable undertaking.
If you do not complete the form, we will be unable to accept your disclosure. You must also actively engage with us throughout the resolution process.
The completed form and any relevant supporting documentation should be submitted to us. Use the method most appropriate to you:
- Trustees can use secure mail in Online services for business, selecting the
- topic as 'Superannuation'
- subject as 'SMSF Early engagement & voluntary disclosure'
- Tax agents can submit the voluntary disclosure form, signed by one or more trustees, using secure mail in Online services for agents.
- For both SMSF trustees and other SMSF professionals use
- an email to SMSFRegulatoryContraventionVoluntaryDisclosure@ato.gov.au. The email is an unsecured channel
- Fax: 1300 139 024
- Post:
AUSTRALIAN TAXATION OFFICE
PO BOX 3578
ALBURY NSW 2640
Accepting voluntary disclosures
When you lodge your SMSF voluntary disclosure by email, you will receive an email acknowledgment.
If you use any other method, we will assess your voluntary disclosure and issue a written response. This can take up to 2 to 3 months when we receive large volumes of voluntary disclosures.
We may also contact you to request additional information if insufficient information has been provided.
Depending on the facts and circumstances, the assessment of your voluntary disclosure will result in either a written response or an ATO review to consider the undertaking or rectification proposal.
Service expectations
What you can expect from us
If you engage with us and make a voluntary disclosure, you can expect us to:
- engage and work with you and your SMSF professionals with the intent to agree on a rectification plan
- take your disclosure and your willingness to engage with us throughout the review process into account when
- determining the level of enforcement action that is required
- making a decision about the remission of any applicable administrative penalties.
What we expect from you
We expect you to:
- engage with your SMSF professional to create a proposed plan to rectify the contravention
- provide the proposed plan for rectifying the contravention and relevant supporting documentation with your voluntary disclosure
- provide information demonstrating measures have been put in place to avoid similar contraventions occurring again
- actively engage with us throughout the review process
- immediately lodge any outstanding SMSF annual returns
- if necessary, amend SMSF annual returns and or individual income tax returns and pay any tax liabilities that may arise.