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Graeme’s Super News - November Edition

Graeme’s Super News – November Edition

Read the latest updates from Graeme Colley, a respected educator, policy advisor, and technical expert with over 30 years’ experience in taxation and superannuation.

Welcome to some of this month’s roundup of key developments with SMSFs. From ATO compliance initiatives to ASIC audit reviews, make sure you’re up to date.

ASIC Flags Auditor Independence Breaches

ASIC recently released Report 817 – Building trust: Auditor compliance with independence and conflict of interest obligations. The report followed ASIC enforcement action taken against several auditors and firms identified as not meeting the independence and conflict of interest requirements.

Nearly one-third of the 48 auditors reviewed breached the mandatory independence requirements. Nine auditors failed to meet rotation requirements for 14 listed clients, and five held prohibited relationships under the Corporations Act. These breaches were found across all sizes of audit firms reviewed.

The source of the breaches was due to poor systems, lack of policies, carelessness, and inadequate quality control. ASIC considered that many auditors adopted a narrow, “tick-box” approach to compliance and failed to consider threats to independence or changing circumstances during audits. Some relied on inappropriate safeguards and did not document how they assessed independence risks.

Examples of threats included excessive non-audit fees—sometimes five times higher than audit fees—and long-standing relationships between auditors and clients, some lasting up to 36 years. ASIC emphasised that independence is fundamental to audit quality and encouraged all auditors to strengthen their practices and policies.

ATO Cracks Down on Late SMSF Lodgements

The ATO is taking a tougher stance on late lodgement of SMSF annual returns. About 10% of 2022/23 returns remain outstanding, and similar figures are expected for 2024. The ATO’s experience is that late lodgement often signals illegal early access or other compliance issues.

Consequences for late lodgement include removal of the fund from Super Fund Lookup, which restricts contributions and rollovers, and potentially may result in trustee disqualification.

Continued non-lodgement may trigger harsher penalties. The ATO advises trustees to respond promptly to any ATO correspondence and avoid ignoring compliance letters.

Trustee Declaration Requirements Clarified

Since 2007, SMSF trustees have been required to complete the ATO trustee declaration within 21 days of appointment and retain it for at least 10 years. Auditors are required to sight the original declaration and keep a copy in their audit file, along with annual confirmations that trustees continue to retain it.

However, many auditors only review copies and request new declarations when originals are lost. The ATO has clarified that if the original cannot be sighted, a new declaration must be signed. A once-off breach can be rectified, but repeated failures require an Auditor Contravention Report (ACR).

Auditors should not be lodging ACRs annually for the same fund due to missing originals if the breach has been rectified.

Market Valuation Breaches Increasing

Breaches of regulation 8.02B of the SIS Regulations, which requires SMSF assets to be valued at market value, accounted for 12% of all reported breaches in 2024–25. Trustees must ensure that valuations for each income year are accurate, in line with the ATO’s valuation guidelines and provide supporting evidence to auditors.

The ATO is using data analytics to identify funds which have reported unchanged asset values year after year, raising concerns about compliance. Failure to meet valuation requirements can result in additional tax liabilities and administrative penalties.

Auditors must assess whether the valuation basis is appropriate and document their findings. Trustees are reminded to provide objective, supportable evidence, including all documents requested by auditors.

SMSFs Failing to Respond to Release Authorities

The ATO has seen a rise in SMSFs failing to respond correctly to release authorities—documents authorising the release of funds to pay liabilities such as excess contributions, Division 293 tax or possibly Division 296 tax in future. Trustees must release the requested amount and submit a release authority statement within 10 business days of receipt.

Non-compliance can lead to significant penalties. Trustees should regularly check secure mail channels, set reminders, and use SMSF software to track deadlines. Working closely with administrators or tax agents can help ensure timely and accurate responses.

Keeping fund contact details, including electronic service addresses, up to date is essential for receiving important correspondence.

Surge in Compassionate Release of Super

Applications for compassionate release of super (CRS) have surged, particularly for dental treatments. Requests rose from 56,400 in 2021–22 to 90,700 in 2024–25, with costs reaching $104.4 million. Most applicants were aged 34 to 60.

The ATO, in collaboration with AHPRA, is concerned about practitioners supporting inappropriate access, especially for cosmetic procedures. Release on compassionate grounds is only available in limited circumstances, such as treating acute pain or life-threatening conditions, and requires certification from two practitioners.

Practitioners have been warned against providing financial advice without a licence and must ensure medical reports are accurate. New guidance from AHPRA and the Dental and Medical Boards emphasises that treatments should only be certified if necessary.

Writing Off SMSF Loans Requires Documentation

Writing off loans in SMSFs is being scrutinised by the ATO for breaches of the sole purpose test. Trustees need to demonstrate reasonable efforts to recover funds, including legal advice or evidence of insolvency. Without proper documentation, the ATO may see the transaction as illegal early access.

SMSFs generally cannot claim bad debt deductions unless they are in the business of lending. A capital loss may be claimed if the loan was made with a reasonable expectation of repayment.

If a member illegally accesses super, the funds cannot be returned, and any repayment to the fund will be treated as a new contribution. Trustees may face section 65 penalties, civil and criminal sanctions, disqualification, and fund non-compliance. Early access also breaches preservation standards, making the amount assessable income for the member.

Thank you for reading this months’ update.

If you are looking for more SMSF insights, you can watch Graeme’s latest webinar on demand here.



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The Cloudoffis Pulse - Product Updates

Welcome to our first-ever Cloudoffis product newsletter – Cloudoffis Pulse, where we bring you the latest product updates across Tax Sorted, SMSF Auditomation and SMSF Sorted.

This month, we’ve some really exciting updates to share with you. Our incredible product team has been working hard to build the products you’ve asked for.

We hope you enjoy this update

From the product desk:

We are pleased to announce that Cloudoffis has successfully attained ISO 27001 certification. At Cloudoffis, safeguarding your data is our top priority. We are proud that we have achieved ISO 27001 certification, the internationally recognised standard for information security management systems (ISMS).

You can learn more about this here.



Book time with your Account Manager:

If you’re looking to elevate your Cloudoffis experience, book 30 minutes with Jocelyn or Dilnar today.

Meet Jocelyn Meet Dilnar
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SMSF Death Benefit Checklist

Introduction:

When a member of an SMSF dies a death benefit may become payable to dependents. Also, if the deceased was an individual trustee or director of the corporate trustee a replacement may be required to ensure the fund can continue to operate and benefits are paid.

Here are some questions which may assist to ensure the correct documents are in place and decisions have been made to support the death benefit payment and the replacement of the trustee.

Depending on the client’s situation and the trust deed, there may be many more questions in addition to those below.

Notification of the Member’s death

  1. Has the trustee been notified of the death of a member or trustee?
  2. Has the trustee received a copy of the death certificate of the deceased or other official recognition of the death of the member or trustee?

Trust deed provisions

Do the governing rules of the fund, such as the fund’s trust deed, have any special requirements in relation to the death of the member or trustee?

Do the governing rules require replacement of the deceased member/trustee or member/director of the corporate trustee with the deceased’s legal personal representative (LPR) before a decision can be made about the payment of the deceased member’s death benefit?

Trustees

  1. Did the fund consist of a single member and a corporate trustee where the single member was the sole director of a corporate trustee?
  2. Did the fund have a corporate trustee and two directors who died simultaneously?
  3. Does the fund have one trustee or director of the corporate trustee who is living?
  4. If the sole director or the directors of a corporate trustee has died the company constitution may provide instructions on how the director is replaced.
  5. Did the deceased have a last will and testament which appointed an executor of their estate who can act as their legal personal representative (LPR)?
  6. If there is no will or LPR, have dependants or those who consider they have a claim to the superannuation of the deceased applied to the court for letters of administration. Has the Court granted letters of administration or is it in progress?

Death benefit powers of attorney and nominations

  1. Did the deceased grant an enduring power of attorney to a person or persons who are acting as the LPR of the deceased?
  2. Did the deceased make a death benefit nomination prior to their death?
  3. Is the death benefit nomination valid in terms of the fund’s governing rules and the law?
  4. Was the death benefit nomination binding or non-binding on the trustee?
  5. If the death benefit nomination is binding, the trustee is obliged to distribute benefits as instructed by the deceased.
  6. If the death benefit nomination was non-binding the trustee may use discretion to distribute benefits as provided in the nomination. However, they are not obliged to distribute benefits as provided in the non-binding nomination.

Payment of death benefit lump sums and pensions

  1. Have dependants of the deceased as at the date of the member’s death been identified for purposes of the SIS Act and Regulations?
  2. Was the deceased in receipt of a pension at the time of their death which provided a reversion to a dependant?
  3. Did the deceased make a valid reversionary pension nomination in accordance with the governing rules of the fund?
  4. Has the trustee made a decision concerning the distribution of death benefits to the dependants of the deceased or to their estate via their LPR?
  5. Are the member’s death benefits required to be paid as lump sums or pensions?
  6. Has more than an interim and final payment been made to the dependant as a lump sum?
  7. Was a pension payable to the surviving spouse if the deceased and surviving spouse were both under age 60 at the time of the member’s death? If so, tax is payable on taxable component of the pension until the surviving spouse is age 60.
  8. If pensions were payable to children of the deceased who are under 18 has the child’s LPR or guardian been identified to receive the payment on the child’s behalf?
  9. Have lump sums payable to the executor of the member’s estate been distributed in accordance with the will of the deceased?

Have trustee minutes and resolutions been made concerning the member’s death, appointment of trustee and payment of benefits to dependants or the member’s estate?

Has the trustee received confirmation of receipt of death benefit or commencement of a death benefit pension by the dependant and/or the estate of the deceased, as relevant?

Have the trustees notified the ATO concerning the amount of tax to be paid in respect of the taxable component of any death benefit lump sum paid to persons who are not death benefit dependants, for example, adult children of the deceased?

Cloudoffis makes preparation, approvals and compliance easy with AI-powered workpapers. As Australia’s leading SaaS provider in the SMSF industry, we bring over 9 years of unparalleled experience.

Pioneers in our field, we take pride in supporting the accounting and auditing community to streamline their workflows and work more efficiently through SMSF Sorted, SMSF Auditomation and Tax Sorted.

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Graeme’s Super News - October Edition

Read the latest updates from Graeme Colley, a respected educator, policy advisor, and technical expert with over 30 years' experience in taxation and superannuation.

Graeme’s Super News – October Edition

Read the latest updates from Graeme Colley, a respected educator, policy advisor, and technical expert with over 30 years’ experience in taxation and superannuation.

Update on Division 296

Division 296 amends the income tax law to introduce an additional tax of up to 15% on the increase in a person’s Total Superannuation Balance for the year on balances above $3 million. It was intended to take effect from 1 July 2025.

Based on recent media reports the government has paused progression of the tax. If the legislation does make it into to parliament it may not be in the same form as the original bill which lapsed on 21 July 2025. It may be better to wait until we see whether the legislation will go ahead and, if it does, whether any changes are made to the lapsed bills.

It is rumoured that the $3 million threshold may be indexed which may relieve one of the main issues with the legislation. However, the member’s total superannuation balance which is used to determine the threshold may still include unrealised capital gains in the calculation.

At the moment it’s just wait and see what the government proposes to do.

Amendments to superannuation contributions ruling finalised

Taxation Ruling TR 2010/1 Income tax: superannuation contributions has been amended by TR 2010/1A4 to provide the ATO’s view of the link between the non-arm’s length income provisions in section 295-550 of the ITAA ’97 and superannuation contributions. The amendments are relevant for trustees of super funds, particularly SMSFs, in determining whether the non-arm’s length income rules apply when making in specie contributions.

The amendments to TR 2010/1 also cover value shifting arrangements to exclude those occurring from 28 November 2024. But it covers the ATO’s approach to arrangements entered into prior to that date in Appendix 2 of the Ruling.

In relation to determining whether personal contributions are deductible the amended ruling covers the removal of the maximum earnings test which has applied since 1 July 2017.

Amended non-arm’s length income/expenditure ruling finalised

Law Companion Ruling LCR 2021/2 has been amended by LCR 2021/2A3 to clarify how amendments to section 295-550 of the ITAA ‘97 operate in a scheme where the parties do not deal with each other at arm’s length. It applies where the trustee of small complying superannuation funds, such as an SMSF or SAF incurs non-arm’s length expenditure (or does not incur relevant expenditure) in gaining or producing the fund’s ordinary or statutory income.

The revised ruling provides clarity to a range of NALI/E issues including the difference between services provided as a trustee and in a professional capacity.

ATO SMSF Stats for the June Quarter 2025

The latest SMSF quarterly statistics as at June 2025 were released in early September and highlights the continued growth of SMSFs. The ATO statistics show that there are 653,062 SMSFs which have a total of 1,203,127 members.

During the 2024/25 financial year there was an increase of 38,449 funds, which was a substantial increase over each of the previous three years. Nearly two-thirds of the increase in SMSF memberships has come from the younger age groups. Although over 50% of members are in the 60+ age group.

SMSFs now hold over $1 trillion in assets with the largest asset classes being listed shares and cash and term deposits.

The ATO’s SMSF quarterly statistical reports is available from the ATO website at June 2025 ATO SMSF statistics

Government Audit Office Review of SMSFs

The Australian National Audit Office (ANAO), has listed an audit of the ATO’s regulation of SMSFs for the 2025/26 financial year as well as a follow up audit of employer compliance with Superannuation Guarantee. The ANAO last examined the ATO’s management of SMSFs in 2007, and Superannuation Guarantee non-compliance in 2022.

The review of employer compliance with the Superannuation Guarantee requirements, compliments the introduction of the payday super which is due to commence on 1 July 2026.

Cancellation of Auditor Contravention Reports

If you are an SMSF auditor, the ATO must be notified if a reportable contravention under the SIS Act has occurred, is occurring or may occur. The contravention is made by lodging an Auditor Contravention Report (ACR) within 28 days of completing the audit.

However, if the ACR was sent to the ATO because of a genuine error then it can be cancelled. Genuine errors include:

  • lodging under the wrong fund ABN
  • providing incorrect information about the contravention based on the evidence you had in your possession at the time of reporting the contravention to us.

If the information received after lodging the ACR shows that the reported contravention was incorrect, didn’t occur, or has been rectified, a revised ACR should be lodged with the ATO. This can be done by using the ATO’s Online services for business to request a cancellation. If the ATO considers there are valid reasons for cancellation it will reply within 28 days of the request.

Issues with accountants’ wholesale investor certificates

In late June 2025 the Australian Financial Complaints Authority (AFCA) handed down a decision Case number: 12-00-1080719 concerning an SMSF which had invested in Contracts for Difference (CFDs) on the basis that it was a wholesale investor for purposes of the Corporations Act 2001.

AFCA came to the conclusion that the SMSF was a retail client because the financial services provided by the financial firms involved related to a beneficial interest in the SMSF, which was a superannuation product, and the SMSF held less than $10 million in net assets as required under the Corporations Act 2001.

The decision in this case changed a longstanding understanding on the basis of an ASIC Media Release 14-191MR Statement on wholesale and retail investors and SMSFs | ASIC . It indicated that if a superannuation fund held less than $10 million in net assets that ASIC would no action if the advice provider determined that the trustee was a wholesale client based on the general net assets test of $2.5 million applying to the individual. As a general rule this was taken to assume that the SMSF could be treated as a wholesale client.

However, in its decision AFCA pointed out that the Media Release 14-191MR is not a definitive statement by ASIC that the general wholesale client test applies to SMSF trustees in relation to financial services these trustees receive. In effect, the release relates to ASIC not taking action in the circumstances indicated in the Media Release.

The AFCA decision was recently confirmed by their lead ombudsman, Shail Singh, and in the AFCA newsletter dated 19 June 2025 that the Corporations Act treats everyone as a retail investor unless you fall into a category of wholesale.

Qualified accountants who have been asked to provide wholesale investor certificate for purposes of Chapter 7 of the Corporations Act must understand when it can be given for an SMSF and that the net value of the fund’s assets are calculated correctly.



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An update on Division 296 by Graeme Colley

Graeme Colley, who is a well-known expert in SMSFs and the Cloudoffis Independent Consultant, has provided an update on the latest developments for Div 296. 

What’s changed?

On 13 October, the government announced changes to the Div 296 tax proposal, which taxes increases in a member’s superannuation balance above $3 million.  The original proposal was placed under significant pressure by those who were impacted for many reasons.   These included no indexation of the $3 million threshold and the taxation of unrealised capital gains.  

The proposed changes still maintain the overall design of the legislation, which requires the tax to be paid by the member.  However, there are changes to the calculation of the amount to be taxed by excluding unrealised capital gains and introducing two thresholds at which the tax is payable.

The main changes to Div 296 announced by the Treasurer are:

Introduction of two thresholds

Div 296 tax will apply on balances above $3 million, and a further tax will apply on balances above $3 million.

Thresholds indexed

The two thresholds will be indexed in line with increases in CPI.  The $3 million cap will be indexed in increments of $150,000, and the $10 million threshold indexed in increments of $500,000.

Tax on ‘earnings’

The tax rate on the ‘earnings’ for balances above $3 million will be an extra 15% and a further tax of 10% applies if the member’s balance is greater than $10 million.  This means that a member who is wholly in the accumulation phase with a balance of between $3 million and $10 million will pay tax equal to 30% of their adjusted ‘income’, and those with a balance of more than $10 million will pay an additional amount equal to 40% of their adjusted ‘income’.

Calculation of the member’s adjusted ‘earnings’ for Div 296 purposes.

The calculation of a member’s total superannuation balance for Div 296 purposes will be adjusted for contributions, pension payments and other amounts.  The announced changes will now exclude unrealised capital gains, which was a controversial feature of the original proposal. 

If a member has a total amount in super greater than a threshold, the ATO contacts the relevant fund or funds to get further information so the adjustments can be made.  Any ‘earnings’ adjustment will be based on the fund’s taxable income.

Change in commencement date of Div 296

The proposed commencement date of the new tax is now 1 July 2026.  This means that Div 296 assessments will not be sent out to members until sometime in the 2027-28 financial year at the earliest.

Don’t forget that the government’s announcement on 13 October is not law.  There may be further changes when the legislation goes through the parliament, expected early in the new year.  As Div 296 is proposed to commence on 1 July 2026 don’t jump at shadows and make ad hoc decisions until the exact wording of the legislation is known and passed.

Further information on the government’s changes can be located on the Treasurer’s website and the Treasury website.

Want to ask Graeme about this?

Graeme will provide a detailed overview of the government’s Div 296 announcement at our Q&A webinar on 29 October

You can register for the webinar here. 

 

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ATO SMSF Stats for the June Quarter 2025

ATO SMSF Stats for the June Quarter 2025

The latest SMSF quarterly statistics as at June 2025 were released in early September and highlight the continued growth of SMSFs. The ATO statistics show that there are 653,062 SMSFs which have a total of 1,203,127 members.

During the 2024/25 financial year, there was an increase of 38,449 funds, which was a substantial increase over each of the previous three years. Nearly two-thirds of the increase in SMSF memberships has come from the younger age groups. Although over 50% of members are in the 60+ age group.

SMSFs now hold over $1 trillion in assets, with the largest asset classes being listed shares, cash and term deposits.

The ATO’s SMSF quarterly statistical reports is available from the ATO website at
June 2025 ATO SMSF statistics

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The latest update on Division 296

What is Division 296?

Division 296 refers to a section of the Australian Income Tax Assessment Act 1997 (ITAA 1997). It primarily deals with superannuation and the taxation of certain superannuation-related amounts.

Who does it affect?

  • Individuals with total superannuation balances over $3 million, starting from the 2025–26 financial year.
  • The extra tax applies only to the earnings on the portion of the balance above $3 million, not on the entire balance.

An update

Division 296 amends the income tax law to introduce an additional tax of up to 15% on the increase in a person’s Total Superannuation Balance for the year on balances above $3 million. It was intended to take effect from 1 July 2025.

Based on recent media reports, the government has paused the progression of the tax. If the legislation does make it into parliament, it may not be in the same form as the original bill, which lapsed on 21 July 2025. It may be better to wait until we see whether the legislation will go ahead and, if it does, whether any changes are made to the lapsed bills.

It is rumoured that the $3 million threshold may be indexed, which may relieve one of the main issues with the legislation. However, the member’s total superannuation balance, which is used to determine the threshold, may still include unrealised capital gains in the calculation. At the moment, it’s just wait and see what the government proposes to do.

To keep up to date, keep an eye on the Cloudoffis blog and also these sources below:

https://www.ato.gov.au/about-ato/new-legislation/in-detail/superannuation/better-targeted-superannuation-concessions?utm_source=chatgpt.com

https://treasury.gov.au/sites/default/files/2023-09/c2023-443986-em.pdf

https://ministers.treasury.gov.au/ministers/jim-chalmers-2022/media-releases/superannuation-tax-breaks

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Cloudoffis marks growth with two new executive hires and new Sydney CBD headquarters

Sydney, 16 September 2025: Cloudoffis, Australia’s leading provider of cloud-based audit and compliance technology, has unveiled a series of expansion milestones as it accelerates growth beyond SMSF audit automation and into the wider accounting market.

The momentum is being driven by the rapid uptake of Tax Sorted, Cloudoffis’ newest product, launched in July 2024. Tax Sorted’s plug-and-play ease of use, Excel-based design, and powerful integrations with the ATO, Xero and FYI Docs has given Cloudoffis an immediate foothold across an estimated 60% of the accounting market.

 

In response to this growth, Cloudoffis has:

  • Appointed two senior leaders to newly created roles – John Munden as Chief Strategy Officer and Melissa Lawlor as Head of Growth.
  • Relocated its Sydney headquarters from Parramatta to 60 Martin Place, a prestigious CBD location closer to customers and partners.
  • Commenced a new wave of recruitment, with additional hires announced recently and more roles to be filled in the months ahead.

 

“This is a defining moment for Cloudoffis,” said Viral Kanabar, co-founder of Cloudoffis. For nearly a decade, we’ve been an innovator in SMSF audit automation, achieving 22% market share. With Tax Sorted, we’re unlocking the much larger accounting industry, both in Australia and globally. The move to Martin Place, creation of new leadership roles, and our growing team all reflect the scale of our ambition.”

 

As Chief Strategy Officer, Munden will steer the company’s long-term growth agenda, including opportunities to expand internationally into markets such as the UK and the US. He brings more than a decade of leadership experience scaling software and professional services businesses across Australia and the UK, including senior roles at Apple and Xero, leading transformation teams.

 

“Tax Sorted is reshaping expectations in the accounting software space,” said Munden. “It’s fast, intuitive and genuinely reduces workloads – helping firms save up to 30 minutes per job and cut review times in half. My focus will be ensuring Cloudoffis captures this momentum and translates it into lasting global impact.”

 

Melissa Lawlor, Cloudoffis’ new Head of Growth, will lead brand, marketing and customer experience strategy. A seasoned SaaS growth marketer, Lawlor brings more than 15 years of experience from roles at Dext (formerly Receipt Bank) and Deputy, where she specialised in demand generation and scaling customer adoption.

“What makes Tax Sorted so powerful is its accessibility,” said Lawlor. “Accounting firms can be up and running in minutes, which makes change management seamless. That’s a huge differentiator, and I’m excited to help drive the next phase of Cloudoffis’ growth story.”

 

“We’ve built a product accountants actually love using,” added Manish Sheladia, co-founder of Cloudoffis. “Our vision has always been to create simple, powerful tools that transform compliance. Tax Sorted is proving that vision extends well beyond SMSFs – and we’re just getting started.”

With strong foundations in SMSF audit automation and a rapidly expanding footprint in tax and compliance, Cloudoffis is positioning itself as a global leader in cloud-based accounting solutions.

 

For more information about Cloudoffis, please visit: https://cloudoffis.com.au 

 

About Cloudoffis
Cloudoffis is Australia’s leading cloud-based audit and compliance platform, trusted by SMSF auditors, administrators, and accountants. With more than 22% market share in SMSF audit automation, Cloudoffis is now transforming tax and compliance workflows through its new Tax Sorted product. By combining deep industry knowledge with innovative, plug-and-play technology, Cloudoffis streamlines processes, reduces risk, and helps practices deliver higher-value client service.

For further information or to arrange interviews, please contact:

Jasmine Turvey, Head of PR – Reverb Media

E: jasmine@reverb-media.com.au

P: 0437 762 320

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Graeme’s Super News - September Edition

Read the latest updates from Graeme Colley, a respected educator, policy advisor, and technical expert with over 30 years' experience in taxation and superannuation.

ATO Auditor Compliance Program results for 2024–25

The ATO completed over 200 SMSF auditor reviews during the 2024–25 financial year.  They referred 41 auditors to ASIC for not complying with the audit and assurance standards and 36 auditors cancelled their registration.  

The main compliance issues included not obtaining sufficient and appropriate audit evidence for the auditor to form an opinion on the fund’s financial statements and whether the audited fund complied with the super laws.  There was also a lack of evidence that fund transactions were at arm’s length and not reporting the fund assets at their market value.

 

Separation of assets

The super law requires fund trustees to keep money and other assets of the fund separate from those held by the trustees individually or by a standard employer-sponsor or their associates.  

The ATO considers the fund assets must be held in the name of the trustee ‘as trustee for’ the fund.  This may not be possible in some cases where the law requires an asset to be held in the name of the legal owners rather than as trustees for the relevant fund.  In these cases, the auditor has an obligation to ensure the fund assets are legally owned by the fund, held by the trustees beneficially on behalf of the fund and are separate from the trustees’ personal or business assets.

Legal ownership can be evidenced by a declaration or acknowledgement of trust executed by the trustee over the fund’s asset.  Where this type of documentation is not available the trustees should seek legal advice.

If the fund does not separate its assets and comply with SIS regulations it is a reportable contravention.  The auditor should notify the trustees in writing of the breach and also the ATO via the SMSF Independent Audit Report if the contravention is material.  Also, the breach should be reported in an Audit Contravention Report if the ATO’s reporting criteria is met. 

 

What happens when a pension ceases?

The ATO’s opinion on when a pension commences and ceases is published in Taxation Ruling 2013/5.  While it is relatively clear when a pension commences it may cease suddenly for tax purposes when certain events occur. 

As a general rule a pension commences when all the capital with the purpose of supporting the income stream has been set aside in the fund.  The commencement day of the pension is the first day of the period to which it relates.

In contrast, the tax ruling points out that a pension ceases when there is no member or beneficiary entitled to receive it.  Examples include when:

  • the pension has a $nil balance, 
  • it has been converted (commuted) in full to a lump sum,
  • a person in receipt of a pension dies, and no one is entitled to automatically receive it,
  • the amount of the pension paid is less than the amount required under the SIS Act orthe  Commissioner’s General Powers of Administration, or
  • a child in receipt of a death benefit pension reaches age 25.

What the ruling does not tell you is that if a client has exceeded their Transfer Balance Cap and has received an excess transfer balance determination problems can arise.  In this situation the client has a number of options which include:

  • not commuting the excess amount notified in the determination in full by the due date, or
  • making an election for the ATO to send a commutation authority to the fund and have the excess commuted in full or in part. 

Where the:

  • income stream was commuted before the notice was received,
  • pensioner has died, or
  • notice was issued in relation to a capped defined benefit income stream (CDBIS)

the ATO is required to be notified of the event. 

 

If a member’s super fund has not commuted the excess amount as notified in the ATO’s commutation authority within 60 days of the issue date then the pension stops being in retirement phase.  This means the pension is treated as ceasing from the commencement of the relevant financial year.  Any income earned on the assets that were supporting the pension are taxed as though they are part of the fund’s accumulation phase assets. Any pension payments made to the member in the financial year are treated as lump sums.

It is possible to commence a new pension from the start of the next financial year.  However, the calculation of the new pension will be treated as if it has commenced from the fund’s accumulation phase assets.  This may result in the taxable and tax-free amounts being different from the previous pension. 

Accountants and auditors of SMSFs will need to be on the lookout for retirement phase pensions where the aggregate commencement values could be in excess of the member’s Transfer Balance Cap.  In these situations, they could expect the pensioner has been notified by the ATO that there is an excess amount which needs to be commuted.  If the fund has received a commutation authority then the accountant or auditor needs to confirm that the commutation has been made within 60 days of the issue date.  If this has not occurred then the fund will not be able to claim an earnings tax exemption for the relevant income stream in the income year or possibly for any later income years.

 

Crypto currency fact sheet

The value of crypto assets in SMSFs as at March 2025 was $1.675 billion.  As crypto assets are a relatively new asset class and increasing in popularity there are some fundamental issues that trustees and their professional advisers must become familiar with.  This includes accounting for the asset, it’s location, storage, ownership and access to the asset which may provide a challenge.

Because of the fluid and intangible nature of crypto assets proof of the existence may depend on getting access to relevant email accounts, mobile phones and other devices.  These store important asset information or are used as part of two-factor authentication or multi-factor authentication. Relying on these devices as information and storage sources creates a risk for the fund as investor.  There’s also the issue of whether the crypto assets can be located, accessed and accounted for including whether successor trustees or corporate trustees in the long term have a legal right and practical control to recover the crypto assets. 

The ATO has released a Tax and crypto asset investments factsheet to assist professionals and their clients when preparing fund accounts.  It includes the records that need to be kept for crypto assets including income tax and CGT

 

 

 

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Xerocon got Sorted

The team at Cloudoffis are absolutely thrilled to have attended our first Xerocon. The Xero community got their Tax Sorted over 2 days during 3-4 September. 

Cloudoffis showcased our newest product Tax Sorted, which instantly blew people away with its simplicity and ease of use. Setup is super easy, just log in with your Xero account, plug and play, and you’re ready to go!

Some of the features that accountants really loved were our relationship chart, the working trial balance (journals), job notes and the ability to auto populate workpapers – linking workpapers across job. We even had people start their 30 day free trial while seeing a demo!!

One thing which Xero’s Chief Product Officer highlighted during a presentation is that “You told us loudly and clearly, a truly streamlined compliance workflow requires us to have a complete workpaper solution that is deeply connected to bookkeeping and tax”. Cloudoffis couldn’t agree more, and the best part is that you don’t have to wait!

Tax sorted – our AI-powered workpapers are live today, with seamless integrations with Xero, FYI and the ATO. 

Here are some highlights from the event! And if you haven’t seen Tax Sorted yet, jump in and have a play with our 30 day free trial!

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