Trustee responsibilities: The buck stops with you

So you have decided to set up a SMSF. More than one million people have already gone down this path. It can't be that difficult... right?

Well, it’s not, especially if you choose to get specialist advice. But trustees do have legal obligations and ultimately you are responsible for your SMSF – not your adviser.

To begin with there are five pieces of legislation and your trust deed you need to act in accordance with. That’s right, five: the Superannuation Industry (Supervision) Act 1993, the Superannuation Industry (Supervision) Regulations 1994, the Income Assessment Act 1997, the Tax Administration Act 1953 and the Corporations Act 2001, helping explain why the body of specialist advisers is growing apace as more people opt to establish SMSFs. [There are now more than 500,000 SMSFs and over 1 million members.]

The trust deed simply sets out the rules for establishing and operating your fund. In essence, it details the powers, duties and responsibilities of the trustee/s, the rights of the members and how the SMSF operates. It also has to be registered with the Australian Tax Office (ATO), as well as have a bank account in the name of the fund. [The account can’t be in your name or any other entity’s name.]

The other critical aspect of the trust deed is setting up your investment strategy. This is not something to be done on the back of an envelope; it needs to be written out comprehensively to be able to demonstrate that subsequent investment decisions comply with it as well as the laws governing superannuation.

Establishing a trust deed and devising an investment strategy, however, is the beginning of your SMSF journey, not the end. What follows is a check list of the requirements SMSF trustees must fulfil.

The fund can only be used for your retirement; it’s not there for trustees or members to dip in and out of. It’s called the sole purpose test and as the name suggests the sole purpose of your fund is to provide benefits to members on their retirement.

It’s important to keep proper records; they will ensure trustees can verify their decisions and an accurate history of the fund is established. Remember, too, a disqualified person can’t act as a trustee.

It’s imperative to keep your superannuation assets separate from your personal assets or the assets of any employer paying into the fund. Again, remember the sole purpose test; your SMSF assets are strictly for the retirement benefits of the fund members.

Using the fund to lend money to people (even if they are fund members) is taboo, and the regulator takes a very dim view of people who do so.

SMSFs are prohibited from borrowing money except in limited circumstances. Before considering taking out a loan (a limited recourse borrowing agreement) specialist advice should be sought – and heeded.

There are strict rules that prohibit trustees from acquiring assets from a related party in the fund. Also, in-house assets (a loan to or investment in a related party to the fund) can’t exceed 5% of the total assets of the fund.

All assets sold or bought by the fund have to be at market value. With publicly listed shares there is no issue about the market price; the issue becomes more complex when determining the market price becomes more problematic, such as property, unlisted shares or artwork.

All deductible contributions to the fund that are taxed at concessional tax rates must meet the limits as set out in the superannuation and tax laws; for those under 50 it is $30,000 and for those between 50 and 65, it’s $35,000. People exceeding these limits can be penalised. You can also put in non-deductible contributions of up to $180,000 each year or if you are under 65 you can make a non-deductible contribution of up to $540,000 over a fixed three year period beginning in the first year the contribution exceeds $180,000.

The regulator takes strong exception to people who access their superannuation before they are legally eligible. The legal age is 65 or retirement after reaching age 55, although it is possible to receive an income stream from age 55 as a transition to retirement pension. Only is special circumstances can the fund be accessed by a member before those times.

Finally, all lodgement and payment obligations to the ATO must be met on time, as well as recording all benefits paid to members.

As you can see what’s required is not particularly onerous; but is time consuming, and there are penalties for getting failing to do so. This is why many trustees, especially in the accumulation phase when they are still in the workforce, opt to have an SMSF specialist handle much of the workload. There is a cost involved but also a benefit – being able to sleep at night knowing your SMSF is in order.

Andrea Slattery, chief executive, SMSF Association 

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