It shouldn’t need repeating, and this goes for every type of ATO case and not just self-managed super funds, but the tax man just doesn’t care about your excuses.
The ATO will allow some things like excessive contribution to fall by the wayside if you can explain you fall into “special circumstances”. But those instances are far and few between.
Look at some of the excuses people have used to try and get out of excess contribution taxes:
There is one particularly sad case, [Tran AATA 123], in which someone put $450,000 in their superannuation fund. The ATO replied by saying the person should have obtained financial advice.
“I’d prefer not to be in court, I’d rather be giving you financial advice up front. If you’re a financial planner you should know what you’re talking about. Quite often these cases come about because people are ignorant,” Hughes says.
If you’ve made a mistake but then haven’t tried to correct that mistake, the ATO is going to become very annoyed.
In the Bornstein AATA 424 case, a taxpayer spent a substantial amount of time overseas during the 2006-07 financial years. He was the employee and sole director of a company, and made regulator contributions into his super account.
He emailed his accountant while overseas, but received no response. After checking the ATO website, he saw that he was able to pay himself within 28 days into the new year under the superannuation guarantee.
However, that rule related to a completely different set of circumstances, and his contributions resulted in a tax charge.
But the case didn’t end there.
Because the person in question was able to show the ATO he had tried to contact his accountant, and had relied on instructions provided by the ATO website, he was able to get off the hook.
“While I would not ordinarily accept a mere misunderstanding of one’s obligations is enough to constitute special circumstances, there was what might be described as a ‘perfect storm’ of events, miscommunications and misunderstandings that combined to leave the taxpayer in an unusual and unfortunate position,” the judgment read.
Hughes says this is a significant case – the fact Bornstein actually went out of his way to find instructions and didn’t just do whatever he wanted is a key point.
“If he hadn’t checked the website, he may not have won,” says Hughes.
Here’s an interesting one.
In a 2008 case, a lawyer operating an SMSF fund used superannuation money to prop up his law firm, which is using the super fund as a type of “last resort”. Obviously, the ATO doesn’t like this very much and moved to find the fund non-compliant.
However, the case is interesting because a trustee said she had no idea what was going on. Therefore, the trustee argued, there should be some leniency.
But Hughes says the ATO was “particularly scathing” of that approach.
“Directors must make their own enquiries and independent assessment of that information or advice,” it said in the ruling.
“As acknowledged by the Commissioner, the ATO does have a role in educating taxpayers and trustees of self-managed superannuation funds about taxation and superannuation laws, but does not have an obligation, as submitted by the applicant, to ensure trustees understand and comply with the law.”
“In my view, the primary responsibility for this obligation resides with trustees and if the trustee is a corporate trustee, those who manage them.”
The message is clear: ignorance is no excuse.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
