# Practicalities involved in running own SMSF



## jorgon

Hi all

I have two questions about how an SMSF might work in practice, but I need to explain first why I am asking the questions.

I'm a Pom lawyer coming to Australia to live and I will need to transfer my pension fund to a SMSF.  Being a control freak, I'm just looking at the practicalities of setting up the SMSF myself, registering it as a QROPS (Qualifying Registered Overseas Pension Scheme) to satisfy the UK tax authorities, and also organising the SMSF myself on an annual basis right up to submitting the accounts and proposed tax return to the auditors ready for the submission to the ATO.  I am aware from other threads and from my research of the amount of work and the pitfalls involved, and the need for 100% accuracy so there is no need to warn me about that.  But I do prefer to blame myself if something inadvertently goes wrong, rather than taking the can for someone else's mistake.  And so far I have found (as is often the case) that there is a considerable amount of mystery and vagueness generated by the "experts" when in fact when you go to the core documentation, things can be fairly readily understood.  Apart from my two questions, that is!

In the UK half of my pension fund is in a SIPP (Self Invested Pension Fund) which I manage.  A SIPP seems very like an SMSF except that in a SIPP the trustees are independent and themselves report to the tax authority.  The SIPP member cannot have any input into this.  I believe the reporting requirements must be much less onerous than in Australia because SIPP fees in the UK are very low, in fact I know one SIPP provider which does not charge any fees at all - relying only on commission from the linked online brokers!

Where I am having difficulty is in looking ahead to when I have my SMSF organised and funded and the mechanisms involved in using the online brokers.  

I've been looking at the online brokers available to Australian residents and as mentioned by forum contributors the fees for international trades seem to be pretty outrageous.  So if possible I would wish to set up a dealing account for my SMSF with my existing online broker in the UK.  This broker would have a base currency in pounds sterling.

Question 1
So my first question is, does anyone with a SMSF in Australia use:-
(a) an overseas online broker; or
(b) an online broker whose base currency is not Australian dollars; and
(c) if so does this cause any problems for the SMSF?

Question 2
Suppose my SMSF is called "D. Duck Super Fund".  Has anyone had any difficulty registering a dealing account with an online broker in such a non-natural name as "D. Duck Super Fund" and has this caused difficulties with providing ID etc?  If so it might be better for me to use a corporate trustee when setting up the SMSF.

Judging from the posts on this forum there is probably expertise to answer these questions and if so I would very much appreciate it.


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## pixel

jorgon said:


> Hi all
> 
> I have two questions about how an SMSF might work in practice, but I need to explain first why I am asking the questions.
> 
> I'm a Pom lawyer coming to Australia to live and I will need to transfer my pension fund to a SMSF.  Being a control freak, I'm just looking at the practicalities of setting up the SMSF myself, registering it as a QROPS (Qualifying Registered Overseas Pension Scheme) to satisfy the UK tax authorities, and also organising the SMSF myself on an annual basis right up to submitting the accounts and proposed tax return to the auditors ready for the submission to the ATO.  I am aware from other threads and from my research of the amount of work and the pitfalls involved, and the need for 100% accuracy so there is no need to warn me about that.  But I do prefer to blame myself if something inadvertently goes wrong, rather than taking the can for someone else's mistake.  And so far I have found (as is often the case) that there is a considerable amount of mystery and vagueness generated by the "experts" when in fact when you go to the core documentation, things can be fairly readily understood.  Apart from my two questions, that is!
> 
> In the UK half of my pension fund is in a SIPP (Self Invested Pension Fund) which I manage.  A SIPP seems very like an SMSF except that in a SIPP the trustees are independent and themselves report to the tax authority.  The SIPP member cannot have any input into this.  I believe the reporting requirements must be much less onerous than in Australia because SIPP fees in the UK are very low, in fact I know one SIPP provider which does not charge any fees at all - relying only on commission from the linked online brokers!
> 
> Where I am having difficulty is in looking ahead to when I have my SMSF organised and funded and the mechanisms involved in using the online brokers.
> 
> I've been looking at the online brokers available to Australian residents and as mentioned by forum contributors the fees for international trades seem to be pretty outrageous.  So if possible I would wish to set up a dealing account for my SMSF with my existing online broker in the UK.  This broker would have a base currency in pounds sterling.
> 
> Question 1
> So my first question is, does anyone with a SMSF in Australia use:-
> (a) an overseas online broker; or
> (b) an online broker whose base currency is not Australian dollars; and
> (c) if so does this cause any problems for the SMSF?
> 
> Question 2
> Suppose my SMSF is called "D. Duck Super Fund".  Has anyone had any difficulty registering a dealing account with an online broker in such a non-natural name as "D. Duck Super Fund" and has this caused difficulties with providing ID etc?  If so it might be better for me to use a corporate trustee when setting up the SMSF.
> 
> Judging from the posts on this forum there is probably expertise to answer these questions and if so I would very much appreciate it.




G'Day jorgon;

Can't help you authoritatively with Q1, although it is my strong belief that a SF Trust Deed is able to allow investing/trading in Overseas shares. I would recommend you see a professional outfit that helps you set up a Deed. When I did that earlier this year, it set me back about $800 - money well spent.
If you wish, PM me and I'll give you my Consultant's contact details.

"D.Duck Superfund" is hardly am objectionable name. Having "Superfund" as part of the name will help; in the end, it's not the name, but the certification by the relevant Government Department. 
One detail *might* cause you a limited amount of grief: I have noticed on occasion that an electronic Bank Transfer "complained" when I used non-alphanumericals in descriptions, including account name fields. For example, "His & Hers Account" was rejected until I dropped the '&' or replaced it by the word 'and'. But then, the transaction went through even though the account name was no longer a 100% match.


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## awg

I would email your enquiry to a few SMSF specialists in Australia, and see what response you get.

I cant see why you cant do what you stated.

I definitely would get some advice, to ensure ALL requirements were in place, even via APRA or ATO.

(you can seek a "binding ATO ruling" in writing within 28 days), although assuming a non-citizen, that option may not be available to you yet


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## jorgon

> I would recommend you see a professional outfit that helps you set up a Deed. When I did that earlier this year, it set me back about $800 - money well spent.  If you wish, PM me and I'll give you my Consultant's contact details.



Thanks for the suggestion pixel, however I am well used to drafting such documents and I have already started it.  Also I have read that some such documents are simply copies of others and have therefore missed out some required material, or included unnecessary material, as the law has changed.  If I purchased a deed I would have to check it over and compare it with the legislative requirements, so I might as well write my own.  Anyway it also needs to comply with UK pension tax law to enable me to transfer my pension fund.



> (you can seek a "binding ATO ruling" in writing within 28 days), although assuming a non-citizen, that option may not be available to you yet



Thanks awg, however it is my understanding that anyone can ask for an ATO Private Ruling - after all, you don't have to be an Australian citizen to be liable to Australian tax.


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## SuperKeep

jorgon said:


> Hi all
> 
> I have two questions about how an SMSF might work in practice, but I need to explain first why I am asking the questions.
> 
> I'm a Pom lawyer coming to Australia to live and I will need to transfer my pension fund to a SMSF.  Being a control freak, I'm just looking at the practicalities of setting up the SMSF myself, registering it as a QROPS (Qualifying Registered Overseas Pension Scheme) to satisfy the UK tax authorities, and also organising the SMSF myself on an annual basis right up to submitting the accounts and proposed tax return to the auditors ready for the submission to the ATO.  I am aware from other threads and from my research of the amount of work and the pitfalls involved, and the need for 100% accuracy so there is no need to warn me about that.  But I do prefer to blame myself if something inadvertently goes wrong, rather than taking the can for someone else's mistake.  And so far I have found (as is often the case) that there is a considerable amount of mystery and vagueness generated by the "experts" when in fact when you go to the core documentation, things can be fairly readily understood.  Apart from my two questions, that is!
> 
> In the UK half of my pension fund is in a SIPP (Self Invested Pension Fund) which I manage.  A SIPP seems very like an SMSF except that in a SIPP the trustees are independent and themselves report to the tax authority.  The SIPP member cannot have any input into this.  I believe the reporting requirements must be much less onerous than in Australia because SIPP fees in the UK are very low, in fact I know one SIPP provider which does not charge any fees at all - relying only on commission from the linked online brokers!
> 
> Where I am having difficulty is in looking ahead to when I have my SMSF organised and funded and the mechanisms involved in using the online brokers.
> 
> I've been looking at the online brokers available to Australian residents and as mentioned by forum contributors the fees for international trades seem to be pretty outrageous.  So if possible I would wish to set up a dealing account for my SMSF with my existing online broker in the UK.  This broker would have a base currency in pounds sterling.
> 
> Question 1
> So my first question is, does anyone with a SMSF in Australia use:-
> (a) an overseas online broker; or
> (b) an online broker whose base currency is not Australian dollars; and
> (c) if so does this cause any problems for the SMSF?
> 
> Question 2
> Suppose my SMSF is called "D. Duck Super Fund".  Has anyone had any difficulty registering a dealing account with an online broker in such a non-natural name as "D. Duck Super Fund" and has this caused difficulties with providing ID etc?  If so it might be better for me to use a corporate trustee when setting up the SMSF.
> 
> Judging from the posts on this forum there is probably expertise to answer these questions and if so I would very much appreciate it.




Hi there Jorgon,

Let me try my best to answer your questions:

1. YES, I've prepared accounts for a few funds (SMSFs) with:
1a. US-based online brokerage (trading shares and writing covered-options)
1b. US-based online brokerage with USD base currency, paid (and received) via TT from AUD-based bank account
1c.1. YES, in terms of preparing the accounts, as you would have to translate every purchases and sales of securities, and interests earned (on the broker's cash account) into AUD. (ATO link: http://www.ato.gov.au/businesses/content.asp?doc=/content/34749.htm)
1c.2. YES, in terms of potentially realizing a foreign exchange gains/losses (and paying tax for it) without necessarily making any profit from your trading (ATO Link: http://www.ato.gov.au/businesses/content.asp?doc=/content/41178.htm)
1c.3.As long as you 'use' the trading account in accordance with the 'sole purpose' test (ATO link: http://www.ato.gov.au/superfunds/content.asp?doc=/content/00251857.htm&page=25), then you should be okay.

2a. Quoting pixel: "Having "Superfund" as part of the name will help" <--- I agree!
2b.1. Having a corporate trustee for a super fund WILL help everybody (and I mean everybody!). Google "special purpose company smsf" and you will find some reasons from credible sources. 
2b.2. A "special purpose company" will be more suitable as its annual ASIC fees will be lower than that of a 'normal' company (ASIC Link: http://www.asic.gov.au/asic/asic.nsf/byheadline/Special+purpose+companies?openDocument).

All the best there, Jorgon!

Disclaimer:
This is not an advice, just a friendly knowledge sharing


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## KurwaJegoMac

That's a ripper first post Superkeep. Thank you for your contribution and welcome to the forum.


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## jorgon

Hi SuperKeep
Thank you for your *really helpful answer* - I held off replying until now, so I would have something material to say.  

Well, I created all my own documents and successfully set up my SMSF fund.  Obtaining QROPS recognition was a doddle.

I decided to try to find an online broker outside Australia which would take my SMSF (which has a corporate trustee).  This was quite tricky - I could find only one UK based broker which would take a foreign company.  This was NatWest stockbrokers but they have been extremely inefficient in dealing with the application and it is still in the pipeline, so I opened an account with Interactive Brokers for my fund. 

There will be several transactions within my fund over the year, mostly in GBP or USD.  It would be very tedious to have to convert each one separately into AUD at the exchange rate which applied at the time of the transaction as the "general translation rule" would seem to require (your first helpful ATO link).  

So I am hoping that I can do separate accounts for the whole year in the respective currencies, and convert the "opening" and "closing" figures using the "averaging rates" published by the ATO.  See http://www.ato.gov.au/individuals/content.aspx?doc=/content/57624.htm.  However, since you didn't mention this option, am I right to have doubts whether this will be feasible as a matter of accounting?

On the name question, having now filled out all the forms, registered my fund with the ATO, obtained an ABN and TFN and having obtained bank, money exchange and stockbrokers accounts, I do think that it is a good idea to call the corporate trustee something which demonstrates clearly that it is a trustee.  For example "The Trustee of D.Duck Super Fund Pty Ltd" or "D.Duck Super Fund Trustee Pty Ltd".  This would help to explain the distinction between the fund itself "D.Duck Super Fund" and the corporate trustee.

Best regards ..


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## Julia

I have been considering changing the structure of my SMSF from two members/trustees to a corporate trustee.

Before going ahead I've checked with the financial institutions with whom I have accounts, e.g. term deposits/online accounts in case changing the structure (effectively changing the ownership even though the fund name remains the same) to see if this would affect existing investments.

Answer is yes.  e.g. term deposits would not only be cancelled but would be subject to penalty.

Obviously I won't be going ahead under this circumstance, i.e. just on the term deposits losing 8% p.a. plus whatever the penalty is, and having to start over at much lower rate.

Thought I'd post it here as something to consider for anyone else thinking about doing anything similar.  The same would apparently apply if I just change the second trustee!


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## Ves

Julia said:


> Before going ahead I've checked with the financial institutions with whom I have accounts, e.g. term deposits/online accounts in case changing the structure (effectively changing the ownership even though the fund name remains the same) to see if this would affect existing investments.



I am in the middle of this with some clients at work. Not being a financial planner (I'm an SMSF accountant) the amount of paperwork and the exactitude of it to merely change a trustee from individuals to corporate is mind-boggling.  

Quite a lengthy process if you do not do it regularly. I would highly recommend using a corporate trustee, though, it is far more flexible in terms of estate (ie. succession of trustees) and in the case that you need to add a member. Certainly give it another go once your term deposits mature, although, at 8% p.a they must be longer than the standard 6-12 month period?


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## Julia

Ves said:


> I am in the middle of this with some clients at work. Not being a financial planner (I'm an SMSF accountant) the amount of paperwork and the exactitude of it to merely change a trustee from individuals to corporate is mind-boggling.
> 
> Quite a lengthy process if you do not do it regularly. I would highly recommend using a corporate trustee, though, it is far more flexible in terms of estate (ie. succession of trustees) and in the case that you need to add a member. Certainly give it another go once your term deposits mature, although, at 8% p.a they must be longer than the standard 6-12 month period?



Thanks, Ves.  Have had three quotes for making the change, ranging from $1100 all up to around $1400.
Would go to the specialist lawyers who did the original Trust Deed as they are doing this all the time, as you point out.  
I now wish I'd gone the corporate trustee structure in the first place for the reason you offer.  Always better not to have the involvement of any other person and the potential complications should that person drop dead or whatever.

Out of interest, Ves, if a client were consulting you about making this change, would you advise them to check whether their existing investments would be affected?
I'm a bit surprised that neither of the two accountants with whom I've discussed this has even raised it!

Yes, the 8% is for five years.


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## Ves

Julia said:


> Thanks, Ves.  Have had three quotes for making the change, ranging from $1100 all up to around $1400.
> Would go to the specialist lawyers who did the original Trust Deed as they are doing this all the time, as you point out.
> I now wish I'd gone the corporate trustee structure in the first place for the reason you offer.  Always better not to have the involvement of any other person and the potential complications should that person drop dead or whatever.
> 
> Out of interest, Ves, if a client were consulting you about making this change, would you advise them to check whether their existing investments would be affected?
> I'm a bit surprised that neither of the two accountants with whom I've discussed this has even raised it!
> 
> Yes, the 8% is for five years.



Whilst we cannot give specific investment advice as accountants (without a financial services licence), we can provide facts around what could happen to an investment if this change was made. The problem in practice is that most accountants would have no idea, unless they deal with this on a regular basis. I have, for instance, seen other accountants advise that if you want a company structure you will need to set-up an entirely new fund to be able to change the shares in a Commsec account to reflect the new trustee name! (Not to mention that they were ignorant of the capital gains impact, the implications and documentation required to set-up and roll benefits into a new fund). This could potentially cost the client thousands of dollars (a lot more if they are sitting on massive capital gains). Just be careful who you take advice from, always get a second opinion if unsure.

Sometimes taking the "cheap" advice option costs you more in the long run.


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## pixel

In case you missed it or don't subscribe to regular emails: New legislation will make SMSF even more complex (and expensive)

http://www.ato.gov.au/individuals/content.aspx?menuid=0&doc=/content/00200258.htm&page=6&H6


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## Julia

Update to my post of yesterday, I decided to check with the local Branch Manager.
She was unsure and has since checked and got back to me with assurance that they would simply register the change on the existing accounts (on sighting certified copy of trustee change) and the accounts would not be at all affected.

To be sure, I've now written an old fashioned letter to SUN legal department asking for this in writing.

Pretty amazing the different advice that the same organisation can hand out.


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## village idiot

I am setting up a SMSF right now, and this thread has at least caused me to have another look at the trustee issue, so thanks for that.

I had a look at the reasons posted by Julia & vespuria for having a corp trustee. From what I can gather the advantages (over personal trustees) are in the case where;
1. you want to add new members who would have to become trustees which would entail changing the names on all accounts held and even on each individual shareholding?
2. Either myself or the wife dies, which would mean a new trustee would be required, again involving changing names on all accounts
3. We split up and want to divide the super up, as well as changing the trustee and again names on all accounts. 
anything else?

On the other side of the ledger we have the costs of maintaining a corporate trustee, which from previous experience is ASIC fee ($212 pa?) + provision of regd office if your accountant does that ($300 pa) + another layer of accounts/returns for your accountant to charge for say $300 conservatively. plus a bit of extra paperwork for you to deal with each year. 

say that comes to $800 pa conservatively , plus $1000 set up costs. all of which could otherwise be invested and compounding up at whatever rate of return you achieve in your SMSF.  

obviously the likelyhood of any of the events above occuring varies with the individual, but assuming most people arent planning on any of them for a while. lets say that some sort of restructure is required in 10 years. after 10 years your super balance will be some 16k (the above costs compounded at 10%pa) worse off with a corporate trustee  v an individual one. So if you stick with individual trustees and you have to do a restructure after 10 years, the extra paperwork and accountants fees involved would have to be worth more than 16k for you to be better off with the corporate trustee? Is that likely?

Since i doubt the hassle of some paperwork and accountants fees can be worth more than say 3 or 4k, the breakeven point is probably as short as  2 or 3 years. I would say the average time before a restucturing event would be longer than this,  and for some it may be as long as 30/40 years before it happens


seems to me the choice is between a *possible* 3k cost + hassle at some point in the future, or a *certain* cost each year  which with opportunity cost is going to add up pretty quickly.

From a strictly financial viewpoint therefore my assessment is that personal trustees beat corporate trustee


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## Boggo

village idiot said:


> On the other side of the ledger we have the costs of maintaining a corporate trustee, which from previous experience is ASIC fee ($212 pa?) + provision of regd office if your accountant does that ($300 pa) + another layer of accounts/returns for your accountant to charge for say $300 conservatively. plus a bit of extra paperwork for you to deal with each year.




Shop around, these are the figures I have been quoted by my accountant for two of the items you mention.

_Once the company is set up the Annual fees are as follows:
-       $41 ASIC Fees
-       $198 Accounting Fee_


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## village idiot

Boggo said:


> Shop around, these are the figures I have been quoted by my accountant for two of the items you mention.
> 
> _Once the company is set up the Annual fees are as follows:
> -       $41 ASIC Fees
> -       $198 Accounting Fee_




ah yes, have just looked up ASIC  and I see it can be a 'special purpose company' trustee for which the fee is currently $42..

thanks


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## YELNATS

Julia said:


> Update to my post of yesterday, I decided to check with the local Branch Manager.
> She was unsure and has since checked and got back to me with assurance that they would simply register the change on the existing accounts (on sighting certified copy of trustee change) and the accounts would not be at all affected.
> 
> To be sure, I've now written an old fashioned letter to SUN legal department asking for this in writing.
> 
> Pretty amazing the different advice that the same organisation can hand out.




I think this advice is pretty much correct since the fund itself isn't changing, the only change is the trustee.

I went through a similar process myself with my own SMSF 2-3 years ago. My fund was initially set up by my accountant about 10 years ago with my retail trading company as the trustee of the SMSF. 

Based on a more recent recommendation by my accountant, 2-3 years ago we set up another separate company whose sole purpose was to be the trustee of the SMSF.

In making this change, there were no capital gains/losses implications for the SMSF shareholdings or its term deposits, or other assets held. However, there was quite a bit of work involved on my part to gather all the necessary documents and to have them certified by a JP etc. to achieve this, which I did without any monetary cost, only a cost to me in terms of my own time.

One downside was that I was a bit tardy updating one of the bank accounts. As my accountant is also the licensed SMSF auditor he was duty-bound to report this to the ATO and as a result I received a minor infraction notice from the ATO. However, it was a mere "slap on the wrist" and has since been corrected.

More recently I have become concerned at the federal governments' penchant to discourage savings in super by hitting super members who save more than $500,000 in their fund. Refer to this link. http://www.superguide.com.au/boost-...ntributions-over-50s-concessional-cap-10-q-as

I hope this will never become law, at least not in its currently mooted form.


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## YELNATS

village idiot said:


> ah yes, have just looked up ASIC  and I see it can be a 'special purpose company' trustee for which the fee is currently $42..
> 
> thanks




That's right and after set-up it should be the only ongoing cost since it does not need to prepare annual accounts (ie. no P&L's or Balance Sheets needed) or to lodge tax returns.


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## Julia

village idiot said:


> I had a look at the reasons posted by Julia & vespuria for having a corp trustee. From what I can gather the advantages (over personal trustees) are in the case where;
> 1. you want to add new members who would have to become trustees which would entail changing the names on all accounts held and even on each individual shareholding?
> 2. Either myself or the wife dies, which would mean a new trustee would be required, again involving changing names on all accounts
> 3. We split up and want to divide the super up, as well as changing the trustee and again names on all accounts.
> anything else?



All valid reasons.  For me it's simply the desire to have no other person involved.




> On the other side of the ledger we have the costs of maintaining a corporate trustee, which from previous experience is ASIC fee ($212 pa?)



Since clarified by others and should probably be $41 if special purpose company.
This is cheaper than the ASIC supervisory levy of I think about $180 (unless one has to pay that as well?)



> + provision of regd office if your accountant does that ($300 pa)



Why would you need this?  I can't see why it can't be run from one's own home as it is now with the two trustees and with no additional cost.



> + another layer of accounts/returns for your accountant to charge for say $300 conservatively.



There is no extra layer of accounts for the accountant to complete.  Nothing will change in terms of the function and operation of the fund or its investments.



> plus a bit of extra paperwork for you to deal with each year.



I can't see where there will be any significant extra paperwork once the change has been made.  It's effectively just a change of ownership of the same entity.



> say that comes to $800 pa conservatively , plus $1000 set up costs. all of which could otherwise be invested and compounding up at whatever rate of return you achieve in your SMSF.



As above, I can't see that you have any real basis for assuming the costs you have.
Happy to be corrected if my own assumptions are not right.

Further, any cost for such a change of structure, if one has a decent sized fund, is unimportant if the underlying objective is going to be an improvement.




YELNATS said:


> I think this advice is pretty much correct since the fund itself isn't changing, the only change is the trustee.
> 
> I went through a similar process myself with my own SMSF 2-3 years ago. My fund was initially set up by my accountant about 10 years ago with my retail trading company as the trustee of the SMSF.



Thanks for that, Yelnats.  It does make sense.



> Based on a more recent recommendation by my accountant, 2-3 years ago we set up another separate company whose sole purpose was to be the trustee of the SMSF.



So this would be the sole purpose company with the attached $41 fee for ASIC?




> In making this change, there were no capital gains/losses implications for the SMSF shareholdings or its term deposits, or other assets held. However, there was quite a bit of work involved on my part to gather all the necessary documents and to have them certified by a JP etc. to achieve this, which I did without any monetary cost, only a cost to me in terms of my own time.



Sure, and then when the documentation is done it's going to be necessary to send copies with accompanying letters to all financial institutions, share registries etc.
Probably only a few hours' work all up.




> One downside was that I was a bit tardy updating one of the bank accounts. As my accountant is also the licensed SMSF auditor he was duty-bound to report this to the ATO and as a result I received a minor infraction notice from the ATO. However, it was a mere "slap on the wrist" and has since been corrected.



Wasn't the main question here why your accountant didn't pick this up when preparing the financial statements?

It may be a bit paranoid of me, but I'm happier with the auditor being completely separate from the accountant.

Is there anyone who has a corporate trustee who could point out any disadvantage not so far considered?  awg, if you're around, I think you use a corp. trustee?


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## village idiot

thanks for your comments everyone.

re the costs; I had a couple of these companies that only acted as trustees for trusts through which I ran a business up till a couple of years ago, and these were the actual costs of running them;
- the ASIC fee $212 was the actual cost at the time, others have since nailed that there is a cheaper version that  i wasnt aware of for the current purpose
- i cant remember why the regd office address was the accountants, other than the accountants suggested it and I took their word for it (i was younger then..). The $300 pa was their yearly fee which included sending out the minutes of the agm and , well thats about it
- I checked my old accounts and there were tax returns for the companies, and tax returns dont fill themselves in for free, not by accountants anyway. I dont know exactly what the cost for that was as the bills covered multiple entities, so i just picked an amount equating to about one hour per year of an accountants time, which might be an exageration but not a huge one 

However I now know that the asic fee is $42, and there isnt anything else invloved that one couldnt do ones self, so happy to accept that I was wrong about the costs.  So I would call that a success


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## jorgon

Ves; said:
			
		

> I have, for instance, seen other accountants advise that if you want a company structure you will need to set-up an entirely new fund to be able to change the shares in a Commsec account to reflect the new trustee name!  (Not to mention that they were ignorant of the capital gains impact, the implications and documentation required to set-up and roll benefits into a new fund).



There would seem to be two ways to achieve a change from individual trustees to a corporate trustee.  First way: keep the existing fund with its existing TFN and ABN but change the structure from individual trustees to corporate trustee, transferring all the assets from the individual trustees to the corporate trustee.  And second way: start an entirely new fund, register it with the ATO and get a new TFN and ABN for it and transfer-in to the new fund all the assets from the individual trustees.  Either way the assets could be transferred _in specie_ provided the new trust deed permits this as it should do, so the assets would not have to be sold.  And either way you would need a completely fresh trust deed.  This is because the wording of an SMSF trust deed which uses a corporate trustee is necessarily different in many respects from the wording of an SMSF trust deed which uses individual trustees.



			
				Julia; said:
			
		

> (The) term deposits would not only be cancelled but would be subject to penalty.  Obviously I won't be going ahead under this circumstance, i.e. just on the term deposits losing 8% p.a. plus whatever the penalty is, and having to start over at much lower rate.
> 
> I now wish I'd gone the corporate trustee structure in the first place for the reason you offer.  Always better not to have the involvement of any other person and the potential complications should that person drop dead or whatever.



There is no reason why you can't be a member of two SMSFs at the same time, so you can form a new SMSF with a corporate trustee, and then transfer-in from your existing SMSF those assets which will incur no penalty on change of ownership (and you need to check that the trust deed of the existing SMSF permits this, and also check any tax implications).
Then when your term deposits mature, you can transfer-in that money.  Finally you can close the existing SMSF.
You would have two lots of accountants and auditors fees for a while, but whether this is prohibitive depends on the size of your funds.  Or perhaps your usual accountant and auditor would offer reduced fees for each?



			
				Julia; said:
			
		

> Is there anyone who has a corporate trustee who could point out any disadvantage not so far considered?



I would generally agree that a corporate trustee is better for the reasons given.  However there is one reason not to have a corporate trustee not mentioned so far: you cannot have minor children as members of an SMSF with a corporate trustee.



			
				village idiot; said:
			
		

> However I now know that the asic fee is $42, and there isnt anything else invloved that one couldnt do ones self, so happy to accept that I was wrong about the costs. So I would call that a success



Actually the additional fees involved are the one-off ASIC fee of $426 to register the corporate trustee as a company (this went up from $412 on 1 July), and the annual review fee of $42 (up from $41 on 1 July).
I would agree that your home can be the registered office, indeed I would say this is preferable if you control the company because it means that you will receive all formal documents directly.  You just have to remember to register a change with the ASIC if you move house so that the details are changed on the register.


----------



## village idiot

jorgon said:


> I would generally agree that a corporate trustee is better for the reasons given.  However there is one reason not to have a corporate trustee not mentioned so far: you cannot have minor children as members of an SMSF with a corporate trustee.
> 
> .




This is an interesting point; could anyone elaborate on any advantages (and disadvantages) to having your minor children as members of an SMSF ?

I have 2 minor children, but I hadnt seen any advantages to having them as members while still minors and not earning. There may certainly be advantages is adding them later on, but this is where setting it with a corp trustee now facilitates that some time in the future. 

thanks


----------



## Julia

jorgon said:


> There would seem to be two ways to achieve a change from individual trustees to a corporate trustee.  First way: keep the existing fund with its existing TFN and ABN but change the structure from individual trustees to corporate trustee, transferring all the assets from the individual trustees to the corporate trustee.



This is what I have in mind.


> And second way: start an entirely new fund, register it with the ATO and get a new TFN and ABN for it and transfer-in to the new fund all the assets from the individual trustees.  Either way the assets could be transferred _in specie_ provided the new trust deed permits this as it should do, so the assets would not have to be sold.  And either way you would need a completely fresh trust deed.  This is because the wording of an SMSF trust deed which uses a corporate trustee is necessarily different in many respects from the wording of an SMSF trust deed which uses individual trustees.



Useful information, jorgon, thank you.




> There is no reason why you can't be a member of two SMSFs at the same time, so you can form a new SMSF with a corporate trustee, and then transfer-in from your existing SMSF those assets which will incur no penalty on change of ownership (and you need to check that the trust deed of the existing SMSF permits this, and also check any tax implications).
> Then when your term deposits mature, you can transfer-in that money.  Finally you can close the existing SMSF.



I would definitely not want to create a new fund and have all the extra work and expense of having two concurrent funds.

I'm also a bit confused about this suggestion in light of your having suggested above that the assets can be transferred in specie without implying change of ownership.
i.e. why would you create a new fund just to hold the existing term deposits if no penalty is incurred in the first alternative?

Btw, on that, given I received a different response from the SUN call centre and the local branch manager, I've written to SUN head office legal department requesting a definitive answer.
ANZ and Rabodirect have both said no problem, they will simply alter the name on the account.



> I would generally agree that a corporate trustee is better for the reasons given.  However there is one reason not to have a corporate trustee not mentioned so far: you cannot have minor children as members of an SMSF with a corporate trustee.



Would have no intention of involving any children or any other person.



> Actually the additional fees involved are the one-off ASIC fee of $426 to register the corporate trustee as a company (this went up from $412 on 1 July), and the annual review fee of $42 (up from $41 on 1 July).
> I would agree that your home can be the registered office, indeed I would say this is preferable if you control the company because it means that you will receive all formal documents directly.  You just have to remember to register a change with the ASIC if you move house so that the details are changed on the register.



 OK, thanks for that also.  I hadn't discovered the ASIC fee of $426 but am not surprised.


----------



## awg

Julia said:


> Is there anyone who has a corporate trustee who could point out any disadvantage not so far considered?  awg, if you're around, I think you use a corp. trustee?




Only one major problem, 

that is that most financial institutions will classify you as a "business" because "pty ltd" is on the title, therefore it is much harder to get the best rate of interest on cash/term deposits.

Also very time consuming and seriously annoying to deal with the extra layer of paperwork, and the fact that the majority of operatives at most places are too inexperienced to even know what you are talking about, corporate trustee, let alone how their own organisation deals with them...( yes jan, they are all different).

(there are details on another thread) 

here is some unreserved ADVICE...select a SHORT title for your trustee & smsf names 

You can also google "corporate trustee smsf" etc and get other details

In summary, if you want complete control , and no mucking about with other peeps signatures, or are sole, corporate is ideal.

Also if you retain substantial share holdings in your own name, I am led to beleive that life is simpler with corporate trustee smsf


----------



## YELNATS

jorgon said:


> And second way: start an entirely new fund, register it with the ATO and get a new TFN and ABN for it and transfer-in to the new fund all the assets from the individual trustees.  Either way the assets could be transferred _in specie_ provided the new trust deed permits this as it should do, so the assets would not have to be sold.
> 
> I would generally agree that a corporate trustee is better for the reasons given.  However there is one reason not to have a corporate trustee not mentioned so far: you cannot have minor children as members of an SMSF with a corporate trustee.




On the first point, I would have thought any transfer of assets from the first SMSF with its' own TFN and ABN to a separate SMSF with a different TFN and ABN would be deemed by the ATO to be a "sale", whether the sale is undertaken either via on-market or off-market processes, with therefore potential capital gains/losses tax implications.

With ATO approval, for several years I have operated my SMSF with a corporate trustee with 4 members, myself, my wife, my son and my daughter. For a few of those years my daughter was under 18 years, ie. then still a "minor". During those years myself, my wife and my son were directors of the trustee company. When she reached 18 years my daughter also became a director of the trustee company and received literature from the ATO to this effect. This seems to indicate that you can have minor children as members of an SMSF with a corporate trustee.


----------



## jorgon

YELNATS said:


> With ATO approval, for several years I have operated my SMSF with a corporate trustee with 4 members, myself, my wife, my son and my daughter. For a few of those years my daughter was under 18 years, ie. then still a "minor". During those years myself, my wife and my son were directors of the trustee company. When she reached 18 years my daughter also became a director of the trustee company and received literature from the ATO to this effect. This seems to indicate that you can have minor children as members of an SMSF with a corporate trustee.



The problem about having minor children as members of an SMSF with a corporate trustee has only recently been recognised by the ATO.  It was raised in the National Tax Liaison Group (NTLG) Superannuation Technical Sub-group (STS) meeting of September 2010 (item 6.8).  The sub-group is made up of ATO officers and superannuation tax professionals and regularly meets to discuss superannuation tax matters.  

In the meeting, the ATO stated "we do not consider that it is within the scope of (the legislation) to regard a fund as an SMSF if it has members who are under 18 years, a corporate trustee and the parent/guardian is not a legal personal representative".  It stated that it was aware of less than 50 funds that may be in the position of effectively being treated as SMSFs even though they have members under 18 years of age and a corporate trustee in place and that it intended to resolve the issues with these funds "within the next six to nine months".  

In other words, these funds may not have been operating lawfully in the past and the ATO has only just realised this. From the notes of the meeting you get the impression that the ATO would be lenient on these funds and offer them some way to make amends.

The problem arises because of a combination of these four things:- 
(a) The Corporations Act does not permit a minor child to be a director of the corporate trustee.
(b) The Superannuation Industry (Supervision) Act ("the SIS Act") requires that each member is a director of the corporate trustee.
(c) The SIS Act provides some exceptions to the requirement at (b). In particular it provides that a parent or guardian can be a trustee instead of a minor child. The word "trustee" here clearly refers to individual trustees and not to a director of a corporate trustee. So this does not work in the case of a corporate trustee.
(d) The SIS Act also permits a "legal personal representative" to be a director of the corporate trustee instead of a minor child. However legal personal representative is defined [in section 10(2)] as meaning:- 
the executor of the will or administrator of the estate of a deceased person, the trustee of the estate of a person under a legal disability or a person who holds an enduring power of attorney granted by a person.

Since a child cannot grant a valid power of attorney and (contrary to the belief of some) a parent is not automatically the trustee of the child's estate, this does not work either. And here it is clear that the trustee would need to be a trustee of the whole of the child's estate, and not just of that part of it that happens to be within the fund. Hence it is not possible to get round the rules by the parent declaring a trust in respect of monies contributed to the fund for the child.

These problems don't arise where the SMSF has individual trustees, because then the child can be represented on the fund by one or both parents under (c) above (exactly how this is done will depend on the terms of the trust deed).


----------



## tinhat

We have a SMSF that changed trustees from individual trustees to a corporate trustee. We did this because one of the members and trustees died. It is easier to deal with the death of a director of the corporate trustee than to deal with the death of an individual as trustee. I know because the deceased trustee was the only person who had access to the online trading account and the bank froze it during the GFC right when in the middle of the market crash. I ended up in a mess of paperwork with the bank's online broking subsidiary because they for a while insisted on probate when quite clearly the estate of a deceased member of a super fund has nothing to do with the administration of a super fund.

Anyway, long story short, we bought a shelf company and changed it status to a special purpose SMSF trustee company with ASIC. We updated the super fund trust deed to reflect that the old trustees had retired and the new trustee was the company. We then had to get the bank and the online broker to transfer all the assets into the name of the new trustee.


----------



## Julia

tinhat said:


> We have a SMSF that changed trustees from individual trustees to a corporate trustee. We did this because one of the members and trustees died. It is easier to deal with the death of a director of the corporate trustee than to deal with the death of an individual as trustee. I know because the deceased trustee was the only person who had access to the online trading account and the bank froze it during the GFC right when in the middle of the market crash. I ended up in a mess of paperwork with the bank's online broking subsidiary because they for a while insisted on probate when quite clearly the estate of a deceased member of a super fund has nothing to do with the administration of a super fund.
> 
> Anyway, long story short, we bought a shelf company and changed it status to a special purpose SMSF trustee company with ASIC. We updated the super fund trust deed to reflect that the old trustees had retired and the new trustee was the company. We then had to get the bank and the online broker to transfer all the assets into the name of the new trustee.




Thanks for that, tinhat.  It's a great example of a corporate trustee being more practical.

When you did the change did your accountant do the change of assets from the original structure to the new, or were you able to do this yourself?

The ATO have a downloadable form (NAT 71223) which seems very simple to effect the transfer so I don't see why I can't do this myself.  My accountant has quoted around $800 for his role in making the change.  That's in addition to the cost of buying the special purpose company so it seems excessive unless there's something else I'm not taking into consideration.

I'd be advising the registries and the financial institutions of the change, so am not incurring accountant's fee there.

I'd much appreciate any further advice you might have on this.


----------



## village idiot

this lot is advertising company set up for $475, which includes the $426 ASIC fee. In other words they are charging just $49 to hold your hand. seems reasonable to me...  


http://www.ozcorponline.com.au/Companies/Companies.html


----------



## Julia

Thanks very much for that, village idiot.


----------



## Ves

jorgon said:


> There would seem to be two ways to achieve a change from individual trustees to a corporate trustee.  First way: keep the existing fund with its existing TFN and ABN but change the structure from individual trustees to corporate trustee, transferring all the assets from the individual trustees to the corporate trustee.  And second way: start an entirely new fund, register it with the ATO and get a new TFN and ABN for it and transfer-in to the new fund all the assets from the individual trustees.  Either way the assets could be transferred _in specie_ provided the new trust deed permits this as it should do, so the assets would not have to be sold.  And either way you would need a completely fresh trust deed.  This is because the wording of an SMSF trust deed which uses a corporate trustee is necessarily different in many respects from the wording of an SMSF trust deed which uses individual trustees.



If you transfer existing assets off-market from an existing SMSF to a new SMSF you will incur capital gains tax. The trust deed won't save you here. In the case that you incur capital losses, or have existing capital losses these will be quarantined within the old SMSF. I would be curious if you actually have read something from the Australian Taxation Office that says otherwise. But since one entity is selling an asset to another entity (SMSF to SMSF) it triggers a CGT event. You will also have to complete ETP Rollover documentation for the transfer (calculating the taxable and tax-free components etc). 

There is no capital gains if the existing fund changes from individual trustee to corporate trustee as there has been no change of beneficial ownership.

Why would you set up a new SMSF at the expense of capital gains tax when you could amend the old deed and insert a corporate trustee?

Willing to be corrected if someone knows something that I do not.


----------



## Ves

Julia said:


> Thanks for that, tinhat.  It's a great example of a corporate trustee being more practical.
> 
> When you did the change did your accountant do the change of assets from the original structure to the new, or were you able to do this yourself?
> 
> The ATO have a downloadable form (NAT 71223) which seems very simple to effect the transfer so I don't see why I can't do this myself.  My accountant has quoted around $800 for his role in making the change.  That's in addition to the cost of buying the special purpose company so it seems excessive unless there's something else I'm not taking into consideration.
> 
> I'd be advising the registries and the financial institutions of the change, so am not incurring accountant's fee there.
> 
> I'd much appreciate any further advice you might have on this.



As you are not creating a new fund the above form is incorrect.

The form that you require is found at:

http://www.ato.gov.au/content/downloads/cas17358form.pdf

But. You will need a company (registered with ASIC) with a valid ACN. You could do it yourself if you ordered the company and trust deed amendment yourself. But the question is; do you know exactly what you require?

The $800.00 fee probably includes the amendment to the trust deed and the new corporate trustee company set up. As well as the relevant minutes.

The actual asset transfers you could do yourself by contacting the relevant financial institutions. But you will need certified copies of the new deed, the minutes etc before you can do this.


----------



## Julia

Ves said:


> As you are not creating a new fund the above form is incorrect.
> 
> The form that you require is found at:
> 
> http://www.ato.gov.au/content/downloads/cas17358form.pdf



Many thanks, Ves.  Yes, I realised later I was onto the wrong form.



> But. You will need a company (registered with ASIC) with a valid ACN. You could do it yourself if you ordered the company and trust deed amendment yourself. But the question is; do you know exactly what you require?



Acquiring a company seems to be pretty straightforward and available via many firms who do just this on the net.
But my understanding is that the trust deed amendment is a legal document and so, no, I would not know how to word or present that.  Do you have any links to advice about this?




> The $800.00 fee probably includes the amendment to the trust deed and the new corporate trustee company set up. As well as the relevant minutes.



This is why I'm querying the cost I've been quoted, in that no, the $800 fee does not include the acquisition of the company or the ASIC fee of $400 ish.  That is quoted as another $650.

So all up, the quote is around $1500 which strikes me as somewhat expensive.

Any comments from anyone on this would be appreciated, you especially Ves.



> The actual asset transfers you could do yourself by contacting the relevant financial institutions. But you will need certified copies of the new deed, the minutes etc before you can do this.



Yes, thank you, I'm OK with this bit.  Not difficult.


----------



## tinhat

Julia said:


> Thanks for that, tinhat.  It's a great example of a corporate trustee being more practical.
> 
> When you did the change did your accountant do the change of assets from the original structure to the new, or were you able to do this yourself?
> 
> The ATO have a downloadable form (NAT 71223) which seems very simple to effect the transfer so I don't see why I can't do this myself.  My accountant has quoted around $800 for his role in making the change.  That's in addition to the cost of buying the special purpose company so it seems excessive unless there's something else I'm not taking into consideration.
> 
> I'd be advising the registries and the financial institutions of the change, so am not incurring accountant's fee there.
> 
> I'd much appreciate any further advice you might have on this.




These notes are from my recollection so may not be exactly accurate...

1. Buy shelf company, set up shareholders and directors during a special meeting with the accountant. Accountants generally order this online using a service like Reckon Docs.

2. Create replacement deed. Your accountant will need a copy of the original deed. The replacement deed will specify the new trustee (the corporate trustee).

3. Hold a special meeting with your accountant and sign the minutes retiring the old trustee, appointing the new trustee and adopting the replacement deed.

4. Deal with your bank and online broker. Set up new bank accounts in the corporate trustee name and transfer money over. Set up new online broking account with a new HIN and transfer shares over. In our case, with the online broker (NAB Online Trading) it may have been that because we were also dealing with the deceased estate's personal shares that they did not charge us for off-market transfers (usually $55 each), there may be fees for transferring the shares, you would have to enquire. Generally with deceased estates banks, the motor registry, etc waive transfer fees. We only have cash and shares so I don't know what would be involved with transferring other assets.

I can't remember what our accountant charged us at the time, but we have changed accountant since then because price is not the only consideration when hiring professional service - knowledge and competence helps! Your price seems a bit much though for around three hours of professional services.

As a reference for costs, refer to the Reckon Docs price list which includes SMSF replacement deeds, shelf companies, etc:

http://www.reckon-docs.com.au/Portals/0/Price Lists/July 2011/ReckonDocs_stardard_pricelist_2011.pdf


----------



## village idiot

> And either way you would need a completely fresh trust deed. This is because the wording of an SMSF trust deed which uses a corporate trustee is necessarily different in many respects from the wording of an SMSF trust deed which uses individual trustees.




how different are we talking? I have a trust deed (individual trustees) that I have downloaded and put a fair bit of work into 'customising'. Wondering whether it is easier to change that deed wording to suit corp trustee now, or are the differences big enough to warrant starting again?  

thanks


----------



## Julia

tinhat said:


> These notes are from my recollection so may not be exactly accurate...
> 
> 1. Buy shelf company, set up shareholders and directors during a special meeting with the accountant. Accountants generally order this online using a service like Reckon Docs.
> 
> 2. Create replacement deed. Your accountant will need a copy of the original deed. The replacement deed will specify the new trustee (the corporate trustee).
> 
> 3. Hold a special meeting with your accountant and sign the minutes retiring the old trustee, appointing the new trustee and adopting the replacement deed.




Many thanks, tin hat.  I've contacted Reckon Docs for a quote to do the whole thing, i.e. Upgrade the Trust Deed, prepare the Amendment of Trustee document, and arrange the purchase of the sole purchase company.  Total cost for all this in hard copy (rather than my having to download and print) comes out at $965.  This sounds more reasonable than what my accountant is quoting.



> 4. Deal with your bank and online broker. Set up new bank accounts in the corporate trustee name and transfer money over.



This seems to vary.  Two of the banks advise no need to set up new accounts:  they would simply alter the name on the accounts.
SUN, on the other hand, would close the accounts and open new ones, retaining the original interest rate.



> Set up new online broking account with a new HIN and transfer shares over.



OK, so I'd need to send certified copy of Deed of Amendment (or whatever it's called) to Etrade and presumably they'd do whatever is required.  I have minimal holdings at present anyway. 



> I can't remember what our accountant charged us at the time, but we have changed accountant since then because price is not the only consideration when hiring professional service - knowledge and competence helps!



Agree.   I do know that everything my accountant does is done absolutely properly and perhaps quibbling about a few hundred dollars is silly.  Also, he's always available for discussion about anything throughout the year at no additional charge.




> As a reference for costs, refer to the Reckon Docs price list which includes SMSF replacement deeds, shelf companies, etc:
> 
> http://www.reckon-docs.com.au/Portals/0/Price Lists/July 2011/ReckonDocs_stardard_pricelist_2011.pdf



As above.   Does anyone have experience of using Reckon Docs?




village idiot said:


> how different are we talking? I have a trust deed (individual trustees) that I have downloaded and put a fair bit of work into 'customising'. Wondering whether it is easier to change that deed wording to suit corp trustee now, or are the differences big enough to warrant starting again?
> 
> thanks



As will be obvious, I'm no expert when it comes to Trust Deeds but I gather the wording can be pretty important with respect to e.g. whether you can borrow or not, how the assets in the fund are treated when you die and probably a lot else.


----------



## Ves

Julia said:


> But my understanding is that the trust deed amendment is a legal document and so, no, I would not know how to word or present that.  Do you have any links to advice about this?



At my firm we use ACIS. 

http://www.acis.net.au/

Another is Clear Docs.

http://www.cleardocs.com.au

I remember their service being cheaper than ACIS. The quality of the presentation isn't quite as good as ACIS; but I do not recall anyone having any trouble with their products.

I would recommend a trust deed upgrade at the same time that you amend the deed to insert a corporate trust deed. The superannuation legislation is ever-changing, so chances are that if your deed is more than a few years old it is out-of-date in some respects. Your accountant would be best to answer this after looking at your deed, of course.

From memory a change of trustee / upgrade of deed is $330, plus $700-$800 for the company. Once you've factored in your accountant's time filling in the forms, his or her advice and profit margin on top of this, especially if they are offering to change the investments for you $1500 seems ball-park.

You can however, if you feel comfortable do all of this yourself. Most providers let you fill out the order forms online these days.

You seem fairly switched on Julia; I do not see why you wouldn't be able to achieve this on your own.


----------



## Ves

village idiot said:


> how different are we talking? I have a trust deed (individual trustees) that I have downloaded and put a fair bit of work into 'customising'. Wondering whether it is easier to change that deed wording to suit corp trustee now, or are the differences big enough to warrant starting again?
> 
> thanks



Please don't. Not only are these products protected by copyright law, but they are checked over by professional lawyers. It only takes a word out of place and it will cost you a lot more than the mere $300-400 to amend the deed.


----------



## village idiot

Ves said:


> Please don't. Not only are these products protected by copyright law, but they are checked over by professional lawyers. It only takes a word out of place and it will cost you a lot more than the mere $300-400 to amend the deed.




Just to be clear, the trust deed I refer to is not yet executed ie I have not yet set up the SMSF. Therefore i am talking about changing the wording of it now  as opposed to amending an operational deed.


----------



## Ves

village idiot said:


> Just to be clear, the trust deed I refer to is not yet executed ie I have not yet set up the SMSF. Therefore i am talking about changing the wording of it now  as opposed to amending an operational deed.



Same issues as above.


----------



## village idiot

I have also had a look at the generic trust deeds supplied by two of the discount/online suppliers that have been referred to in this forum. (prepared by lawyers)

interestingly, they use exactly the same document for either a person or corp trustee. The docs just say something  to the effect that;
 'if the trustee is a corpn then xxxxxxx' 
and then
' if the trustee(s) is a person(s) then yyyyyy'

it doesnt seem ideal to do it that way if you ask me,and there is certainly scope for ambiguity,  but I guess it shows there isnt that much difference in the way the deeds would be written. I am hoping jorgon might explain the need for different deeds?

also nothing in the deeds actually says that if the trustees resign then the replacement trustee must be of the same species, suggesting that there isnt neccessarily a 'fork in the road' if the trust deed allows for it in the first place. Again, perhaps it does say so somewhere else in Super law


----------



## Julia

village idiot said:


> I have also had a look at the generic trust deeds supplied by two of the discount/online suppliers that have been referred to in this forum. (prepared by lawyers)
> 
> interestingly, they use exactly the same document for either a person or corp trustee. The docs just say something  to the effect that;
> 'if the trustee is a corpn then xxxxxxx'
> and then
> ' if the trustee(s) is a person(s) then yyyyyy'
> 
> it doesnt seem ideal to do it that way if you ask me,and there is certainly scope for ambiguity,  but I guess it shows there isnt that much difference in the way the deeds would be written.



That actually seems pretty sensible imo.  If you have a Trust Deed with that sort of optional wording then isn't it much easier to change the trustee structure if you were to want to do that?

Ves, thank you for additional information.  Yes, I suppose I could put it together myself but it's an important matter and I'd be worried about omitting something important for the sake of saving a few hundred dollars.
There seems to be quite a variation of costs for the same thing.

Overall, this is the great thing about a forum like ASF (thanks, Joe) where people are happy to contribute what they know or their experiences.



> I am hoping jorgon might explain the need for different deeds?



Me too.  Plus I asked a question earlier in response to jorgon's suggestion that two super funds could run concurrently, until the term deposit life was exhausted, but in the previous paragraph he suggested that existing accounts could be transferred to new name without penalty (unless I misunderstood what was being suggested).


----------



## village idiot

Julia said:


> That actually seems pretty sensible imo.  If you have a Trust Deed with that sort of optional wording then isn't it much easier to change the trustee structure if you were to want to do that?




That would appear to be the case from my interpretation of the particular deeds I have read.  They say you must have either corporation or humans as trustee, but at no point do they specify which one it shall be for this trust , nor do they say that once you have had one type of trustee thou shalt not be allowed have the other type. 


I have also read everything there is on the ATO site and the SIS act, and I cant find anything that specifically says that you must chose either the corporate or human trustee now and that precludes the other type of trustee in the future

However it is a complicated area and there may well be something I have missed to that effect, somewhere.


----------



## Ves

village idiot said:


> That would appear to be the case from my interpretation of the particular deeds I have read.  They say you must have either corporation or humans as trustee, but at no point do they specify which one it shall be for this trust , nor do they say that once you have had one type of trustee thou shalt not be allowed have the other type.
> 
> 
> I have also read everything there is on the ATO site and the SIS act, and I cant find anything that specifically says that you must chose either the corporate or human trustee now and that precludes the other type of trustee in the future
> 
> However it is a complicated area and there may well be something I have missed to that effect, somewhere.



Thinking about it, it sounds like it is a very generic deed. I'm not a lawyer, but it sounds like one of those "one size fits all" type of deeds without having read it. 

I guess it is fine if you have very basic needs. But I would be worried about things such as binding or non-binding nominations (are they allowed under the deed?), the different types of pension benefits available and even the different types of investment choices that the deed allows you to make. 

The problem lies in the fact that just because the legislation has changed; this does not mean that your trust deed (and in most cases it won't) will allow you to take advantage of this. Under an old deed you cannot start a common pension such as a "Transition to Retirement Income Stream" (ie accessing some of your super whilst you are still working providing you have reached your preservation age).

Clauses in old deeds that intend to proactively say something like "if the legislation changes then this over-writes what is in this deed" will not stand up in court, if recent cases are anything to go on.

That's the problem with trust deeds, though, you go to an accountant or a planner to set up your fund; yet the most qualified person to review the Trust Deed is a lawyer that specialises in them.


----------



## village idiot

yes indeed they are very 'one size fits all' which is clearly their intention, so they can supply or sell the same deed to everyone without having to modify them. 

they seem to achieve this by allowing pretty much everything they can think of, which is a pretty long list, and then allowing anything they havent thought of but that the act allows and the trustee thinks fit etc etc

when you  think of it why would you want anything  else for your own fund?

included in the items they have thought of; certainly includes allowing binding and non binding death benefit nominations, every known pension type, borrowing,  and a comprehensive list of investment options 

there are a few bits of wording though that i feel is not quite precise enough 

I imagine the deeds sold by cleardocs etc would want to have a similarly wide scope precisely so the purchaser didnt have to go amending it too much


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## Ves

village idiot said:


> I imagine the deeds sold by cleardocs etc would want to have a similarly wide scope precisely so the purchaser didnt have to go amending it too much



Pretty much spot on, I believe. Again, it depends on what you want to achieve. I think the most important thing is having an up-to-date deed, I would recommend a deed of variation once every three years to keep up with legislation.


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## jorgon

> I am hoping jorgon might explain the need for different deeds (between corporate and human trustees)?



Hi, sorry I don't think I subscribed to the thread, so I haven't been getting notifications of the numerous posts.

Some of the differences are actual legal requirements, and others are things which the auditor is obliged to check from the trust deed in the annual audit (that is, if the auditor follows the ATO guidance).

Some of the main differences are:-

1. Superannuation law requires that a fund which has a corporate trustee should state that the trustee must be a corporate trustee.
2. Superannuation law requires that a fund with a human trustee states that the sole purpose of the fund is the provision of old age pensions.  A fund with a corporate trustee does not have to state this, and can therefore be more relaxed with its stated purpose.
3. Since a minor child is not permitted to be a member of a fund with a corporate trustee, carefully drafted procedures in the human deed relating to child members ought to be omitted.
4. The deed for the corporate trustee should tie in nicely with the constitution of the corporate trustee, which ought to be written properly to deal with membership, directorship and voting.  For example those who hold powers of attorney only, should not by that fact alone be able to become directors of the corporate trustee and this will be reflected in the constitution and not controverted in the trust deed.
5. To satisfy the audit, those who must be trustees of the fund or in the case of a corporate trustee, those who must be directors of the fund, should be stated in the deed.  This part of the deed is therefore quite different.
6. The human trust deed needs to provide for cessation of trusteeship, and replacement of a trustee either by someone of sound mind or by a legal personal representative.  In the case of a corporate trustee these provisions will be in the constitution of the company if the provisions of the Corporations Act cannot be relied on (and they should not be in the trust deed).
7. The human trust deed must provide for timely transfer of assets by the outgoing trustee to the incoming trustee (and make this obligatory).  It is also necessary to provide for the timing of the trustee's release from obligations, and any indemnities from the fund.  These difficulties do not arise in the deed for the corporate trustee.
8. Disagreements between the trustees would be dealt with in the human trust deed but in the case of a corporate trustee would be dealt with in the company constitution if necessary. 
9. Superannuation law requires that the trustee (and the directors of the corporate trustee) are fully aware of their duties.  Preferably these should be set out in the trust deed and of course they are stated differently in the two types of deed.
10. The trust deed will clearly state the obligations of the trustees towards the fund.  In the case of the corporate trustee these are of course different, because of the additional layer of the company, so that the directors duties would also be stated.
11. There will be different provisions to cover the extent to which the trustees (or in the case of the corporate trustee, the directors) can use the fund to pay their expenses.  And also the extent to which they have powers to use the fund to cover all the fund's own outgoings.  And also different provisions covering how they should carry out their respective powers and duties.  The wording is of course different in each case.
12. The way the deed may be amended will be different in each case.  It is important for the trust deed to provide for amendment, whilst restricting amendment in those circumstances when an existing or incoming member might try to take advantage of a member who is deceased or lacking in capacity in later life.
13. The declaration of trust itself will be phrased differently between the two deeds.
14. The signature box and the method of attestation (how it is witnessed) will be very different. 

For the above reasons, I would not be happy with the "generic" type of SMSF trust deed which might be drafted with a view to being used for both human and corporate trustee.  Nor do I think it is a good idea to try to amend a trust deed from one type into another.


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## Julia

Update from my earlier indecision about how to go about changing to corporate trustee.

I obtained quotes from three online providers for the documents to effect the change.
In all cases, they would email a link to standard generic document which I'd have to download, print, and return by post with the original Trust Deed.

Also would have to send certified ID copies.

I just wasn't  comfortable going with the generic approach in case there was some particular circumstance which would not be covered and maybe not discovered until it came to administering the estate.

So, with some local enquiry, I found a legal firm who quoted to do everything, including providing five certified copies of all the documentation for under $1000.

I have then had to download the appropriate form from the ATO (about 20 pages), complete this, and post it.
Definitely not worth paying an accountant around $600 to do this part!

I'm really glad I decided to go the individual way as the solicitor made a couple of important points re specific wording.  I'm reassured that my particular circumstances are known and addressed.

Jorgon, re your suggestion that two separate Deeds are required, I think this is probably adequately addressed if the Deed of Amendment and a couple of other separate documents are prepared appropriately.

I'm not finished yet, as I have to supply all the financial institutions and the broker with certified copies of everything, plus complete their forms re the change.

All up, it has been a much more complicated exercise than I'd imagined and I wish I'd gone for the Corporate Trustee structure in the first place.

Hope this helps anyone else considering setting up or changing SMSF.


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## village idiot

Hi jorgon, thanks for your comprehensive reply

the generic trust deeds I looked at wouldnt even pass the first test ie



> 1. Superannuation law requires that a fund which has a corporate trustee should state that the trustee must be a corporate trustee.




so how do these pass audits then? are there lots of SMSF out there which may one day be picked up and disqualified?


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## jorgon

village idiot said:


> so how do these pass audits then? are there lots of SMSF out there which may one day be picked up and disqualified?




Well, the auditor's responsibility is to carry out (1) a financial audit, and (2) a compliance audit.

The nature of the compliance audit is described in the ATO document (NAT 11375) which states (my emphasis):-

"COMPLIANCE AUDIT
"You are required to conduct a compliance audit in accordance with the standards on assurance engagements (ASAEs) *and to express an opinion as to whether the SMSF has complied with the SIS Act and the SIS Regulations*. 
"As an approved auditor, you must possess the required capabilities and competencies to conduct a compliance audit of an SMSF, including full knowledge of the relevant legislation, the application of it and compliance with it by SMSFs. 
"Based on your audit, *you must be satisfied that the trustees of the fund have met the requirements set out in the super laws*. 
"When doing the compliance audit, *you should .. express your professional opinion about the subject matter information in the approved form* – that is, the Self-managed superannuation fund independent auditors report (NAT 11466). You must use this form."

ATO form NAT 11466 gives a list of the section numbers and regulations which the auditor must report on if there has been a failure to comply.

The section which requires that a fund which has a corporate trustee should state that the trustee must be a corporate trustee is section 19(3) of the Superannuation Industry (Supervision) Act 1993.  This is *not* on the list in NAT 11466.  

Therefore, unless the auditor interpreted strictly the requirement of the compliance audit as set out above, a trust deed which did not comply with section 19(3) would not necessarily be reported on by the auditor.

This is worrying, because section 19(1) of the Act states:-
"A regulated superannuation fund is a superannuation fund in respect of which subsections (2) to (4) have been complied with."

Therefore a breach of section 19(3) would appear to render the fund non-complying.


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## village idiot

lol now I am going to argue law semantics with a lawyer.  

this is sect 19(3) of SISA;



> (3)  Either of the following must apply:
> 
> (a)  the trustee of the fund must be a constitutional corporation pursuant to a requirement contained in the governing rules;
> 
> (b)  the governing rules must provide that the sole or primary purpose of the fund is the provision of old-age pensions.




now I presume that the assertion "requires that a fund which has a corporate trustee should state that the trustee must be a corporate trustee"  is drawn from this part of (a); "pursuant to a requirement contained in the governing rules" ?

but sect 19(3) is an either/or clause; if (b) is true then there is no need for (a) to be true or even be considered ? 

so if (b) is true,  ie the governing rules provide that the sole or primary purpose of the fund is the provision of old-age pensions......

then the trustee could be a corporation without the requirement of being explicitly stated that it must be a corporation


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## jorgon

Yes, you are correct - it can be one or the other.
However this ties up with my No. 2, because you would not wish to say in a trust deed with a corporate trustee (unless you were obliged to) that that the sole or primary purpose of the fund is the provision of old-age pensions.  This circulates around the debate as to whether such words prohibit the fund from providing a benefit by way of a lump sum (as opposed to a pension).  
Provision of benefit by way of a lump sum is in fact permitted by the statute on the happening of the relevant events.  However the trust deed should avoid introducing such a prohibition.  Therefore if these words are included, their possible effect would need to be clarified in other parts of the deed to make it clear the trustees may provide a benefit by way of a lump sum upon the happening of the relevant events.


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## Julia

Couldn't the Deed simply say that the purpose of the Fund is to provide retirement benefits to the members?  Thus not specifying whether "pension" or lump sum?


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## pixel

Julia said:


> Couldn't the Deed simply say that the purpose of the Fund is to provide retirement benefits to the members?  Thus not specifying whether "pension" or lump sum?



 You can also reiterate that phrase when you formulate/ update your investment strategy.
The recent updates coming from SIS and ATO are stressing the need for such Plans; I therefore think it's a good idea to use their preferred terminology. Easy enough to do.


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## village idiot

the way that section 19 is drafted is pretty odd. 

I mean if the lawmakers decide that it is a good idea that _the governing rules must provide that the sole or primary purpose of the fund is the provision of old-age pensions. _, where is the logic in letting one type of trustee do something different but not the other?

And what has an administrative detail (type of trustee) got to do with the main purpose of the fund anyway?



> This circulates around the debate as to whether such words prohibit the fund from providing a benefit by way of a lump sum (as opposed to a pension).




yes, if those words really do prohibit lump sums, then that would be an onerous restriction that would make using a corp trustee a no brainer. 
Yet if it is accepted as you allude to that this can be got round by _  clarified in other parts of the deed to make it clear the trustees may provide a benefit by way of a lump sum upon the happening of the relevant events_ then that simple clarification effectively negates the restriction. 
On other hand if there is doubt that such a clarification overrides the required statement that primary purpose of the fund is the provision of old-age pensions, then back to square one (and a corp trustee)


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## nulla nulla

village idiot said:


> the way that section 19 is drafted is pretty odd.
> 
> I mean if the lawmakers decide that it is a good idea that _the governing rules must provide that the sole or primary purpose of the fund is the provision of old-age pensions. _, where is the logic in letting one type of trustee do something different but not the other?
> 
> And what has an administrative detail (type of trustee) got to do with the main purpose of the fund anyway?
> 
> yes, if those words really do prohibit lump sums, then that would be an onerous restriction that would make using a corp trustee a no brainer.
> Yet if it is accepted as you allude to that this can be got round by _  clarified in other parts of the deed to make it clear the trustees may provide a benefit by way of a lump sum upon the happening of the relevant events_ then that simple clarification effectively negates the restriction.
> On other hand if there is doubt that such a clarification overrides the required statement that primary purpose of the fund is the provision of old-age pensions, then back to square one (and a corp trustee)




Maybe the use of the words "primary purpose" do not exclude secondary purposes where some-one electsd to include them.


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## jorgon

The Superannuation Industry (Supervision) Act 1993 as a federal statute may only regulate matters as provided by the Australian Constitution.  The Federal Parliament has power to make laws with respect to *trading or financial corporations* (the "corporations power") and to make laws with respect to *old-age pensions* (the "pensions power").  This is under sections 51(xx) and 51(xxiii) of the Constitution respectively.
The statutory law governing a superannuation fund with a corporate trustee is made under the corporate power.  The statutory law governing a superannuation fund with human trustees is made under the pensions power. 
So the wording of section 19(3) is designed to ensure that the superannuation fund states in its governing rules (the trust deed) whether it is established with a corporate trustee (and so be regulated under the corporations power) or to provide old-age pensions (and so be regulated under the pensions power).   
If the governing rules of the superannuation fund states neither of these two things, then the fund cannot come within the regime established by the Superannuation Industry (Supervision) Act 1993.  This is because the Federal Parliament would have no power to make a law regulating such a fund.
This explains the strange wording of section 19(3).


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## village idiot

thanks for the explanation jorgon. interesting. 


now another question;  if I was interested in buying my docs from you (corp trustee package), how could I make sure the deed suited my circumstances in advance? Specifically I would like to check out the clauses dealing with powers to 'invest' ie what instruments are allowed, granting security, borrowing and using a LPR as director. would any changes be allowed either by myself or you? 

respond by pm if you prefer. thanks.


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## jorgon

I'm very flexible about these things.
I appreciate that people who run their own SMSFs may wish to question the reasoning behind parts of the deed and the other documents in the package, which I am only too happy to explain.
I am also happy to deal with any queries a client might have about the step-by-step guide and the mechanics of how to get their SMSF up and running.
As for amendments, in the usual case the deeds and documents should cover all requirements.  If a client wishes to make changes to a document that I have drafted this will not need my consent.  But I am happy to discuss such changes and to check them for legality and for consistency with other provisions in the documents.
This is within reason, of course.  I have been in practice a long time and I am confident that clients will not take advantage of this.  If I need to charge a fee in order to consider more substantial changes I will let the client know beforehand and obtain their agreement (as indeed I am obliged to do by my professional rules).


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## village idiot

ok Jeremy, on the strength of your reply that you are willing to help tweak the document by review and advice on any changes I might need to suggest, within reason of course,  then book me down for an SMSF corporate trustee package. 

have sent email direct


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## Julia

Jorgon, can you tell us the cost of the package for changing to Corporate Trustee?

Does that price include providing the necessary documentation to the ATO?


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## jorgon

Hi Julia
I assume this would be done by keeping the existing registered fund but using a new trust deed (which in my opinion is much better than amending the old one).  
I would have to write a new step-by-step guide explaining the process to follow since the one in the existing "SMSF set up pack using corporate trustee" is to set up a new fund.  I am happy to do this if there is any demand for this.
The cost would be the same as the existing "SMSF set up pack using corporate trustee" which is $365 including gst.  There would also be the one-off ASIC fee of $426 to register the corporate trustee as a company.  
Although there is no more money to pay, these costs do not include the work involved in lodging the paperwork with the ATO and with the ASIC.  
Of course, you would not do this without appreciating any capital gains tax implications.


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## Julia

jorgon said:


> Although there is no more money to pay, these costs do not include the work involved in lodging the paperwork with the ATO and with the ASIC.



Thank you, jorgon.  It's the total cost I was looking for, i.e. including your time.
And, as mentioned previously, including the cost of advising the ATO.


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## jorgon

Hi Julia
The only work I can do is:- 
(a) prepare the documents for you;
(b) provide a step-by-step guide as to the procedure you will need to follow.
The reason is that unlike solicitors, barristers are not allowed to conduct a client's affairs.  Barristers in this context are allowed to draft documents for clients and to advise  them.  
This means therefore there really is no more money to pay.  But it also means that you yourself would have to take responsibility to do the paperwork, by following my step-by-step guide.  This is actually quite simple.  Why pay someone else to do it when you can perfectly well do it yourself (albeit with some guidance)?


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## awg

Hi Jorgon & others, excellent to have an Industry professional onboard, and thankyou for taking the time to clarify matters

Julia & others, with regard to the questions you are asking about changing to Corporate Trustee, have you rung Esuperfund ?

I am sure they will give you obligation free opinion, and are remarkably cheap and easy.

It is possible their is easier or cheaper ways to run a Corporate Trustee, I have looked at a few setups, things are getting more competitive that are close, but for $700 setup, audit & tax for a Corp Trust, they do a large number.

No association other than satisfied customer, a phone call is simple (an accountant calls you back later)

Knowing what I know now, I probably would not want to be making changes to my super structure unless compelling reasons presented themselves.


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## Julia

jorgon said:


> Hi Julia
> The only work I can do is:-
> (a) prepare the documents for you;
> (b) provide a step-by-step guide as to the procedure you will need to follow.
> The reason is that unlike solicitors, barristers are not allowed to conduct a client's affairs.  Barristers in this context are allowed to draft documents for clients and to advise  them.
> This means therefore there really is no more money to pay.  But it also means that you yourself would have to take responsibility to do the paperwork, by following my step-by-step guide.  This is actually quite simple.  Why pay someone else to do it when you can perfectly well do it yourself (albeit with some guidance)?



Ah, of course.  Thanks, jorgon.  I should have realised that.




awg said:


> Hi Jorgon & others, excellent to have an Industry professional onboard, and thankyou for taking the time to clarify matters
> 
> Julia & others, with regard to the questions you are asking about changing to Corporate Trustee, have you rung Esuperfund ?



The last time I was considering the change, I did contact them but they advised categorically they were not interested in helping with existing funds, only setting up from scratch.
That was a few years ago and they may well have adjusted their approach.



> Knowing what I know now, I probably would not want to be making changes to my super structure unless compelling reasons presented themselves.



Couldn't agree more.  As I've said recently, I've completed the change to corporate trustee.   
(With apologies, jorgon, my query to you was essentially just an ongoing curiosity about the variation in charges, and I thank you sincerely for your courteous response.)

I had quotes from several organisations and these varied widely on cost.
In the end I didn't feel confident about going with generic documents unless these were checked with relevance to my particular circumstances by a solicitor.
I found a local firm with the relevant experience and was happier to sit across the desk and discuss the whole thing, then have to just do the "sign here" bit.

The cost was more than reasonable and significantly less than some of the organisations quoted for just emailing the documents.

I've done the lodging of the form for the ATO with some help over the phone from them to ensure I filled it out correctly.

The most arduous aspect has been the form filling and supply of certified documents for all the financial institutions, negotiating term deposit rate to equate that  on original TD which had to be broken because of the change of trustee.
Easiest part was Etrade who essentially did it all over the phone and just emailed me the forms for signature.

It has all been much more complicated than the original set up of the SF.


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## village idiot

having now downloaded the pack from jorgon, i will now be bogging down this thread with stupid and pedantic questions during the whole epic process;

question 1. suppose your name was Hogwarts for example, and you called your super fund Hogwarts Super Fund. Is there any disadvantage known to calling the trustee "HSF Trustee PL" as opposed to 'Hogwarts Super Fund Trustee PL'?

Like does it make it harder to open an account with IB or anyone ese because it doesnt have 'super fund' in it?


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## Julia

village idiot said:


> question 1. suppose your name was Hogwarts for example, and you called your super fund Hogwarts Super Fund. Is there any disadvantage known to calling the trustee "HSF Trustee PL" as opposed to 'Hogwarts Super Fund Trustee PL'?



I found the name of the trustee company was eventually determined by what names were available.  You don't want it to be any longer than it has to be, obviously, as it can be very tedious when you're completing forms by hand.

e.g. I wanted just "JW Pty Ltd." but that was unavailable and I had to add another couple of letters to acquire the sole purpose company.

I can't see why any broker or financial institution would have any interest whatsoever in what you actually call the Pty. company.


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## village idiot

First, some information; If you are setting up a company to act as the corporate trustee, it turns out a company cannot have the words 'trust' or 'trustee' in it's name, so the correct answer to



> Is there any disadvantage known to calling the trustee "HSF Trustee PL




is the disadvantage is that the application will get rejected two weeks later and you have to start all over again calling it something else



now a question. Jorgon feel free to chime in here;


If a member at some stage wishes to resign, what are the practicalities of extricating that member and their funds from the SMSF while ensuring it remains a qualifying SMSF at all times?

If a member resigns as a member they must simultaneously reisgn as a director of the corp trustee, otherwise the fund will breach the rule that each director must be a member and each member must be a director. That however would leave their funds still in the SMSF , and presumably still invested, at least for a short period while the investments could be unwound and the balance transferred out to some other super fund. During this time the remaining director would effectively be in control of someone elses funds who is not even a member, which would probably breach numerous regulations. 

Could they make the decisions about unwinding the investments, calculating the amount due to the departing member and paying it out of the fund on their own?

Is the answer that the departing member's share of investments needs to be unwound and the funds rolled out to another super fund before they resign?

Anyone have any experience of this?


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## jorgon

Hi VI

There is 6 months grace in section 17A(4) of the Superannuation Industry (Supervision) Act 1993.  This provides that the fund does not cease to be a superannuation fund because it does not comply with the member/director/trustee requirements until the 6 months has expired.  This doesn't apply to new members joining the fund - a new member of legal capacity would need to be appointed as a director immediately (or in the case of individual trustees, would need to become a trustee immediately).  But in the case of an outgoing member there would be 6 months for the outgoing member to resign as director (or in the case of individual trustees, to resign as trustee) after resigning as member.  

But it would clearly be sensible for an outgoing member to resign as member only after the transfer out of the fund has occurred, not so much for reasons of compliance - more for the member to ensure maximum control over the account balance.


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## village idiot

Thanks Jeremy

Looks like  the 6 months grace period covers the problem do that is what i am looking for

cheers


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## Julia

http://www.superguide.com.au/

For those who have not come across this website, run by Trish Power, it's a monthly newsletter with some really useful information about Super, in particular for SMSFs.
Free to subscribe.


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