Share Certificate

Share Certificate

A share certificate is to confirm the holdings of a particular shareholder.

Share Certificate

ASIC doesn’t issue share certificates. It is the company itself that does.

Large companies use professional share registries like Computershare, Link Market Services or Boardroom Limited, but in small proprietary companies it is the company secretary or director or their accountant acting on their behalf who prepares these share certificates if and when needed.

Do You Need One?

If you and your spouse are the only shareholders, you don’t need one unless your bank wants it or the relationship with your spouse is not that great.

But if you share the shareholding with others, then a share certificate documenting your ownership interest makes sense.

Template

You can get an official document from LawPath or LegalVision and other online document providers but you will probably have to pay for it. So here is a free template you can copy and use. But please don’t rely on it in any way. We are not lawyers or solicitors.

Example of a Share Certificate

Please don’t take this as legal advice. We are not licenced to give legal advice. The template below might be invalid.

Here is an example template of a share certificate. Just copy and adjust it to your company’s details.

 

 SHARE CERTIFICATE

SMITH PTY LIMITED
ACN 123456789

(the “Company”)

 

Registered under the Corporations Act 2001 (Commonwealth)

This is to certify that Bill Smith at 20 Tulip Street, Rose Bay NSW 2029 is the holder of the following shares in the Company, subject to the Company’s constitution or replaceable rules:

Number of shares: 50
Class of shares: Ordinary
Amount paid per share: $1 (one Australian dollar)
Amount unpaid per share: $0 (zero Australian dollars)

Dated: 1st July 2020

Executed by SMITH PTY LIMITED (ACN 667855290) and signed by two of its directors BILL  SMITH and SHEILA SMITH .

 

 

BILL  SMITH, Director                                            SHEILA SMITH, Director

 

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Disclaimer: numba does not provide specific financial, legal or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax or legal advice when considering whether the information is suitable to your circumstances.

Liability limited by a scheme approved under Professional Standards Legislation.

SMSF Cost

How much will your SMSF cost you? What fees will you incur?

How Much Does My SMSF Cost

It depends on how much you do yourself, how much you pay in penalties if you get it wrong and how much you get others to do.

Over the lifecycle of your SMSF there are at least 10 trigger points that might cost you money. Here is a quick overview.

1 – ASIC Fees to Set Up Corporate Trustee

Your SMSF must have at least one trustee – be it an individual (you) or a company. An individual trustee is free. A corporate trustee incurs an ASIC fee at registration.

2 – Trust Deed

Your SMSF is only a relationship – a relationship between trustees and members over trust property, governed by a deed. And this deed usually doesn’t come free.

3 – Bank Account

Most bank accounts are free – for example NAB, ING or Macquarie – but some charge.

4 – Professional Fees

Your accountant will probably charge you a fee to prepare your SMSF’s annual report. As will any financial adviser you engage for the actual investment of your super.

5 – Software

Any software your accountant uses – usually Class or BGL – is usually included in their fee. If you do it yourself, you can pay for a BGL subscription or try a free version of Excel, McLowd or Wave.

6 – Audit

Every SMSF requires an audit of its annual return by an independent auditor registered with ASIC. Your accountant might cover this in their fee.

7 – Actuarial Certificate

Whenever your SMSF is in hybrid mode – ie in accumulation and retirement mode – you need an actuarial certificate. And that costs money. Your accountant might cover this in their fee.

8 – Annual ASIC Fees

An individual trustee is free – although far from ideal – but a corporate trustee will incur an annual ASIC fee.

9 – SMSF Levy

The ATO will charge an SMSF levy to your tax refund or liability when you lodge your tax return. 

10 – ATO Penalties

Superannuation is a highly regulated environment where it is easy to make mistakes, which can cost you dearly.

If you have a question, please call or email. There might be a simple answer to your query.

 

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Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

Liability limited by a scheme approved under Professional Standards Legislation

SMSFs need an ABN and TFN

ABN and TFN

SMSFs need a TFN and ABN. SMSF’s corporate trustees need an ACN. And all members need a TFN.

SMSFs need an ABN and TFN

That was quick and confusing, so let’s go through this once more.

Your SMSF needs a TFN

Tax File Numbers (TFN) are issued by the Australian Tax Office (ATO) and identify a tax payer.

Your SMSF has to prepare an annual return and hence needs a tax file number. This number is like your SMSF’s id. Without it the ATO can’t process the information in their system.

Your SMSF needs an ABN

Australian Business Numbers (ABN) are issued by the Australian Business Register (ABR) and identify a business.

Your SMSF needs an ABN…….Not actually true. There is no legal obligation for an SMSF to get an ABN. Neither the SIS Act nor SIS Regulations stipulate an ABN. And so the ATO can’t force you. Your SMSF can be a complying super fund without an ABN. 

But life is a lot easier when your SMSF does have an ABN. The business community expects your SMSF to have an ABN so many forms will ask for it. And eSAT doesn’t work for SMSFs without an ABN.

eSAT is the electronic superannuation audit tool auditors can use for their annual compliance audit or to lodge an auditor contravention report.

Your Corporate Trustee needs an ACN

Australian Company Numbers (ACN) are issued by the Australia Securities & Investments Commission (ASIC) and identify a company.

A corporate trustee is a company so they need an ACN by definition. Every company – be it a special purpose company or not – automatically gets an ACN upon registration. You are not an Australian registered company if you don’t have an ACN.

Assuming your corporate trustee doesn’t run a business or derive any income directly, they neither need an ABN nor a TFN.

All Members Need a TFN

Every member has a beneficial interest in the SMSF’s assets and income. And so the ATO wants to know who these members are. And they do that through a TFN. So every member needs a TFN.

If you get stuck, please email or call us. There might be a simple answer to your query.

 

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Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

Liability limited by a scheme approved under Professional Standards Legislation.

Collectables + Personal Use

Super is all about gratification delay. Suffer now. Retire later. But collectables and personal use assets mean instant gratification. 

Collectables and Personal Use Assets

When your SMSF acquires collectables and personal use assets, you have fun right now. There is no gratification delay. The legislator doesn’t like that.

Before 2011

Life was good before 2011. Back then you could get your SMSF to buy Aboriginal art and hang it on your living room wall. Or buy a vintage car and drive it around on weekends. Or buy a Tiffany ring and wear it next to your wedding ring.

And then you just hoped for capital growth some time in the future. That was enough to pass the sole purpose test – sort of.

But the legislator didn’t like that one bit. They struggled to see the sole purpose in your expensive paintings and vintage cars. And so they addressed the issue in two steps.

s62A SIS Act

They added a definition in s62A of the SIS Act to clarify what the term ‘collectables and personal use assets’ actually includes.  

s62A lists collectables and personal use assets – ranging from artworks, artefacts and antiques over jewellery, coins and stamps to vehicles, motorbikes and recreational boats.

Paragraph 13.18AA SIS Reg

And then they added paragraph 13.18AA to the SIS Regulations to do the heavy lifting. Para 13.18AA lists clear rules about the usage, storage, insurance, lease and subsequent sale of collectables and personal use assets. 

Since the term ‘collectables and personal use assets’ is quite a mouth full, they are often referred to as ‘s62A items’.

s62A items must not be leased to or used by a related party, not be stored or displayed in the private residence of a related party and not be sold to a related party below market value and without an official valuation. The asset must be insured in the name of the fund. And any decision regarding the storage of the asset must be well documented and kept for 10 years. 

The purpose of all these rules is to prevent a member from receiving a benefit before a condition of release has been met.

Usage

You and related parties must not use collectables and private use assets in any way. Any use – however insignificant, incidental or arbitrary – counts as usage. 

So if your SMSF owned a vintage car, you or other related parties must not drive it. Not even to get the car to a work shop for maintenance or restoration work. If you want the car moved, ask a third party not related to your SMSF. 

Storage

You can store your SMSF’s s62A items in any way you like as long as it is not a related party’s private residence.

Private residences are a huge No No when it comes to collectables and personal use assets. The legislator doesn’t want these assets anywhere near a private residence where a related party’s private use or display would be impossible to track.

But other premises – for example an office, warehouse, factory, boat shed, trailer – are ok even if a related party owns or leases these premises. Any storage outside of private residences is ok as long as the storage does not amount to a display.

When you store a s62A item, you need to keep a record why you decided to store the items the way you did.

Display

You and related parties must not display your SMSF’s s62A items in any way.

So if you store your SMSF’s art works in your office building, they must be packed away. You can’t display them in your reception, meeting room, office or wherever else you might have an empty white wall.

There is only one way s62A items can see the light of day. And that is when they are leased to an unrelated party at arm’s length – for example to an art gallery.

Insurance

Your SMSF must insure any collectables or personal use assets within seven days of purchase. The policy must be in your SMSF’s name, but it doesn’t matter whether the items are insured under separate policies or collectively under one.

The need for insurance in the SMSF’s name is probably the greatest hurdle. Insuring s62A items is often prohibitively expensive, if you manage to find an insurer. Many insurance company don’t insure lifestyle assets, and when they do charge accordingly.

Leasing

If your SMSF holds collectables or personal use assets, it must not lease these to a related party. A lease is only permissible if at arm’s length to an unrelated party.

So your SMSF could lease art work to an art gallery at arm’s length as long as no related party has any connection with this art gallery.

Selling

The legislator doesn’t really want your collectables and personal use assets in your SMSF in the first place. So all doors are open for you to sell them again. 

You can sell your collectables and personal use assets to anybody you like. Even a related party.  You just have to make sure that the sale is at market value determined by a qualified and independent valuer. Qualified means they know what they are talking about. They have formal valuation qualifications or their professional community values their specific knowledge, experience and judgement in the matter. Independent means that they are not a related party.

Superannuation Investment Rules

The rule in para 13.18AA is one of six superannuation investment rules. But there are five more.

Any acquisition of collectables and personal use assets must pass the sole purpose test, be at arm’s length, not from a related party and keep in-house assets below 5% of total assets.  And the SMSF can’t borrow money to buy the collectable or personal use asset.

If you acquire collectables or personal use assets you need to pass all six investment rules.

If you get stuck, please email or call us. There might be a simple answer to your query.

 

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Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

Liability limited by a scheme approved under Professional Standards Legislation.

In-Specie Contributions

When your SMSF receives in-specie contributions, two things happen in one go. Your SMSF receives a contribution. And your SMSF acquires an asset.

In-Specie Contributions

There are two ways for an asset to move into your SMSF. The trustee can either buy the asset. Or the trustee can receive the asset as an in-specie contribution.

Let’s use an example. Let’s say you bought an apartment 10 years ago, negatively geared it against your income. And you did well. But now the mortgage is paid off, so you start paying marginal rates on your rental income. So you do an in-specie contribution into your SMSF.

In-Specie Contributions

In-specie contributions are complex. They come with baggage. A ton of strings attached. Four to be exact.

1 – An in-specie contribution is a contribution, so you need to watch out for contribution caps.

2 – But an in-specie contribution is also an acquisition, so you also got the superannuation investment rules to deal with.

3 – An in-specie contribution usually comes from a related party – who else would transfer an asset into your fund? So you got all the rules around related party transactions to comply with, especially s66 of the SIS Act.

4 – And an in-specie contribution might require a loan. So you need to get around s67 of the SIS Act telling you not to borrow money.

No Change of Legal Ownership

For in-specie contributions no cash changes hands. There is no actual sale of the asset. No change of legal ownership.

The trustee – be it an individual or corporate trustee – owned the asset before the contribution. Not as a trustee in trust for the members. But in their own right as an individual or company.

After the contribution the individual or corporate trustee are still the legal owners of the asset.  Nothing changed in that respect.

Transfer of Beneficial Ownership

What changed is the beneficial ownership of the asset. The contribution was a transfer of beneficial ownership.  

Before the contribution the trustee – be it an individual or corporate trustee – held both the legal and beneficial ownership of the relevant asset.

After the contribution the trustee is still the legal owner of the asset. But beneficial ownership is now in the hands of the members. The trustee only holds the asset in trust for members. Because after all an SMSF is only a fiduciary relationship.

Trustee on Title

For an in-specie contribution the trustee needs to own the asset before the transfer – not as a trustee but in its own right. A trustee can only hold an asset in trust for members if it is the legal owner of the asset.

This is often an issue when assets are held in individual names but the SMSF has a corporate trustee, particularly when the asset is property. If the land register lists the title in individual names and the SMSF has a corporate trustee, there is no room for an in-specie contribution.

This comes up more often than you might think. Mum and dad investors buy a commercial property in individual names and negatively gear it against their salary and wages.  Once the property is positively geared, they transfer it into the SMSF through in-specie contributions to move future lease income and capital gains into the concessional tax environment of super. At least, this is what they intend to do.

But if the SMSF has a corporate trustee, then this doesn’t work since the corporate trustee doesn’t have legal ownership of the asset. The title is in individual names.

But in practice it depends on whether the auditors let this through. And whether the ATO ever looks closer. 

Part Transfer

The transfer doesn’t need to cover the entire asset. It can just be part of an asset. For example 25% or 50%.  So if an asset’s value exceeds the annual contribution and bring-forward caps, you can contribute the asset over time.

Let’s say a small business owner transfers 50% of his business premises into an SMSF using the bring-forward rule. So he now holds 50% as trustee and the other 50% directly. He waits three years and then starts transferring the remaining 50% in several tranches.

Contribution

Whether you make a contribution in-specie or in cash, the normal contribution caps still apply. So if you want to transfer your business premises into your SMSF and its market value exceeds contribution caps, you do the transfer in stages over several years.

You can’t make any more non-concessional contributions, once your TSB hits $1.6m. TSB stands for Total Superannuation Balance. Think of it as everything you got in super.

So with that limit, it gets much harder to get an entire building into an SMSF. Anything that is worth more than $1.6m won’t fit. You would just transfer a portion into the SMSF and keep the rest outside of super.

Acquisition

An in-specie contribution is an acquisition the SMSF makes. And so all six superannuation investment rules apply. You need to….

1 –  Pass the sole purpose test – s62 SIS Act
2  – Act at arm’s length – s109 SIS Act
3  – Keep in-house assets below 5% – s82 SIS Act
4  – Not acquire assets from related parties – s66 SIS Act
5  – Not hold assets for personal use – s62A SIS Act + para 13.18AA SIS Reg
6  – Not borrow money – s67 SIS Act

Look at s66 / # 4 again. Not acquire assets from related parties. But an in-specie contribution is exactly that. It is an acquisition from a related party. So this would put an end to any in-specie contributions.

But s66 contains three exceptions. Listed securities, business real property and in-house assets below 5%. So those three asset groups can still come into the SMSF via an in-specie contribution. 

Related Party Transaction

An in-specie contribution almost always comes from a related party. Never say never, but who else would transfer an asset into your fund?

Since the asset comes from a related party, the legislator wants to make sure that the transfer happens at arm’s length. That the asset comes in at market value – not more and not less. So you got s66, s82 and s109 of the SIS Act to contend with.

Loan

There is no point in making an in-specie contribution for $3.50. So in-specie contributions are usually about substantial asset values. And that makes it more likely that a lender has a charge over the asset that allowed the asset’s acquisition in the first place. 

If that is the case, the lender is unlikely to consent to an in-specie contribution. So you would refinance the loan and change it to an LRBA – probably with a different lender – to get around s67 of the SIS Act . 

So looking at all this, you can probably see that in-specie contributions are doable but complex. 

If you have a question, please email or call. There might be a simple answer to your query.

 

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Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

Liability limited by a scheme approved under Professional Standards Legislation.

Super Investment Rules

The SIS Act lists various superannuation investment rules that are to to keep your super safe  until you retire.

Superannuation Investment Rules

Superannuation is highly regulated in Australia. Especially four areas have the legislator’s full attention. How much goes into super. What happens to it while inside. How much moves into pension mode. And how much comes out. 

How much goes into super is all about concessional and non-concessional contributions. What happens while inside is all about superannuation investment rules. How much moves into pension mode is all about transfer balance accounts and caps. And how much comes out is all about conditions of release and benefit payments.  

Insider Deals

Government and retail super funds are unlikely to do insider deals with you. You are just one small fish in a big pond.  But your SMSF might be a temptation too hard to resist when cash is tight. So investment rules are especially relevant for SMSFs, since there is so much room for dodgy deals. 

Take the arm’s-length rule as an example. Imagine the arm’s-length rule didn’t exist. Your SMSF could buy below market from related parties and bring extra super in. Or sell below market to related parties and move extra super out. And this points to the highest risk when it comes to SMSFs – related parties. Dodgy deals with related parties.

Related Parties

And so investment rules focus on related parties. This is where the risk is. Your SMSF has two related parties – you and your ‘Part 8 associates’. Part 8 of the SIS Act covers related party transactions – hence the term ‘Part 8 associates’.

You is simple. It is just you. But determining your Part 8 associates is not that simple. It involves a lot of people – your family, fellow SMSF trustees, business partners in a partnership, any entities you or another Part 8 associate controls and so on.

Your family alone includes your spouse, children and close relatives, which includes your and your spouse’s siblings, parents, grandparents, uncles, aunts, nephews and nieces. Can you see how this can get complicated?

Part 8 discusses control in great detail. But to keep it simple, just think of majority. Think of 51% or more. Think of you and your Part 8 associates running the show.

So these related parties are the focus of Australia’s superannuation investment rules. 

Investment Rules

There are six investment rules that govern what happens to your super while inside your fund. Protecting your super from you and your Part 8 associates.

You must pass the sole purpose test and act at arm’s length. You must keep in-house assets below 5% of total assets.  And you must neither acquire assets from related parties, nor acquire or hold assets for personal use, nor borrow money. That’s it. Just those six rules. But there are plenty of exceptions.

# 1   Pass the Sole Purpose Test

The sole purpose test in s62 (1) of the SIS Act is the core of Australia’s superannuation framework. It requires trustees to focus on the provision of retirement benefits and/or death benefits.

 s62 (1)  Each trustee …must ensure that the fund is maintained solely: (a)  for one or more of …the core purposes; or (b)  for one or more of the core purposes and for one or more of the …ancillary purposes..

# 2   Act at Arm’s Length

Trustess must act at arm’s length. No deals with related parties. s109 (1) states this very clearly.

s109 (1)  A trustee …must not invest …unless:  (a)  the trustee …and the other party …are dealing with each other at arm’s length….

But then there is a back door. You can do business with related parties as long as your terms and conditions are at arm’s length. 

s109 (1) (b): or…  the terms and conditions…are no more favourable to the other party than … if the trustee …were dealing with the other party at arm’s length…

# 3   Keep In-House Assets Below 5%

Dealings with related parties carry a huge inherent risk. To contain this risk the legislator wants to keep super assets connected to related parties at a minimum – below 5%. 

s82 (2): If the market value ratio of … in-house assets as at the end of…a…year of income exceeds 5%, the trustee of the fund…must prepare a written plan. 

(4)  The plan must set out the steps …to ensure that: (a)  … in-house assets …are disposed of during the next … year…; and (b)  the value of the assets so disposed of is equal to or more than the excess amount….

Keep in-house assets below 5%. If you don’t, you need to come up with a plan how to get in-house assets below the 5% threshold again in the following year. 

There are three categories of in-house assets listed in s71(1) of the SIS Act. Loan, investment or lease – connecting the SMSF to a related party.

s71 (1):…an in-house asset …is an asset …that is a loan to, or an investment in, a related party…, an investment in a related trust…, or an asset….subject to a lease…between a trustee … and a related party…

Lease

Lease might mean a lot more than you think. Para 13.22A of the SIS Regulations defines lease arrangements much wider than other parts of the law. 

SIS law assumes a lease whenever a related party controls the use of the asset, even if there is no lease agreement that would be enforceable by legal proceedings.  

Para 13.22A:…any agreement, arrangement or understanding in the nature of a lease (other than a lease) between a trustee of a superannuation fund and another person, under which the other person is to use, or control the use of, property owned by the fund, whether or not the agreement, arrangement or understanding is enforceable, or intended to be enforceable, by legal proceedings.

Think of a holiday home owned by an SMSF. If a related party stays there even just one night, SIS law assumes a lease.

Excluded

Certain assets are specifically excluded from being in-house assets per s71(1) SIS Act.

The three exceptions most relevant to SMSFs are 1) business real property, 2) widely held unit trusts (at least 20 entities have fixed entitlements to at least 75% of the trust’s income and capital) and 3) property owned as tenants in common but not leased to a related party.

# 4   Not Acquire From Related Parties

Section 66 (1) of the SIS Act is like a sledgehammer. It says that as the trustee of a super fund you must not acquire any assets from a related party even if it is at arm’s length. Oommpphh. That hits hard. Much harder than s109. 

s66 (1) SIS Act: … a trustee ….must not intentionally acquire an asset from a related party of the fund.

But there are exceptions to this rule. Listed securities, real property, in-house assets and relationship breakdowns are the most relevant ones.

Listed Securities

If the asset is a listed security, then there is a definite market value at the time of transfer, hence the exception in s66 (2) (a) SIS Act.  

s66 (2):  Subsection (1) does not prohibit a trustee …acquiring an asset from a related party of the fund if: (a) the asset is a listed security acquired at market value…

Real Property

SMSFs may acquire business real property from a related party at market value. Small business owners often use this exception to transfer business premises into their SMSF.

s66 (2)  Subsection (1) does not prohibit a trustee …acquiring an asset from a related party…(b) if …the asset is business real property of the related party acquired at market value…

Business real property is defined in s66 (5) of the SIS Act. It is any real estate – any freehold, leasehold or indirect interest in real property or Crown land – used wholly and exclusively for business.  Farm land is regarded as wholly and exclusively used in a business even if up to two hectares is used for domestic or private purposes.

In-House Assets

The in-house asset rules are like a materiality threshold. It is the legislator saying, “Let’s not sweat the small stuff”.

If an asset is insignificant – less than 5% of total assets – then it is ok to acquire it from a related party at market value. Thanks to s66 (2A) SIS Act.

s66 (2A):..does not prohibit the acquisition of an asset by a trustee …from a related party… if: (a)  …the asset … is an in-house assetand (b)  …acquired at market value; and (c)  ..would not result in…in-house assets …exceeding the level permitted by Part 8.

But here is s83 SIS Act to remind you what to do if it does exceed 5%..

s83 (2): If the market value ratio of the fund’s in-house assets exceeds 5%, a trustee of the fund must not acquire an in-house asset.

Relationship Breakdowns

And then there are relationship breakdowns. When you separate, s66 (2B) of the SIS Act gives you the option to move super from one spouse to the other. 

s66 (2B): …not prohibit a trustee …acquiring an asset from a related party …[if] …the member and …spouse …are separated; and …there is no reasonable likelihood of cohabitation being resumed; and …the acquisition occurs because of…the breakdown of the relationship …and  the asset represents…the member’s own interests …or .. entitlements as determined under …the Family Law Act 1975 …

For more details see s71EA SIS Act.

# 5    Not Use Assets for Personal Use

s62A SIS Act together with paragraph 13.18AA of the SIS Regulations have very strict rules around collectables and personal use assets.

It starts with a long list of collectables and personal use assets in s62A of the SIS Act. The list ranges from artworks, artefacts and antiques over jewellery, coins and stamps to vehicles, motorbikes and recreational boats. And then para 13.18AA tells you what to do and not to with these assets.

Collectables and personal use assets must not be leased to or used by a related party, not be stored or displayed in the private residence of a related party and not be sold to a related party below market value and without an official valuation. The asset must be insured in the name of the fund. And any decision regarding the storage of the asset must be well documented and kept for 10 years. 

As with any investment the acquisition of collectables and personal use assets must comply with all the other superannuation investment rules.

# 6  Not Borrow Money

This one sounds very straight forward. An SMSF trustee must not borrow any money.

s67 (1):  …a trustee of a regulated superannuation fund must not: (a)  borrow money; or (b)  maintain an existing borrowing of money.

But there are four important exceptions. A trustee can borrow money to pay a benefit, surcharge or security transaction. The only requirement is that the borrowed amount does not exceed 10% of fund assets and is paid within a set number of days. For benefit and surcharge payments it is 90 and for security transactions 7 days.

And then there is one more exception. And this is a big one. A trustee can borrow money as part of a limited recourse borrowing arrangement (LRBA). 

LRBAs

An SMSF is allowed to borrow in order to purchase a single acquirable asset – provided the requirements under sections 67A are satisfied.

s67A (1) (a):  …the money is…for the acquisition of a single acquirable asset…, (b)  …held on trust … and (c)  the…trustee has a right to acquire legal ownership …and (d)  the rights of the lender …are limited to …the acquirable asset; and  (e)  … the …trustee’s rights are limited … to the acquirable asset; and  (f)  the acquirable asset is not subject to any charge …except as .. in (d) or (e).

This single acquirable asset is then put into a bare trust with the lender only having recourse against this one asset in case of a default. Other fund assets are safe. 

In the past the loan for the LRBA might have come from a third-party like a bank. But nowadays it usually comes from a related party since most banks no longer lend to SMSFs. 

If the loan comes from a related party, you need to act at arm’s length. You do this by sticking to market terms and conditions.

Safe Harbour

But acting at arm’s length is not that straight forward, so the ATO gave you PCG 2016/5 as a safe harbour.

PCG 2016/5 – arm’s length terms for Limited Recourse Borrowing Arrangements established by self-managed  superannuation funds (issued on 6 April 2016)

If your LRBA complies with this PCG, the Commissioner will accept your LRBA as being at arm’s length.

If you choose not to follow the safe harbour rules – they are not compulsory – you need to demonstrate that the terms of the borrowing arrangement – including a benchmarked interest rate – are at arm’s length. Otherwise the income generated from the asset is considered non-arm’s length income and hence taxed at top marginal rates.

So these are the six superannuation investment rules you need to follow as the trustee of an SMSF. 

 

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Minimum Pension Payments

My Super When I Die

Cash Your Super Before You Die

 

Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

Liability limited by a scheme approved under Professional Standards Legislation.

Cash Your Super Before You Die

Cash Before You Die

Cash your super before you die. Make sure your super is gone by the time you go, unless you have a tax dependant.

Cash Your Super Before You Die

You probably wonder why. Having super is good. Being frugal is good. Leaving super for your children is good. It sounds like a nice thing to do. And it is… but if you don’t cash out in time, your adult children will receive less than you think.

If you wait too long, your super will leave a nasty tax-bill behind. And your children will remember what – your super or the tax bill that came with it? 

But you probably shake your head and remember the terrible time when your spouse died. You had both just turned 65. And back then you received his or her entire super without any tax to pay. So why can’t you do the same for your children? 

Death Benefit Dependant

The answer is just one phrase – tax dependant – also referred to as a death benefit dependant.

Death benefit dependant is the term the ITAA97 uses. Tax dependant is the colloquial term most people, including the ATO, use. Two different words. Same thing.

As a spouse you qualified as a tax dependant. A spouse, a child under 18 as well as anybody in an interdependency relationship with or financially dependent on the deceased is considered a tax dependant. And tax dependants receive the lump sum death benefit tax-free. 

But your children are neither under 18 nor live in an interdepencey relationship with or are financially dependant on you. So they don’t qualify as tax dependants. And so they will pay tax on any taxable component that comes their way.

Sole Purpose

This concept of a tax dependant links back to the sole purpose of superannuation. Its sole purpose is to provide for your retirement and/or your tax dependants when you no longer can. For that purpose your super received massive tax concessions over the years.

But anything that is left over when you die without tax dependants clearly wasn’t needed for your retirement or tax dependants. So the legislator wants those concessions back.

Those concessions were never intended for your financially independent children. And so they charge your adult children a so-called ‘super death tax’. So this is why you need to cash your super before leaving it to a non-tax dependant.

Cashing Super

Cashing your super just means moving it out of the super environment. You do this by paying a member benefit to yourself – be it as a pension or a lump sum. 

A lump sum payment can be in cash. But a lump sum can also be in specie. So you don’t sell the asset, but transfer the title from the corporate trustee to yourself.

When To Cash In

But picking the right time to cash your super is not easy. Here are six factors to consider, some predictable, some impossible to predict.

# 1   Family Situation

While your children are little and your spouse alive, you have plenty of tax dependants. So you don’t need to worry about super death tax. You need to worry about life insurance.

But when your spouse has passed away and all your children are financially independent, then super death tax is an issue, since you no longer have any tax dependants.

# 2   Taxable Components

Your super consists of a tax-free and taxable component but either might be nil. 

If your entire super is in the tax-free component, you don’t need to worry about super death tax. None of your beneficiaries will pay any tax on your super. 

But if most or all of your super is in the taxable component, then a 30% tax rate for any untaxed and 15% for any taxed element looms large over your non-tax dependants.

# 3    Marginal Tax Rate

The higher your marginal tax rate, the more you save by leaving your super in your fund. If your marginal tax rate is 45% tax + 2% Medicare, then leave your super where it is as long as you can.

If you have no other income and your super earnings are under the tax-exempt threshold, then you pay no tax anyway – be it within super or outside of super. So then you might as well take it out.

# 4   Timing

It is difficult to get the timing right. If you cash your super too early, you might pay more tax outside of super than your beneficiaries pay in death tax.

But if you don’t cash your super before you die, you might waste part of your family’s legacy on super death tax. 

# 5   Capital Gains Tax

When you die, your SMSF must either sell the assets and then pay cash or transfer the title to pay in specie. Either way – sale or transfer – you are looking at a CGT event and hence a potential realised capital gain.

While you are alive and in pension phase, a realised capital gain isn’t an issue since your super is exempt from tax anyway. But once you are gone, a realised capital gain might result in a large tax bill for your children to deal with.

# 6    Fate

Call it fate, destiny, divine intervention or something else.  Accidents happen. Nobody knows how much time they have left.

_____

So these are six factors to consider to work out whether and when you should cash your super. If you get stuck, please email or call us. There might be a simple answer to your query.

 

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My Super When I Die

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Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

 

Liability limited by a scheme approved under Professional Standards Legislation

Minimum Pension Payments

Minimum Pension Payments

When you start a pension, you need to make minimum pension payments. If you don’t, your SMSF loses its tax exempt status. So getting this right is important.

Minimum Pension Payments

Once you have started a pension, you need to withdraw a minimum amount each year. You calculate this minimum amount by applying a percentage to your pension account balance as of 1 July.

Percentage

This percentage is usually:

4% if you are under 65

5% if you are under 75

6% if you are under 80

7% if you are under 85

9% if you are under 90

11% if you are under 95

14% if you are 95 or older

But until 30 June 2022 these percentages have been cut in half to help you cope with the COVID-19 crisis. So at the moment you only need to withdraw:

2% if you are under 65

2.5% if you are under 75

3% if you are under 80

3.5% if you are under 85

4.5% if you are under 90

5.5% if you are under 95

7% if you are 95 or older

So these lower percentages to 2020/21 (1 July 2020 to 30 June 2021) as well as 2021/22 (1 July 2021 to 30 June 2022).

Purpose

Why a minimum pension payment? Why not just leave this up to you? The answer lies in the sole purpose in s62 SIS Act.

Superannuation is to provide for your retirement. It is not meant to be a tax effective vehicle of wealth transfer from one generation to the next. And so the legislator wants your super gone by the time you go. Hence the minimum pension payments.

Age

You take the age as of 1 July. How old were you on 1 July? This will determine the relevant percentage.

Member Account Balance

You apply the percentage to your member account balances in pension phase. Your account based pension balance (ABP). Not your total superannuation balance, which also includes accounts in accumulation phase.

And also not your transfer balance account (TBA). The TBA is about what you move into pension phase. Not about what happens after that. So investment earnings (or losses) and pension payments don’t affect your TBA. But they affect your ABP and hence your minimum pension withdrawals.

Date

If you started your pension before the 1 July, you use the balance as of 1 July. If it commenced during the year, you use the pension balance as of that date – the commencement date. So you need to determine your balance including investment earnings and losses as of that day. So most pensions start on 1 July. Saves you extra work.

Pro Rata

If the pension commences after 1 July, the minimum payment amount is calculated proportionately to the number of days remaining in the financial year, starting from the commencement day. Another reason why starting your pension on 1 July is less work.

Rounding

The minimum amount is rounded down to the nearest 10 whole dollars.

1 June

You don’t need to worry about minimum pension payments in a year if the pension commences in June of that year.

Below Minimum

What happens if you didn’t pay enough out during the year? You thought you had taken out plenty but as it turns out it wasn’t enough. What now? There is bad news and there is good news.

No Longer ECPI

The bad news is that you lose the pension status for that account. The super income stream for that account is taken to have ceased at the start of that income year for income tax purposes. So that pension account loses its ECPI status. ECPI stands for Exempt Current Pension Income.

Commute Back To Accumulation as of 1 July

So you need to commute that account based pension back to accumulation as of 1 July and hence pay tax on any income or capital gains during that income year. Any payments you made during the year from that account are super lump sum payments. And you need to report the commutation in any TBAR you lodge for that fund.

Commissioner’s Discretion

The good news is that there is a way out of all this. You might be able to apply the Commissioner’s discretion if you made an honest mistake or matters outside of your control prevented you from making the minimum pension payment.

But the honest mistake only counts as such if the shortfall is less than 1/12 of the minimum payment. 1/12 as in one payment of 12 monthly payments per year. And you need to make the catch-up payment as soon as you become aware of the shortfall. If you do that, your pension can keep its ECPI status and no need to commute.

Percentage

Going back to the list of percentages, can you see how the percentage accelerates? It starts with an increase of 1%, then 2% and then a jump by 3%.

And can you see how the intervals gets shorter? It first is 10 years and then increases to increments of 5 years. So your percentage will increase significantly as you age.  But at the same time your opening balance will decrease as you make payments, unless your investment returns exceed your pension payments. So whether your  pension payments increase or decrease from year to year depends on how this plays out.

Does all this make sense? Just call me if you have a question. My mobile number is 0407 909 779 – Heide. There might be a simple answer to your query.

 

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An edited version of this article is also published on the Tax Talks website for tax agents.

Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

 

Liability limited by a scheme approved under Professional Standards Legislation

what happens to my super when i die

My Super When I Die

What happens to my super when I die? Did you ever ask yourself this question?

My Super When I Die

Your super is for your retirement. But what happens to the super you leave behind?

Compulsory Cashing

While you are alive, there is no requirement to cash your super.  When you meet a condition of release, you are free to cash it, but you don’t have to. You could just leave it all in accumulation and not touch a cent. Or move it to pension and only withdraw the minimum pension payments.

All this changes when you die. Your death is a compulsory cashing event – the only one in super. It means that the remaining balance in your member account needs to go somewhere – be it as a pension or a lump sum. Your super accounts can’t continue as if nothing happened.

Reg 6.21 SIS Reg: (1)  …a member’s benefits in a regulated superannuation fund must be cashed as soon as practicable after the member dies.

Benefit Payment

Other types of trusts distribute capital and income, but superannuation doesn’t make this distinction. Super funds – even though they are a type of trust fund – only pay benefits – be they member benefit or death benefit payments. 

While you are alive, your super is yours. Any super payments go to you. And so this is called a member benefit.

Once you have passed away, paying you is no longer an option. And so your super is paid to others. This is called a death benefit payment.

So there is a simple answer to your question, “What happens to my super when I die?” It will all be paid out as a death benefit.

But the tricky bit is who, how and when? The devil is in the details. There are 4 questions you need to ask to get an answer.

Question # 1    Who?

Who gets your super depends on six factors. Some outside of your control. Some within. 

1 –  SIS Act

The SIS Act sets the framework. Your super can only go to your SIS dependants or your estate. 

Your SIS dependants per s10 SIS Act are your spouse or de-facto spouse (but not a former spouse) and all of your children. No matter what age. As well as anybody in an interdependency relationship with you. An interdependency relationship means that you lived together and one depended on the other for practical support and care at the time of your death. 

And then there is one other group that qualifies as your SIS dependant, although not specifically mentioned in s10 – anybody financially dependent on you at the time of your death.

Your super goes to your SIS dependants and / or your estate. But to what extent – who gets how much  – the SIS Act doesn’t say. So you look further.

2 – Trust Deed

Every super fund has a deed. And this deed sets out what trustees can or can’t do with the super in their care.  A deed might allow or prohibit a reversionary pension, a binding or non-binding death benefit nomination or something else. Or it might be silent on any of these points.

A trust deed just says what COULD happen to your super. It doesn’t say this WILL happen. So you look further.

3 – Trustee’s Discretion

And then you might leave it at that. You might do nothing or make a non-binding death benefit nomination. Either way, you let the surviving trustees decide after your death – within the SIS Act and trust deed – who gets how much of your super.

4 – Specific Instructions

Or you take control.  You make your pension reversionary or sign a binding death benefit nomination – provided SIS Act and trust deed allow you to do so.

Making your pension reversionary means that your pension doesn’t stop upon your death but reverts to the reversionary beneficiary when you die.

A binding death benefit nomination will force the trustee to distribute your super as stipulated in the binding nomination,

5 – Testamentary Will

To the extent that your super ends up in your estate, it will only be distributed according to your wishes if you have a will that covers your super. If you don’t, then your legal personal representative (LPR) will decide who gets your super.

6 – Choice of Trustee

You can have the best legal set up in the world, possession is still 1/10th of the law.  If you don’t want somebody to get your super, don’t bring them into your SMSF.

Question # 2    How and When?

When you die, your super needs to go somewhere else. It usually gets cashed out as a lump sum, leaving the low-tax zone that super is – the legislator’s preferred option.

But under certain conditions your super can stay within the super environment and just move as a pension to another super account. The legislator doesn’t like this option one bit, so they put four measures in place that make it much harder to keep your super in the super zone.

1 – Selected Few

Only a selected few of your SIS dependants can receive their death benefit as a pension per reg 6.21 (2A) SISR and hence stay within the low-tax zone. Your spouse can. Anybody in an interdependency relationship with you can. Any of your minor or disabled children can. And any adult child under 25 and financially dependent on you can as well until they turn 25.

But your financially independent adult children can’t. They can only receive a death benefit lump sum from your super. And that means the assets leave the low-tax zone.

2 – Cap on Pensions

Pension accounts enjoy a 0% tax rate, but are capped at $1.6m – the transfer balance cap (TBC). So just because a SIS dependant qualifies to receive a death benefit pension from you doesn’t mean they can. 

Let’s say you started a reversionary pension on 1 July 2020 worth $1.6m and died that day. Your spouse  – with a transfer balance account (TBA) of $1m so far – receives your reversionary pension. To comply with the TBC, they can only credit $0.6m to their TBA and need to cash the remaining $1m.

3 –  No Accumulation

Whenever your super can’t move into a beneficiary’s pension account, it needs to be paid out. It can’t move into a beneficiary’s accumulation account. If it could, your super could stay there forever – passing from generation to generation – forever enjoying a low 15% tax rate in accumulation.

So in the example above, your spouse can’t move the excess $1m into accumulation, but needs to cash it out as a lump sum.

4 – No Mixing

To track compulsory cashing, you need to keep a death benefit pension separate from other pensions, so that means separate pension accounts.

Question # 3    How Much Tax?

There is no inheritance tax in Australia. But your non-tax dependants pay ‘super death tax’ on the taxable component of your super. How much depends on the following:

1 – Tax Dependants

Your spouse – including any former spouse – your children under 18 as well as anybody financially dependent or in an interdependency relationship with you are your tax dependants. Anybody else – including your financially independent adult children – are not.

2 – Taxable Components

Any super benefit consists of a tax-free and a taxable component. Tax-free components pass to beneficiaries tax-free. Taxable components trigger super death tax if paid to non-tax dependants, usually at 15%.

A taxable component consists of a taxed and an untaxed element. For most Australians the untaxed element is nil, but if it isn’t, it is taxed at 30%.  The rest – any taxed element – is taxed at 15%.

3 – Look Through Approach

Tax law applies a look-through approach.  Whether a beneficiary receives the death benefit directly (from your fund) or indirectly (via your estate) doesn’t change how the benefit is taxed. But it might affect whether the Medicare levy applies or not.

Question # 4   And Your SMSF?

If there is at least one other member, your SMSF will continue life as usual after you die. But if there isn’t, what then?

If your SMSF has no corporate trustee, then your SMSF will cease to exist once all assets are paid out.

If your SMSF does have a corporate trustee, then the loss of a director – even if you are the sole director – does not end a company and hence does not end your SMSF’s corporate trustee as such. But with no fund assets or beneficiaries left, the fiduciary relationship ends and your corporate trustee becomes an empty shell.

________

So this is what happens to your super when you die. It is all in your hands if you want it to be.

If there are two things you take away from this article, please let it be this:

1 – If you want your super to go to your adult children, take it out of super before you die. If you don’t, your children will pay super death tax.

2 – Only do an SMSF with somebody you want your super to go to. It will save your intended beneficiaries a lot of headaches.

And one last thing in parting. You might hear the term ‘death benefit dependant’. This is the official term in s302-195 ITAA97 for a tax dependant. 

MORE

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SMSF Legal Framework

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Disclaimer: numba does not provide personal financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

 

Liability limited by a scheme approved under Professional Standards Legislation

SMSF To Do List

Here is a handy SMSF to do list so you can manage your SMSF from start to finish. A short bucket list for your SMSF.

SMSF To Do List

Your SMSF will go through different stages that will mirror your life cycle. Every stage has different hurdles to take. So here is a step by step SMSF to do list.

Step 1 – Set Up Your SMSF

Your SMSF is not a separate legal entity, but a fiduciary relationship – governed by a deed – between trustee and members about fund assets. So to establish your SMSF you need a deed, a trustee, members and fund assets.

# 1   Get a Deed

Your SMSF is only a fiduciary relationship, which your SMSF deed will govern.

# 2    Appoint Trustees

Your SMSF needs at least one trustee. You could choose individual trustees, but don’t. Go for a corporate trustee, ie a company. Every member must be a director of this company. And every director must be a member. 

# 3    Select Members 

Your SMSF needs at least one member but can have up to four (soon to be six). An SMSF member must not be the employee or employer of another member, unless they are related. 

Only choose fellow members you want your super to go to. So if you want your fund assets to go to your children of a previous marriage, don’t share an SMSF with your current spouse. 

# 4    Set Assets Aside

You get assets into your SMSF by making a contribution and / or transferring your super from another super fund to your SMSF. 

# 5    Write a Strategy

Every year, all members of your SMSF need to review and sign an investment strategy that takes each member’s risk profile into account. In this document you list your SMSF’s investment objectives, review the fund’s diversification, liquidity and solvency and decide whether to hold insurance within the fund. 

# 6    Get an ABN and TFN

Once your SMSF has been willed into existence, you need to get a TFN and ABN for your SMSF. Your corporate trustee will have received an ACN upon registration.

# 7   Sign Trustee Declarations

As a new trustee or trustee director, you need to sign your SMSF trustee declaration within 21 days of joining. In this form you confirm that you understand your duties and responsibilities as trustee. 

# 8    Stay in Australia

To receive concessional tax treatment as a complying super fund, your fund must  to be an Australian super fund (among other conditions). To be an Australian super fund, your SMSF must have its central management and control in Australia. And central management and control includes all trustees or trustee directors.

———–

Step 2 – Contribute to Your Fund

So now that your fund is established, it is time to accumulate funds. 

# 9    Mind the Cap

The annual caps for concessional and non-concessional contributions are $25,000 and $100,000 respectively – both subject to age and work test, and the later also subject to your total superannuation balance (TSB).

# 10    Use Current Cap Space Later

If your TSB is less than $500,000, you can carry unused concessional cap space into the next 5 years. 

# 11    Use Future Cap Space Now

If your TSB is less than $1.6m and you are under 65, you can contribute 3-years’ worth of non-concessional contributions in one year. So you can use this year’s cap plus the cap of the next two years all in one hit.

# 12    Track Your TSB

Simply speaking your total superannuation balance – TSB – is the total of your accumulation and pension accounts. It plays a central role – various concessions use it as a cut-off point. So track your TSB.

———-

Step 3 – Invest Fund Assets

Now is the time to invest your super. And there are strict rules about what you can and can’t do.

# 13    Avoid Mates Rates

Your SMSF is not allowed to make an investment per s109 (1) (a) SIS Act where the parties to the transaction are not dealing with each other at arm’s length.

# 14    Avoid Related Party Deals

Your SMSF is not allowed to acquire any assets from a related party – not even at arm’s length – unless the asset is either a listed security or business real property or the total of your in-house assets would not exceed 5% of the fund’s total assets.

# 15    Avoid Personal Use

You can invest in collectables and personal use assets – so-called ‘s62A items’ – such as artwork, jewellery, artefacts, coins, antiques, wine, cars, books and recreational boats. But you can’t allow a related party to use, lease or store them at their private residence per s62A SIS Act and s13.18AA SIS Regs. 

# 16    Avoid Loans to Members

Your SMSF is not allowed to lend money or provide other financial assistance to members or their relatives per s65 SIS Act .

# 17    Avoid Loans to SMSF

Per s67 SIS Act your SMSF is not allowed to borrow money for more than 90 days and even under 90 days only under very limited circumstances. But there is one way around. An LRBA.

# 18    Use an LRBA Instead

A limited recourse borrowing arrangements – LRBA – means that the geared asset is put into a bare trust. This way the lender only has recourse to that particular asset.

# 19    Have Sole Purpose

And above all else, maintain your SMSF solely for the purpose of providing retirement benefits to you or death benefits to your beneficiaries if you die. 

————

Step 4 – Access Your Super

Super is about saving for your retirement. And this means that you usually can’t access it until you do.

# 20    Meet a Condition of Release

While alive, you can only access your super upon meeting a condition of release. There are four general conditions of release linked to your age and your employment status. And then there are various special conditions of release, for example permanent disability, terminal illness or the first home buyer super scheme. 

# 21    Start a Pension

Starting a pension involves a bit of paper work. You need to request the pension as a member and then approve it as a trustee.

# 22    Track Your TBA

Your transfer balance account (TBA) tracks the amounts you move in and out of pension mode. Even if you are a member in various super funds, you only ever have one TBA. Your TBA can’t exceed $1.6m, the current TBC. 

# 23    Report Events

The ATO wants to track your TBA. For that purpose, you need to report any events that will result in a debit or credit to your TBA. Reportable events are the start of a new pension including a reversionary pension, LRBA payments, personal injury settlement payments as well as commutations.

# 24    Make Minimum Pension Payments

Once you start a pension, your SMSF must pay you a minimum pension amount each year. The amount is a percentage determined by your age and applied to the opening balance of your pension account. 

——-

Step 5 – Say Good Bye

One day you have to call it a day and say good-bye. You either cash out your super and close your SMSF. Or you let it ride to the end and then let your super assets pass to your dependents or otherwise your estate.

# 25    Identify SIS Dependents

Only your SIS dependants can receive your super directly from your super fund. Everybody else can receive your super, but only through your estate.

# 26    Determine Type of Death Benefit

Your super is usually paid out as a lump sum. But some SIS dependants can choose whether they want a lump sum or a death benefit pension. 

# 27    Identify Tax Dependants

Tax dependants receive all death benefits tax-free. Everybody else will pay tax on the taxable component. 

————-

Step 6 – Keep House

And then just some housekeeping rules that apply to your SMSF at all times, no matter at what stage in the SMSF life cycle you are at.

# 28     Lodge an Annual Return

Your SMSF needs to prepare and lodge its annual return by the due date. 

# 29    Get Audited

Your SMSF needs to get audited each year by an approved SMSF auditor, who is registered with ASIC. 

# 30    Tell the ATO

As an SMSF trustee you need to notify the ATO of any changes to trustees or trustee directors, members or contact details within 28 days.

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So this is your SMSF to do list. We didn’t think it would be this long. It is amazing how much there is. If you have a question, please reach out. We love to help.

 

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Disclaimer: numba does not provide specific financial or tax advice in this article. All information on this website is of a general nature only. It might no longer be up to date or correct. You should contact us directly or seek other accredited tax advice when considering whether the information is suitable to your circumstances.

 

Liability limited by a scheme approved under Professional Standards Legislation