The kind of people who choose to run their own self-managed fund are those who want a higher level of control over their superannuation. This also extends to the name of their fund.
A super fund doesn’t need a name under the common law; no trust does. A trust is not a legal entity; it is a relationship. It is one entity (trustee) holding an asset for the benefit of another entity (beneficiary). Specific relationships don’t need names.
SMSF names must be usable by third-party providers and their computer systems.
But just because superannuation funds don’t require a name in common law doesn’t mean they don’t require a name at all to be legally compliant. The ATO, the banks, SMSF providers and other service providers require a name for the fund to work. These third parties will require the fund to have a name so they can process the fund’s needs.
ATO: Chief among these, of course, is the Tax Office, which requires the fund to have a name in order to be duly registered and put up onto Super Fund Lookup.
Banks: Then there are the banks and financial institutions that can’t open a superannuation account unless the fund has a name that can fit into their systems and protocols.
Others: After that comes fund managers, life offices, stockbrokers and the myriad of other suppliers to the fund that want to be able to refer to the fund efficiently.
Now that we understand that the requirement to name the fund is more practical than legal, what things should be considered when choosing a name for an SMSF? SMSFs don’t carry on business, so the rules that often apply in the business context are not as relevant when it comes to an SMSF. That’s why the members of those funds can get away with choosing their funny names. That’s not to say that there are no rules at all; it’s just that the rules that apply will be those dictated by other pieces of legislation and the common law.
It would be unwise to choose a name that:
• is obscene;
• is seditious;
• is defamatory;
• suggests connection with royalty or government;
• is misleading or deceptive; or
• is the same as an unrelated commercial enterprise.
From a practical point of view perhaps it might be best to:
• use a short name;
• don’t bother with ‘The’;
• use ‘Super’ in preference to ‘Superannuation’; and
• not use a name that readily identifies the members or connection with the member’s business.
Best to keep the fund name simple and practical for all parties.
While SMSF trustees want control and that might lead them to consider whimsical names such as ‘Just Dreaming Super Fund’, it would be best to stay simple and practical when naming the fund.
Peter Townsend, principal, Townsends Business and Corporate Lawyers