Several cases from the Financial Services and Credit Panel show advisers will be held responsible for inappropriate excess non-concessional contributions (NCCs), further proving that ATO portal access could be a beneficial boost for the profession.
Over the past year, the FSCP outcomes register has included some cases involving excess NCCs, attributing the mistakes to financial advisers delivering unsuitable advice.
An FSCP decision in April 2025 concluded an adviser’s recommendations were inappropriate for the client’s situation.
In June 2022, the adviser recommended the client make a NCC of $110,000 for the FY22 financial year and $301,681 (total) for the FY23 financial year.
At the time, the adviser did not take into account that, as of 5 May 2022, the client was in the second year of a three-year “bring-forward arrangement” and their remaining balance was $124.65.
The ATO notified the client they made an excess NCC of $109,775.35 in FY22 and in 2023 told the client they should withdraw $312,301.21 from their super and their FY23 income tax assessment would be amended to include their associated earnings amount of $39,174.
Alternatively, the client’s excess NCC would be taxed at 47 per cent and the ATO would send her an excess NCC tax assessment for $131,131.55.
The FSCP concluded this situation was the result of inappropriate advice and not the responsibility of the super fund or the ATO. However, the FSCP sitting panel decided no action was warranted as the adviser quickly rectified the breach, thereby proving they understood their continuing professional development (CPD) obligations.
A similar decision was made in March 2025, where the adviser gave inappropriate advice and failed to take into account the client’s previous NCC. As a result, the client incurred tax liabilities of $5,552.58 on associated earnings.
Jumping into the portal
The Wealth Designers financial adviser Dawn Thomas told Professional Planner last week about some instances where clients have received unexpected incorrect excess non-concessional contributions from the Australian Tax Office.
Thomas said the mistaken excess NCCs have resulted in the ATO taking money out of the account, which has been difficult and expensive to recover for the client and adviser.
Advisers have been clamouring for better access to the ATO portal which would reduce the chance of mistakes around excess NCCs at the advice level.
Information about taxable income, superannuation and contributions is essential for advisers to be able to provide appropriate advice. Despite this, advisers face delays and extra costs when acquiring this information through means such as accountants or super funds.
Only tax agents and BAS agents can access ATO portal information on behalf of a client. Thomas said advisers need access to the ATO portal, as it is supposed to be the “source of truth”.
Although the data in the ATO portal is not guaranteed to be correct or up to date, it does offer another reference for advisers to crosscheck.
Associations throw support behind ATO access
The Financial Advice Association Australia included the request for advisers to have access to the ATO portal in its pre-budget submission in February 2025 and was part of its five point election wish list.
“Unlike tax agents or BAS agents, financial advisers cannot currently access the essential client tax information they need to do their jobs,” the submission said.
The “government should enable the ATO to create a new, read-only class of access to the ATO portal for licensed financial advisers”.
In a webinar hosted by the FAAA last Thursday, chief executive Sarah Abood reiterated the association’s position that adviser access to the ATO portal is important.
“We believe there’s strong support for financial advisers to have that access,” Abood said.
“Hopefully that will be something that a new minister can have a look at and agree and push forward with fairly quickly, and that would make a meaningful difference to the lives of many advisers.”
The SMSF Association also produced a submission urging the government to provide limited access to the adviser so they could acquire information necessary for the administration of SMSFs.
“Given the nature of the information to be provided, access should only be permitted where the role is authorised by the taxpayer,” the SMSFA submission said.
The Joint Associations Working Group also argued in favour of providing advisers limited access to the ATO portal, rejecting the ATO’s argument that there were financial constraints.
The submission noted the aforementioned disciplinary body actions had been based on mistakes to do with super contributions which could have been avoided with portal access.
“Whilst it is not necessarily the case that access to the ATO portal would have avoided these mistakes, it is very likely that it would have provided substantial benefit in doing so,” the submission said.
“The point being, that access to the particularly important information in the ATO portal plays a critical role in ensuring that the financial advice is both appropriate and compliant, and that risks to consumers are minimised.”
The JAWG submission included backing not only from the FAAA and SMSF Association, but also the Financial Services Council, Boutique Financial Planning Principals Association, Licensee Leaders Forum and Stockbrokers and Investment Advisers Association.
