The ATO has recently published Practice Statement PS LA 2012/4, which details how they will administer the false or misleading no-shortfall penalty. They tell us that trustees who make a false or misleading statement after 4 June 2010 may be liable for penalties, even where this statement does not result in a shortfall amount. No penalty is applied if you took reasonable care at the time you made the statement. We learn further that the statement must also be false or misleading in a ‘material particular’ for this penalty to apply. For example, a rollover benefit statement and a notice to claim a tax deduction form both contain material particulars.
****Remember – As an SMSF trustee, you have the ultimate responsibility for your SMSF, even if you use professional services such as administration providers, tax agents or other financial advisers.
An example is given in the practice statement about an SMSF loan to members and where the new penalty may apply in relation to SMSFs.
Note – The statement:
- Can be written or verbal;
- Must be material to tax or super law;
- Can be for any taxes, including reporting, lodgment, debt and registration statements made by an entity.
For more go to: Superannuation and false or misleading statements which do not result in a shortfall amount, Law Administration Practice Statement PS LA 2012/4, Division 284 of Schedule 1 of the Taxation Administration Act 1953, Miscellaneous Taxation Ruling MT 2008/2 Shortfall penalties: administrative penalty for taking a position that is not reasonably arguable