FAMILY SUPER FUND (SMSF) NEWSLETTER

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1 SPRING 2014 Super Legislation Update Key Measures A number of key superannuation measures are due to commence from 1 July 2014, as outlined below. The measures due to start from this time include the following: Item Superannuation guarantee Administrative penalties Description Following the Federal Budget, the superannuation guarantee rate will rise from 9.25% to 9.5% for the 2015 income year. The new penalty regime for FSFs will commence from 1 July INSIDE THIS ISSUE» Super Legislation Update Key Measures effective 1 July 2014» New Penalty Regime for Trustees» ATO Guidance Pension Minimum Death of a Pensioner» Q&A bankruptcy» Q&A child members Commonwealth Seniors Health Card Insurance The Federal Budget stated that the Seniors Supplement will no longer be paid after the June 2014 quarterly payment. On a positive note, the Health Card income threshold rates are expected to be indexed annually for the first time from September From 1 July 2014, your FSF will generally be restricted to providing life cover, any occupation total and permanent disablement cover and eligible income protection policies (transitional rules apply). SPECIAL POINTS OF INTEREST» TIP New rules ( SuperStream ) governing how superannuation contributions are made and received begin on 1 July Note, transitional arrangements have been introduced to help with the implementation of these rules. Other changes In the Federal Budget, the Government announced that it intends to allow individuals to withdraw any excess non-concessional contributions made from 1 July 2013 (together with earnings on the excess). It is proposed that the earnings withdrawn will be taxable at your marginal tax rate. empowering your financial evolution TM Page 1

2 New Penalty Regime for FSF (SMSF) Trustees Legislation has given the ATO new powers to penalise FSF trustees who breach their obligations. The changes commenced on 1 July Currently, the ATO only has a limited range of penalties to deal with FSF trustees who break the rules, and these penalties are difficult and time-consuming for the ATO to manage. Hence, some trustees are currently not being held accountable for failing to meet their obligations under the law. Overview of the ATO s new FSF penalty regime From 1 July 2014, the ATO will have three new powers to deal with FSF trustees (or director/s of a corporate trustee), who contravene the superannuation rules: 1. Require you to correct the breach the ATO can write to you instructing you to fix the breach within a specified time limit. The ATO will also request evidence proving that the breach has been rectified. 2. Make you do a course the ATO may require you to complete an education course by a certain date if it believes that you lack knowledge about your trustee obligations. The course will be free, but you must personally pay any travel or other out-of-pocket costs (e.g., internet fees). In other words, these costs cannot be reimbursed by your FSF. If you do not comply with the ATO s requests outlined above in 1.and 2.you could potentially be fined up to $1,700 and incur penalties described at 3.below. 3. Monetary penalties as an FSF trustee (or director of a corporate trustee) you may also be personally liable for monetary penalties of between $850 and for defined breaches of the superannuation laws. These penalties are personally payable by you as trustee (or director of the corporate trustee). This means that your FSF cannot pay or reimburse the penalty to you. Higher penalty for individual trustees Generally speaking, individual trustees will be exposed to higher monetary penalties, compared to a company trustee. This is because each individual trustee may incur a penalty, whereas a company trustee will generally only incur one penalty. EXAMPLE Jill and Merryn fail to ensure that financial accounts are prepared for the 2015 income year. A penalty of $1,700 is imposed on each individual trustee ($3,400 fines in total). In contrast, the corporate trustee would have received a penalty of $1,700 only. Jill and/or Merryn must pay the penalty. WARNING The ATO has advised that trustees who do not correct existing law breaches before 1 July 2014 are exposed to penalties under the new regime. Some broad examples of the breaches that will attract a penalty from 1 July 2014 are described in the table below. Not every single breach of the superannuation rules results in a penalty. Further, the ATO may remit all or part of any penalty imposed. If... your fund lends money to you as a member (or a relative) your fund borrows money (exceptions apply) your fund does not take reasonable steps to comply with the inhouse asset rules (e.g., you stay in a holiday house owned by the fund) you don t keep necessary trustee minutes for 10 years you fail to complete a required education course (2. above) the penalty is... $1,700 $850 Page 2

3 ATO Continue to Talk up New Penalty Regime The ATO s new penalty regime for FSF trustees commenced on 1 July Under this regime, the ATO has expanded powers to deal with FSF contraventions (including monetary penalties). Recently, the ATO have been commenting on what the new regime means for trustees moving forward. What are we expecting of the ATO under the new rules? Some of the issues the ATO have raised are as follows:» Contraventions - the ATO auditor will review the contraventions report provided by your fund auditor.» Phone call - if you have contravened the superannuation rules, you may receive a phone call from the ATO asking you questions about why you broke the rules.» Risk categories - based on the phone call, the ATO will assess your risk, and whether they will take any further action (including audit activity). It is expected that breaches of the law such as taking money out before you retire will be treated by the ATO as high risk. ATO Guidance Pension Minimum Concession Death of Pensioner The ATO are continuing to release guidance for FSF trustees on the issue of pensions. In this regard, the ATO has recently announced an important concession relating to the minimum pension obligations for a member who dies during the income year. Death of a pensioner If you are in receipt of a pension, the superannuation laws require a minimum pension payment to be made each income year. Meeting this pension payment each year is a key requirement for fund earnings on assets supporting the pension to be tax exempt. By way of background, there are essentially two types of pensions you can have, as outlined in the table: Type Pension continues on death Pension ceases on death Description The pension continues to be paid after death to an eligible beneficiary (e.g., your spouse or children under 18). This is known as a reversionary pension. The pension stops when you die. This is known as a nonreversionary pension. If your pension ceases on death, strictly speaking, the fund is still obligated to make the minimum pension payment before death. If this did not occur, the earnings on the pension assets would be taxable from the start of the income year. However, this would be a harsh outcome, given that you can t predict your time of death. The ATO have now stated that it will not require a minimum pension payment to be made in the year of death if you are in receipt of a non-reversionary pension. This means that your fund will not lose the tax exemption on earnings from pension assets simply because it has not made the minimum pension payment. Also, the tax exemption continues until your pension benefit is paid to your beneficiaries, provided that this occurs as soon as practicable. Page 3

4 WARNING If your pension is reversionary and continues after your death (e.g., to your spouse), your spouse must ensure that the minimum pension payment is made in the year of death. EXAMPLE John is a member of an FSF and he is in receipt of an accountbased pension that ceases on his death. He typically makes his pension payments in June each year, but dies in March In these circumstances, under the ATO concession, no minimum pension payment is required for the 2014 income year. Furthermore, the fund retains the tax exemption on earnings from pension assets until the pension benefits are paid out to your beneficiaries (provided this occurs as soon as practicable). Q&A» Bankruptcy» Child Members alex morris CFP SSA Q: I was recently made bankrupt, am I permitted to remain a member of my FSF? If not, can I appoint someone to act on my behalf? No, you cannot remain a member of an FSF once you have been made bankrupt. The reasons for this are explained below. Firstly, to remain a member of an FSF, you need to be a trustee (or director of the corporate trustee). However, the superannuation rules do not allow you to act as trustee of your FSF if you become bankrupt. Additionally, the rules do not let you appoint someone to act as trustee on your behalf while you are bankrupt. This generally means that you cannot remain a member of your FSF, and will need to roll over your member balance to another superannuation fund, such as a public offer fund. However, you must immediately notify the ATO of your disqualification and resign as a trustee of your FSF. Q: I would like my child to be a member of my FSF. Is this possible? Who would act as a trustee for the child? Yes, your child can potentially become a member of your FSF. However, you need to ensure that the number of FSF members does not exceed four. Although your child can become a fund member, they cannot be a trustee of the FSF whilst they are under 18 years of age. In legal terms, the child is under a legal disability, meaning that someone else must act as trustee on their behalf. It is possible for you as parent (or guardian) to act as trustee of the fund in place of your child (including as a director of the corporate trustee). If you are a fund member, this essentially means that you wear two hats - you act as trustee for yourself as a member, and you also act on behalf of your child as well. Note, other issues need to be considered before allowing a child to become a fund member. empowering your financial evolution TM Page 4

5 Need more information? If you wish to discuss any aspect of your Family Super Fund, or you wish to consider how any of the topics outlined in this newsletter apply to you, please contact us on the details below. Important Note: the application of the topics discussed in this newsletter to your circumstances may be complex. Please contact our office before taking any action in relation any matters discussed in this newsletter p e Mammoth s Principal, Alex Morris is a FSF SPECIALIST ADVISOR TM., FSF SPECIALIST ADVISOR TM, SSA TM are marks owned by the FSF Professionals Association of Australia Limited (SPAA) and are awarded to individuals who successfully comply with all the initial and ongoing accreditation requirements of the SPAA Specialist Accreditation Program. General Advice Warning: The advice may not be suitable to you because it contains general advice that has not been tailored to your personal circumstances. Please seek personal financial advice prior to acting on the information. Tax Agent Warning: We are not registered tax agents under the Tax Agent Services Act If you intend to rely on the advice to satisfy liabilities or obligations or claim entitlements that arise, or could arise, under a taxation law, you should request advice from a registered tax agent. Opt Out Clause: Mammoth Financial respects your privacy. Should you wish not to receive further publications please contact our office. Page 5

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