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ATO withholds an SMSF’s ABN from the Super Fund Lookup — can anything be done?

ato withholds an smsf's abnThe ATO’s online Super Fund Lookup (www.superfundlookup.gov.au) (‘Lookup’) contains the ATO’s record of the current compliance status of SMSFs. Employers and large superannuation funds can utilise the Lookup to determine the credentials of the SMSF (eg, whether it is treated as complying) for the purposes of super contributions and rollovers.

In the normal course of events, a new SMSF that obtains an ABN and elects to be regulated is published on the Lookup and treated as complying. However, at times the ATO use certain information to choose to withhold a new SMSF’s ABN from the Lookup. Practically, this can prevent or delay the SMSF from receiving contributions from employers and rollovers from large superannuation funds.

Our experience suggests this ATO action can commence with the ATO conducting a phone interview with an SMSF trustee to see if the trustee can demonstrate a capacity to operate the fund within the relevant superannuation laws. It can also commence where the ATO has developed a ‘concern’ about a fund’s future compliance risk. If the ATO feel that the trustee cannot demonstrate a capacity to operate within the superannuation laws, it withholds the ABN of the fund from Lookup. This practice of contacting trustees applies equally to directors of corporate SMSF trustees. The ATO usually state here that there is an opportunity for the SMSF to be listed on the Lookup after it lodges its first annual return. However, this delay can prove to be a substantial problem for trustees who feel the phone interview was unfair, or who were relying on roll overs, etc to engage in certain imminent transactions (eg, real estate transactions).

For trustees who want an opportunity to overcome the situation and be listed on the Lookup sooner, there is the strategy of seeking ATO review of the situation. Prompt action is required. DBA Lawyers has developed a ‘New SMSF withheld from Super Fund Lookup kit’ to provide information and templates that can be used to ask the ATO to change their decision. The steps recommended by the kit include the trustees taking prompt action to successfully undertake a relatively brief program of study regarding their responsibilities as trustees. The kit also includes certain template documentation as well.

The kit can be purchased from DBA Lawyers for $330 per SMSF by emailing [email protected] and requesting the ‘New SMSF withheld from Super Fund Lookup kit’.

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