What happens if I get the timing wrong when Paying an SMSF Release Authority?
A SMSF release authority is an ATO notification instructing an SMSF to release money from the fund in relation to a member’s super. The ATO will send a release authority after receiving an election made by a member requesting release of super monies.
The most common release authorities are made in relation to:
- excess concessional contributions
- excess non-concessional contributions
- Division 293 tax
Generally, release authorities are processed electronically using SuperStream. A SMSF has to pay the amount instructed within 10 business days from the date the release authority issued.
Hint – A division 293 tax assessment must be paid within 21 days of receipt which can be paid personally or from a member’s super balance. However, a member has 60 days to nominate the SMSF or another super fund to release super monies. The SMSF has 10 business days after the release authority has been issued to release the super from the member’s SMSF. Assuming, the member paid the div 293 tax personally, the ATO will then, in due course, pay the amount to the member after adjusting for any other outstanding tax payments.
Releasing super money prior to receiving a release authority
A contravention occurs if the SMSF trustee releases the money prior to receiving a release authority. The SMSF trustee breaches the payment standard.
A SMSF breaching the payment standards can result in:
- the fund being made non-complying and losing its concessional tax treatment – this action is not taken lightly and would only occur for very serious offences
- penalties can be imposed on each individual trustee or the corporate trustee which can be civil and criminal penalties (i.e. a fine or possibly jail time) or administrative penalties which can be up to 20 penalty units per breach which is $6,600
- the amounts withdrawn can be considered as illegal early access to super which is taxed personally at the member’s top marginal tax rate which can be as high as 47% (includes Medicare levy) and includes any tax-free component
Ignoring the ATO excess concessional contribution determination
The ATO will process an election on the member’s behalf to release 85% of the excess concessional contribution from the member’s SMSF (or other super fund) if an election has not been received within 60 days. The ATO will send a release authority to the SMSF trustee who must comply with the release authority and make the payment to the ATO within 10 business days of receiving it. If the payment is not made, then similar penalties to the above point can be applied except the penalty in relation to illegal early access.
Not making an election to release super in relation to excess concessional contributions
The tax treatment of excess concessional contributions remains the same if you elect to release super from your SMSF or pay it personally. However, where the excess concessional contributions are not released from your SMSF, they will be counted towards the member’s non-concessional contributions cap which could result in excess non-concessional contributions or be an issue in relation to using the bring forward rule.
Please refer to our article on “What is the bring forward rule in a SMSF” for further details.