SMSF Trustee Companion

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1 If you are thinking about setting up a SMSF, there are a number of decisions you will need to make regarding the structure, operation and management of your fund. To help you understand the process and decisions involved, the ATO has recently identified 5 key aspects that you should consider in setting up a SMSF. The 5 key aspects are summarised below: 1. Deciding to set up a SMSF You need to think about the purpose for which you are setting up the SMSF and whether you have enough time, skill and money to manage the fund. 2. Preparing to set up your fund You must decide whether to set up the fund with individual trustees, a corporate trustee or as a single member fund. There are different requirements under each structure for the fund to be considered an SMSF, and all trustees must be eligible trustees. 3. Getting your fund started A trust deed needs to be prepared and executed to create the SMSF. To be legally established, trustees must be appointed and the fund must acquire assets. The fund should then be registered with the ATO. 4. Starting to operate your fund Every SMSF needs an investment strategy outlining the fund s investment objectives and action plan. All contributions and payouts must be in accordance with the fund s deed and super laws, and accurate records of the fund s activities must be kept. 5. Understanding your role and responsibilities Trustees must be aware of their duties and obligations under the SMSF deed and super laws to ensure they are compliant with the requirements. Noncompliance can result in penalties being imposed by the ATO. CNIP Pty Ltd and Chan & Naylor Australia

2 1. Deciding to set up an SMSF Managing a super fund requires time, skill and knowledge, along with money and assets to make the fund viable. The purpose of any SMSF must be solely to pay retirement benefits to members, and the decision to set up a SMSF should only come after comparing this with other retirement savings options. A SMSF requires a trustee i.e. an individual or company that holds and invests the fund s assets for the benefit of the members retirement. Upon setting up a SMSF, you will take on the role of either the trustee, or the director of a company that is a trustee also known as a corporate trustee. While being a trustee or director of an SMSF allows you to make your own investment choices, it carries with it the responsibility of managing the fund and making decisions which are in the best interests of all the fund members. With a SMSF you have the ability to: Control Leverage Purchase direct Property Manage life and disability insurance Increase asset protection Manage the asset for the family while minimising their taxes Property Development Ownership of part of your profitable business CNIP Pty Ltd and Chan & Naylor Australia

3 The Enduring family Superannuation Fund TM Deed was developed with these objectives in mind. It is a flexible SMSF for the family, controlled by the family for their long term financial care with significant tax and estate planning advantages. It was set up to more easily increase and leverage its practical benefits with the help of a family superannuation fund advisor. It incorporates all the legislative requirements which our experience shows are absent from traditional retail, industry and master funds as the rules in these funds must be written to cater for all members not just for the benefit of a few. Therefore they exclude many practical benefits not because they are not allowed but because some members may not wish these rules to apply. Within the family environment this should not be an issue as you are controlling your own funds and no external parties are involved. Our Enduring Family Super Fund includes the following benefits: 1. Proportional voting. 2. Potentially retain funds in the SMSF for the family after member s death. Payments to family members can have taxation consequences as well as asset protection issues and so retention of monies within the fund can prove beneficial. 3. Anti Detriment Deduction. T 4. Termination Payment on Death and Disability. 5. Ability to define financial dependents. 6. The ability to incorporate a SMSF Will. Remember your super does not automatically form part of your estate and must be treated accordingly as it is not part of your normal will. 7. Allows for an easier creation of a valid Binding Death Nomination. 8. Use of lump sum payment strategy in transition to retirement 9. Auto Reversionary Pensions. 10. Improved Asset protection. 11. Ability to include children under 18 years of age 12. Self Insured Life Cover. A SMSF may be able to claim a tax deduction for a deemed premium for life cover it creates for a member. 13. Allows for multiple pensions to reduce impact of proportional allocations to better utilise the taxable and non taxable components of your pension. 14. Allows for transition to retirement pensions, withdrawal and re-contributions. 15. Inject non concessional contributions into new super account which has no taxable balances to ensure this injection generates a pension which is primarily all non taxable. 16. Segregate your assets each 1 July so that the better performing assets are allocated into pension stage with the higher non taxable proportion when other members are in accumulation. 17. Ability to cancel pension payments and restart when fund values fall as any reduction in fund values are first allocated to taxable balances. 18. Capacity to allow for borrowings to purchase residential property and business real property. 19. Ability to terminate members who may not be in agreement with majority members. 20. Designed to continue via your legal representative or your enduring power of attorney. CNIP Pty Ltd and Chan & Naylor Australia

4 2. Preparing to set up your fund If you have made the decision to set up an SMSF, the next step is to choose the structure of the fund, keeping in mind that each structure has different requirements for it to be a complying SMSF under super laws. If the fund has individual trustees, it must have four or less members to be a SMSF, where each member is a trustee. Compared to a corporate trustee, a fund with individual trustees can be less costly to establish and is subject to fewer reporting obligations. If the fund has a corporate trustee, it must also have four or less members, where each member is a director of the company and each director of the corporate trustee is a member of the fund. While directors of a corporate trustee must comply with more rules than individual trustees, such as the Corporations Act 2001(Cth), having a corporate trustee can make it easier to keep fund assets and business or personal assets separate. A third option is to set up the SMSF as a single member fund. In that case, the fund can either have a corporate trustee or have two individual trustees where one person is a member. In most cases, all members of the fund will need to be trustees, so you must consider whether the members are eligible to be trustees. Generally, persons over 18 are eligible, provided they are not under a legal disability and are not a disqualified person. For a corporate trustee, the responsible officer, along with the trustees and directors of the company must not be disqualified. In addition, to be a complying fund and obtain tax concessions, the fund must come within the definition of an Australian super fund for tax purposes. Overall, the choice of how to structure your SMSF will influence the manner in which you administer the fund and the types of benefits you can pay. You should consider the benefits and costs of each option and discuss them with a legal advisor before making a decision. CNIP Pty Ltd and Chan & Naylor Australia

5 3. Getting your fund started It is important that your SMSF is set up correctly to ensure it is a complying fund, it is easy to administer and is able to pay benefits as required. All SMSFs are a type of trust, and hence a trust must be created for each fund. This requires the preparation of a trust deed, along with the identification of trustees, assets, identifiable beneficiaries and the intention to create a trust. The trust deed sets out the rules for establishing and operating the fund, and should be prepared by a legal professional. The deed should reflect the objectives of the fund, the composition, appointment and removal of trustees, and the method and timing of benefit payouts. It should be updated as necessary to remain current with respect to members needs and super laws. A trustee of a superannuation fund must act according to the terms of the trust deed of the fund. If superannuation law changes, the trust deed of the fund may need to be updated. The Trust Deed documents the rules that the fund must operate within, such as/including: the appointment and removal of the trustee to the fund; the admission of members to the fund; the appointment of various professional advisers to the fund (including the SMSF adviser, the administration and the auditor); trustee meetings, voting guidelines, minutes and how the meetings are to be run; the establishment of the funds cash account; the setting of an investment objective and strategy for the fund and its members; the types of investments that the trustee is able to invest in; the acquisition and disposal of assets; the approval of making benefit payments to a member; the payment of death benefits to dependants or legal personal representative of a deceased member; the acceptance of a death benefit nomination form and the establishment of a death benefits policy; the payment of a disablement benefit to dependants or legal personal representative of a disabled member; the acceptance of a disablement benefit nomination form and the establishment of a disablement benefits policy; the retirement of members as members of the fund; the establishment of members accounts, accounts of the fund, audit reports and any notifications to members required under the trust deed or Superannuation Industry (Supervision) Act 1993 (SISA) and; the creation of any reserves. CNIP Pty Ltd and Chan & Naylor Australia

6 All trustees and directors of corporate trustees need to consent to their appointment as trustees, and sign a trustee declaration within 21 days of appointment. An SMSF must hold assets to be legally established. This is usually achieved by making a contribution to the fund at the time of executing the trust deed. All assets must be protected by accurately recording their ownership. Fund assets, other than money, should be held in the name of either the individual trustees as trustees for the fund, or the corporate trustee as trustee for the fund. To avoid the possibility of additional tax liability on certain member contributions, each member s TFN must also be recorded. Once the fund has been legally established, it must be registered with the ATO. For an SMSF to be a complying fund and obtain tax concessionary treatment, you must elect for it to be regulated within 60 days of its establishment. All funds are then issued with a TFN and ABN. A bank account will need to be opened in the fund s name to manage the fund s operations and for the receipt of cash contributions and rollovers of super benefits. Account records should be kept for each member, detailing their contributions, any fund earnings allocated to them, and any payments of super benefits made to them. SMSF Trustee Companion CNIP Pty Ltd and Chan & Naylor Australia

7 4. Starting to operate your fund An investment strategy must be developed to document the fund s investment objectives and how you plan to achieve them. There is a danger that trustees will not give due consideration to diversification and, accordingly, medium to long term returns may be lower than those achieved from a public superannuation fund. In formulating an investment strategy, trustees must consider all of the fund members and the dates at which they will retire, and manage the fund assets to be able to make the retirement benefits available on these dates. These skills as well as being able to watch the investment markets are not acquired easily. Trustees of self-managed superannuation funds need to measure their fund s performance in the same way as public superannuation funds. For example, reductions in the market value of assets need to be taken into account when measuring fund performance. The additional responsibility you take for the legal status and investment performance of your SMSF should not be taken lightly. Your SMSF is required to have an Investment Strategy that seeks to maximise the member s benefits. The key aspects of the Investment Strategy are: The trustees of a SMSF are solely responsible and directly accountable for the management of their members benefits. They can use an adviser but in the end it is their responsibility; as part of this responsibility the trustees of a SMSF are required to prepare and implement an investment strategy for the superannuation fund; the strategy must reflect the purpose and circumstances of the fund and have particular regard to the membership profile, benefit structure, tax position and liquidity requirements of the fund; an investment strategy should set out the investment objectives of the fund and detail the investment methods the trustees will adopt to achieve those objectives; it is the trustees duty to make, implement and document decisions about investing fund assets and to carefully monitor the performance of those assets; the trustees must ensure all investment decisions are made in accordance with the investment strategy; and breaches of the investment strategy requirement may result in the trustees being fined or sued for loss or damages. In addition, the fund could lose its complying status. A financial advisor may help devise the strategy; however, the trustees of the fund are ultimately responsible for managing the fund s investments. All contributions and rollovers must be in accordance with the fund s trust deeds and super laws. A contribution is a payment made to the fund, while a rollover involves the transfer of existing super benefits from a previous fund to the newly established SMSF. CNIP Pty Ltd and Chan & Naylor Australia

8 In determining whether your fund can accept contributions from a member, consider the type of contribution, whether there is a cap on contributions which the member has exceeded, the member s age and whether they provided their TFN. In general, an SMSF can accept employer contributions, personal contributions, salary-sacrifice contributions, super co-contributions and eligible spouse contributions. However, check the rules governing your fund to clarify this position. As a trustee, you must develop a method for keeping accurate and current administrative and financial records for the fund. These can be important in supporting the decisions you make on behalf of the fund and in helping auditors assess the fund s compliance with super laws. One of the requirements under super laws is that each SMSF appoint an approved auditor to audit the fund s operations each year. If the fund begins paying a pension to any member, an independent actuary may also need to be appointed. Trustees must know the rules contained in the trust deed and super laws about paying benefits to members. The common forms of payment are as a lump sum, as an income stream, for example a pension or annuity, or a combination of both. It is also important to plan for the future by considering how to deal with members funds in the event of their death, and whether insurance is necessary for protection of the fund s assets. CNIP Pty Ltd and Chan & Naylor Australia

9 5. Understanding your role and responsibilities Ultimately, it is the trustees who are responsible for complying with tax and super laws, even if financial and legal advisors provide guidance. The ATO can impose penalties for non-compliance, including declaring the fund as noncomplying and disqualifying trustees. While an SMSF allows trustees to make their own investment decisions, these need to be made in accordance with the fund s trust deed, investment strategy and super laws. In particular, they must comply with certain investment restrictions contained in super laws. A legal advisor can help determine whether your fund s investments comply with these restrictions. Keeping proper records is imperative for the fund s audit to be properly executed each year. As trustee, you are responsible for ensuring that the auditor s report is lodged with the fund s annual return. The decision to set up a SMSF is only the first of many which must be made in order to establish an effective and viable super fund. Some of the decisions and processes involved can be complex, so it is critical you seek advice from legal advisors with expertise in superannuation law. SMSF Trustee Companion CNIP Pty Ltd and Chan & Naylor Australia

10 Contact Us Chan & Naylor is Australia s leading property accounting group, ranked in the BRW Top 100 Accounting Firms Australia. We have offices in Brisbane, Gold Coast, Sydney (3 locations), Melbourne and Perth. At Chan & Naylor you can count on our knowledge and expertise in the following areas: Property Small Business Asset Protection Self Managed Superannuation Funds Taxation Wealth Creation Estate Planning Our motto is: To help our clients increase and protect their net worth from generation to generation A free 5 minute question and answer service is also provided by Chan & Naylor. To register your question please go to and click on Ask The Experts. If you would like a consultation to discuss your situation and any of the strategies, please contact Chan & Naylor via or where you will be able to arrange a suitable time to meet with a Chan & Naylor Consultant.. If you want to discuss any of the strategies please contact Chan & Naylor via or on where you will be able to arrange a suitable time to meet with one of our team. CNIP Pty Ltd and Chan & Naylor Australia

11 DISCLAIMER This document contains general information only This information has been prepared as a general guideline, and is not intended to be an exhaustive or a complete analysis of the topics in question or issues raised in this e booklet. There are many particular legal, taxation and accounting matters which have not been dealt with in this e booklet and readers are urged to discuss any aspect of the operation of any of these matters discussed herein with their professional advisers. In particular asset protection, estate planning and superannuation are potentially very litigious areas of law and you will need specific advice before you take any actions if you want your wishes complied with. Before taking any action or implementing any strategy you should seek professional advice from your lawyer, accountant and or financial planner who will take into account your specific circumstances and objectives. Whilst reasonable care has been taken in preparation of this information, subsequent changes in circumstances (including legislative changes) may occur at any time and may impact on the accuracy of this information. Chan & Naylor Australia Pty Ltd nor its directors, officers or associated and related entities including the author take no responsibility for any omissions or inaccuracies in this information and will not be held liable for any losses or damages that may result in the use of this information. CNIP Pty Ltd and Chan & Naylor Australia

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