No right to appeal SMSF compliance status change

Self-managed superannuation funds (SMSF) that fail to lodge their annual returns by the 31 October, 2019, due date and have their compliance status changed will have no rights to appeal to the Administrative Appeals Tribunal (AAT), according to SUPERCentral.

The Australian Taxation Office (ATO) recently announced that the compliance status of SMSFs would change from “complying” to “regulation details removed” if the funds did not lodge annual returns by the due date.

Rollovers to the SMSF would not occur and unrelated employer contributions would not be made as the SMSF would not appear on the Super Fund lookup website to be above board.

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SUPERCentral, a compliance-based documentation service, said as the action had no effective legal redress as the Super Fund Lookup website was not mandated by legislation there would be no rights of appeal to the AAT or right of review under the Administrative Decisions (Judicial Review) Act 1977.

“A complaint to the Taxation may not be effective as there is no statutory right to be listed on the website and, in any event, the Ombudsman may view the delisting of late lodging SMSFs to be a reasonable and non-punitive means of ensuring SMSFs perform their statutory obligation to lodge returns by the due date,” it said.

SUPERCentral noted that if the SMSF had lodged the returns on time and it was de-listed this might be a basis from an effective complaint to the Taxation Ombudsman.

“If the SMSF has remedied its late lodgements by lodging the missing returns, the non-rehabilitation of the SMSF may also be a basis for an effective complaint to the Taxation Ombudsman,” it said.

SUPERCentral said an SMSF should ensure the annual returns were lodged by the due date and not rely on the two-week grace period. If the 31 October, 2019 deadline could not be met, then the SMSF should consider appointing a tax agent before the date so that the lodgement of the return would be determined by the agent’s lodgement schedule.




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