The ATO says it can provide tailored technical assistance for you on behalf of your SMSF trustee clients in some circumstances, orally or in writing, depending on the nature and complexity of their query.
For example, your client may need to seek tailored technical assistance if:
- they or you on their behalf are not able to find the ATO’s view of how the law applies to a particular technical issue
- you’re not certain how the ATO view of the law applies to your client’s circumstances
- you or your client is seeking greater certainty (protection) than the ATO’s published products provide.
If the contentious issue at hand is about how the Superannuation Industry (Supervision) Act 1993 and Superannuation Industry (Supervision) Regulations 1994 apply to a specific transaction or arrangement for an existing SMSF, you can apply to the ATO on the trustee’s behalf for advice to deal with that specific issue.
The ATO says it can provide specific advice about the following topics:
- investment rules including
- an investment by an SMSF in a company or unit trust
- acquisition of assets from related parties
- borrowing and charges
- in-house assets
- business real property
- in-specie contributions/payments
- payment of benefits under a condition of release.
The ATO is at pains to point out that it cannot provide financial advice, and also says it will not provide specific advice if the request relates to the complying status of an SMSF, trustee covenants, or the residency status of an SMSF (but the trustee can apply for a private ruling, as this is a tax issue).
There is a particular form that the ATO requires if your client wants specific advice about how the super law applies to a particular transaction or arrangement for an SMSF.
You can download this form in PDF format – see Request for self-managed superannuation fund specific advice (NAT 72441, 109KB).
Apart from requiring the use of the above form, the ATO also specifies that it will only provide SMSF specific advice if sufficient details have been provided (and that its decision to decline providing such advice does not have formal review rights).
Required information or documents
The ATO requires particular details if it is being asked to provide advice on the acquisition of assets, or about business real property, or regarding in-house assets.
Acquisition of an asset: If your client needs the ATO to determine whether the acquisition of an asset by the SMSF is prohibited by the Superannuation Industry (Supervision) Act 1993 (SISA), or whether it meets one of the exceptions, the ATO will need to be provided with:
- documents that show the current or previous (depending on whether or not the acquisition has occurred already) legal ownership of the asset
- details describing the relationship between the party who owns (or owned) the asset and the SMSF
- documents or details about the asset acquired or to be acquired, in particular whether the asset is
- listed shares
- business real property
- an asset described within subsection 66(2A) of the SISA
- details or documents that outline how the acquisition/transaction would occur or has occurred, including the value of the asset and how the value of the asset was arrived at.
Business real property: If your client wants the ATO to determine whether property meets the definition of “business real property” for the purposes of SISA, the ATO will need:
- details describing the relationship between the party who owns (or owned) the property, or lease, to be acquired for the SMSF or its members
- documents detailing the legal ownership of the interest in the real property and the form of that ownership (such as lease or freehold)
- details or documents that outline how the transactions would occur, or have occurred, including the market value of the asset and how that value was arrived at
- documents explaining or a detailed description of business activities that occur on the property or in a location of which the property is a part
- details of any private or non-business use on the property, including the degree of non-business use, purpose and frequency.
In-house assets: If your client requires the ATO to determine whether an investment, loan or lease (whether proposed or not) would meet the definition of an “in-house asset” for the purposes of SISA (and whether or not a contravention of the in-house assets rules has occurred), provide it with:
- details or documents outlining the specific transaction – this may include investment, loan and lease documents
- with regard to the investment, loan or lease arrangement, details describing the relationship between all parties and the SMSF
- details or documents that outline how the transactions would occur, or have occurred, including the market value of the investment, loan or lease and how that value was arrived at
- the total value of the SMSF’s assets in the year of income that the transaction has or would occur.
For more information about:
- the acquisition of assets, refer to SMSFR 2008/D2
- business real property, refer to SMSFR 2009/1
- in-house assets, refer to SMSFR 2009/4.