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Setting up a self managed superannuation fund
There are a number of trust laws and legislative requirements relating to setting up a self managed superannuation fund (SMSF). If you wish to set up your own fund it may be useful to consult with a professional adviser before committing to this option. Many accountants, solicitors and superannuation specialists have packages and 『kits』 available which simplify the process. This information is a guide to the steps involved.
Obtain a trust deed
The first thing you need to do is to have a trust deed prepared which evidences the existence of the trust and establishes the rules of operation for the fund. An accountant, solicitor or legal service company may prepare the deed. You should ensure that the deed is correctly drafted to achieve the fund』s objectives.
The trust deed may set out the following:
* details of who the trustees are;
* how trustees may be appointed or removed;
* the powers of trustees;
* eligibility for membership;
* conditions relating to acceptance of contributions;
* conditions for payment of benefits to members;
* procedures for winding up the fund;
* provisions relating to valuation of assets.
The deed must be dated and properly executed.
Corporations basis or Pensions basis?
In order to become a regulated fund (that is, a fund that has elected to be bound by the Superannuation Industry (Supervision) Act 1993 (SISA)), the trustee must ensure that the trust deed:
* requires the fund to appoint a corporate trustee (Corporations basis). A corporate trustee is subject to the requirements of the Corporations Law administered by the Australian Securities and Investments Commission (ASIC). A fund with a corporate trustee may pay benefits in the form of a lump sum; OR
* states that the sole or primary purpose of the fund is to provide old-age pensions (Pensions basis). The trust deed may also permit (but not compel) benefits to be paid as a lump sum. Under this option, the trustees may be individuals.
Appoint Trustees
All superannuation funds are required to appoint trustees. Trustees are responsible for ensuring the fund is properly managed and that it complies with SISA rules and broader legal obligations. To be an SMSF all fund members must be appointed as trustees of the fund.
Who can be a trustee?
Essentially anyone over the age of 18 can be a trustee of a superannuation fund unless they are a 『disqualified person』 under SISA. An individual is a 『disqualified person』 if:
* at any time, the person was convicted of an offence involving dishonesty; or
* at any time, the person has been subject to a civil penalty order under SISA; or
* the person is an insolvent under administration (e.g. an undischarged bankrupt).
A corporation would not be permitted to act as trustee if:
* a responsible officer of that company is a disqualified person (a responsible person includes a director, secretary or executive officer); or
* a receiver, official manager or provisional liquidator has been appointed to the company; or
* action has commenced to wind up the company.
Elect to become a regulated fund
A trustee must elect to be 『regulated』 under SISA if the fund wishes to receive concessional taxation treatment. The trustees of a new SMSF must within 60 days after establishment of the fund give the Regulator a notice of election to be a regulated superannuation fund.
Elections must be lodged with the Tax Office by completing an Application to Register for the New Tax System Superannuation Entity online at www.abr.gov.au or by completing the paper version of Application to Register for the New Tax System Superannuation Entity form. The form and instructions may be obtained by contacting the Small Business information line on 13 28 66 or from the Tax Office website.
Once a trustee has elected to become regulated, the decision cannot be reversed (that is, the fund would have to be wound up to cease to be regulated under SISA).
Obtain a Tax File Number (TFN)
A tax file number (TFN) is a unique number issued by the Tax Office for each taxpayer. The trustees of a superannuation fund must obtain a TFN for the fund from the Tax Office.
Since 1 November 1999, superannuation funds are allocated a TFN after lodgment of the Application to Register for the New Tax System form referred to above.
Obtain an Australian Business Number (ABN)
The Australian Business Number (ABN) is the new public identification system introduced to support business to government interactions across all agencies. An ABN will be allocated to new superannuation funds that complete an Application to Register for the New Tax System Superannuation Entity form.
Other considerations
Trustees should open the fund』s bank account (or other appropriate investments) in the name of the fund. The assets of the fund should be kept separate from any assets owned personally by any of the trustees or from those belonging to a business (where partners in a business set up the SMSF).
Trustees need to establish an appropriate investment strategy for the fund. This is discussed in the information titled Self managed superannuation funds—Investment Strategy and Investment Restrictions (NAT 2063).
In addition, trustees need to be aware there are numerous administrative obligations that must be met throughout the life of the fund. These are outlined in the information titled Self managed superannuation funds—Administrative Obligations (NAT 2064).
Need more information?
For further information on this topic:
* visit our website at www.ato.gov.au/super
* phone our information line on 13 10 20
* write to:
Australian Taxation Office
Superannuation Business Line
PO Box 277
WTC VIC 8005
If you do not speak English well and want to talk to a Tax Officer, phone the Translating and Interpreting Service on 13 14 50 for help with your call.
People with a hearing or speech impairment with access to appropriate teletypewriter (TTY) or modem equipment, phone 13 36 77. If you do not have access to TTY or modem equipment, phone the Speech to Speech Relay Service on 1300 555 727. |
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