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Discount availability key to NALE

NALE discounts

The NALE rules will only apply to SMSF administration service discounts applied exclusively.

The extent to which an SMSF administration service discount is made available to the broader employee base of an accounting firm will be the determining factor as to whether this type of arrangement will trigger the non-arm’s-length expenditure (NALE) rules, a technical expert has said.

“If there are staff discounts provided to staff [SMSFs for administration services], then that discount is not regarded as NALE, provided they are effectively [applied] across the board for everyone,” Accurium head of education Mark Ellem said.

“I wouldn’t envisage a 100 per cent discount [to be regarded as a discount in this manner]. There is a carve-out for pro bono work, but that’s only where a trustee has no influence over that and I don’t think that could be an argument for the directors of an accounting firm.”

Ellem stressed directors of accounting firms will not have to charge their SMSF for administrative work if it is performed on an individual basis and if there is minor or infrequent use of the firm’s equipment.

“That can still be regarded as providing a service in their capacity as a trustee,” he noted.

“But if it’s the partner or director of the accounting firm and they’re using their staff to process their fund, and lodging [the SMSF tax return] through their tax agent’s licence [being] subject to their professional indemnity insurance, then it’s potentially more likely going to be a service provided in their professional capacity, and if the fee charged is not arm’s length, they’re going to have a non-arm’s-length [expenditure] issue.”

He reminded trustees they have until 1 July 2022 to address any potential NALE issues due to the ATO confirmation it will not be allocating compliance resources to this matter for the entire 2022 financial year.

The ATO released Law Companion Ruling 2021/2 at the end of July, finalising its position on NALE.

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