Archived Posts Sitemap: Wills, Trusts, Super
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Posted 28th December 2010
Trustees and beneficiaries of Self Managed Super Funds (SMSF’s) should ensure that the Fund remains compliant at all times. During the 2009/2010 year, 185 SMSF’s were made non-complaint by the Tax Office for serious non-compliance with superannuation laws. The financial and other consequences of being made non-compliant are extremely significant and include the fund paying tax at the highest marginal tax rate on the total assets held, and any income earned, by the fund in the year the fund is made non-complying.
The main breaches giving rise to SMSF’s being made non-compliant were:
• Providing loans to related parties;
• Releasing superannuation early;
• Serious and significant breaches of the ‘in house asset’ rules; and
• Refusal by the trustees to lodge returns.
The ‘in-house asset’ rule states that your fund can only have 5% of its assets invested as in-house assets. This means that if your fund has $500,000 in assets, only $25,000 of those assets can be in-house assets. What is an in-house asset? An in-house asset is an asset that is:
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Posted 15th December 2010
• a loan to, or an investment in, a related party of the fund;
• an investment in a related trust of the fund; or
• an asset of the fund that is subject to a lease or lease arrangement between the trustee of the fund and a related party of the fund.
Is your self-managed superannuation fund deed up to date?
Superannuation is a rapidly changing area. Trustees must comply with both the superannuation law and the provisions of their trust deed. Trustees who act outside what the provisions of their trust deed allows may cause their fund to become non-complying and this could have adverse taxation consequences for the fund. It is therefore crucial that SMSF trustees invest the time to ensure that their deeds are regularly updated to ensure that they do not act outside the bounds of their authority conferred by the deed or outside the bounds of the superannuation law – simply because an outdated trust deed allows them to do so.
We are regularly asked to assess SMSF trust deeds to determine if they need to be updated in line with changes to the law. Unfortunately the answer is not straight forward.
Some changes to superannuation law will result in the necessity to update a deed and others may not. Sometimes, the need to update a deed will depend upon the specific provisions of each trust deed. However, to assist you to understand some of the key changes that have occurred in superannuation law in the past fifteen years and how these changes might affect your clients’ SMSF’s, we have developed a “ready reckoner” (click here) to assist you to determine if your client requires their SMSF Deed to be amended or updated. This is not a substitute for legal advice or a comprehensive review of the trust deed. However, it may assist you to recognise (and advise your clients on) situations where it would be prudent to have their deed reviewed and/or updated.
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Posted 19th November 2009