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Incorrect Warning issued on Deeming clauses on SMSF Trust Deeds  


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Number 8 of 2010
 May  2010

 
 
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A warning newsletter comment on our SMSF Trust Deed 
 
 
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Macquarie Group Services (competitor SMSF Trust Deed provider not related to Macquarie Bank) undertook a review of 10 other SMSF deeds along with our SMSF Trust Deed.

 

Macquarie Group Services (MGS) then circulated an article claiming that all other SMSF Trust Deeds including our SMSF Trust Deed relies on deeming clause to pay tax free pensions which makes the fund non-complying.

 

Conclusion reached in their article is that by using our deed, pension received by pensioner from their SMSF will be taxable in their hands and the fund will not be able to claim exempt pension income, further, the SMSF fund may become non-complying.

 

We have discussed MGS claim with our solicitors Batallion and we disagree with MGS conclusion.

 

Evidently, MGS intention is to scare our customer base by planting a seed of doubt in their mind. Our earlier reaction was to ignore this article, however MGS has attempted to discredit our borrowing document earlier where they were clearly incorrect, this time it is our SMSF deed with 10 other respected suppliers. Our reply for MGS is to tell that their "bulldoze marketing strategy" has no place in this respected profession.

 

We will be sending a copy of this response to all other 10 SMSF Trust Deed providers so that they can also discredit MGS incorrect claim.

 

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The  following 6 issues raised by MGS in their ariticle that is incorrect
 
 1) Our SMF Trust deed has deeming clause which prompted ATO Taxpayer Alert TA 2010/2

 

This alert was sent out by ATO to alert taxpayers of SMSF Trust Deeds which try and circumvent excess contribution tax. These deeds contain a clause which empowers the trustee to set aside contributions above the contribution cap in a separate trust within the SMSF and thus remain as not reported as a contribution. These contributions are then returned to the member before satisfying any condition of release.

 

These arrangements are ineffective and ATO claims that these contributions should be reported and the fund is liable for excess contribution tax.

 

Our SMSF Deed does not contain these arrangements.

 

 

2)    Our SMSF Trust Deed relies on "Deeming Clause" which are ineffective as far as Reg 1.06 and 1.07D is concerned

 

First let us explain what deeming clauses are, there are two types of deeming clauses:

 

a) To rectify inconsistency

 

This clause will usually say "If any provisions of this deed are inconsistent with superannuation law then those provisions shall be severed to the extent of that inconsistency. The superannuation law shall apply to the extent of any inconsistency."

 

b) Catch all clause

 

This clause will usually say "Any requirement of superannuation law governing the XYZ SUPERANNUATION FUND which is not included in this deed shall be deemed to be included in the deed."

 
Our SMSF Trust Deed has these clauses and most quality SMSF trust deeds are expected to have these clauses.

 
 

 

MGS claims that our SMSF Trust Deed relies on these deeming clauses where these deeming clauses cannot be used

 
MGS cites under Regulation 1.06 and Regulation 1.07D and claims that a deeming clause cannot be used and specifically "SMSF trust deed must spell out" the pension conditions because SIS Regulations 1.06 and 1.07 enforces the SMSF Trust Deed must contain  the pension conditions, or else pension paid by the SMSF will not be a complying pension.

 

In other words, what MGS article is trying to say that since these two regulations insist that "rules of the fund" must include these two provisions in the "SMSF Trust Deed" to pay a superannuation law complying pension - since all the 11 SMSF trust deeds do not have these two specific clauses - but have deeming clauses - all the 11 SMSF deeds are thus relying on these deeming clauses, since they do not have specific clauses.

 

Further the deeming clauses do not work as regards to Reg. 1.06 & 1.07D however, deeming clause can cover Section 52(5) of SIS Act covenants but not in Reg. 1.06 and Reg. 1.07 as no such covenants are included in these regulations.

 

Before we go into detail let us first understand what these regulations are about, see below the regulations:  

 

 

ATMReg 1.06 (1) If a benefit is to be taken to be a pension if the rules of the fund "do not permit the capital supporting the pension to be added to by the way of contribution or rollover after the pension has commenced.

 

Reg 1.07D a benefit meets the standards of this regulation if, under the applicable contract or rules, the annuity or pension cannot be commuted, in whole or in part, except in the following circumstances: (among other issues) a commutation of an income stream without the minimum payment being made (Reg 1.07 (1) (d)).

 
 
 
 
What is MGS CONCLUSION?

 

MGS conclusion is since the two clauses are not in the "SMSF trust deed" AND since you cannot rely on "deeming clause" hence the two clauses are not in the "rules of the fund". Further, since the two clauses are not in the rules of the fund, any pension paid by the fund is a not a valid pension or a pension complying to superannuation law.

 

Unfortunately MGS is wrong.

 

As SIS Act defines "rules of the fund" to include the SMSF Trust Deed and other documents, under Section 10 of SIS Act, rules of the fund are defined as :

 

governing rules, in relation to a fund, scheme or trust, means:

  (a)      any rules contained in a trust instrument, other document or legislation, or combination of them; or

   (b)     any unwritten rules; governing the establishment or operation of the fund, scheme or trust.

 

Clearly "rules of the fund" is not only the trust instrument (Trust Deed) but also "other document" or "combination of them". This means that these two conditions do not have to be in the SMSF Trust Deed as long as they are in a "document" which is a part of the "rules of the fund".

 

BALLONSThe member / trustee should not only rely on the SMSF Trust Deed for the rules of the fund but also on "other documents" including any pension documents. This pension document is an important part of the rule of the fund as it sets out all the pension conditions which the member is entitled from the SMSF and cannot be avoided at the commencement of a pension.

 

This means that commencing a pension within a SMSF should be done with preparing proper pension agreement & documents. And these documents along with SMSF trust deed will be the governing rules of the fund and not alone the trust deed. 

 

Hence when a member intends to convert his accumulation account to a pension account* - certain conditions** have to be agreed between the member and the trustee of the fund. These documents are sold separately by us under "pension documents" and include the requirements of Reg 1.06 and Reg. 1.07D.

 
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3) MGS claims that our deed has Extensive repetition of Act and Regulations and is spread out over 77 pages

 

We cannot comment on this issue, except that the Act and Regulations together are about over 1200 pages and our SMSF Deed and PDS pack has only 77 pages, of which 8 pages are title pages and table of contents including 3 blank pages for correct double sided printing.

 

Since our deed is written in plain English the SIS Act has complex terminology, which is further defined in 8 pages. Our SMSF deed is only 30 pages with schedules and a detailed PDS taking the remaining 31 pages.

 

 

 Click here to learn how to add members to your SMSF 

 
 
 4) We charge extra for Pension Kits

 

By providing a free Pension Kit (we must admit, we have not reviewed MGS product - we just do not have the time like MGS does), does not mean that the trustee will be able to use it to prepare complete pension documents, as with time, pension conditions as set out in SISA and SISR change - e.g. pension kit provided in 2006 is completely useless for pension now. Hence providing a Pension Kit now for a member intending to go on pension in a year could be dangerous.

 

There are many issues, such as taxation, retirement, centrelink which a member has to consider before commencing a pension. Further very high level of calculations are required to work out "Tax Free" component if there is any Pre 1983 component in the superannuation interest before pension documents can be finalized.

 
 

Click here to learn how to convert Allocated Pension to Account Based Pension 

 
 
Then there are issues regarding Reserves in the fund and deciding who will be a Reversionary beneficiary, if any, in case of death of the member. In our opinion no "one kit" is suitable to all circumstances. For that reason we have developed  very sophisticated Pension Documents module which tailors the documents as per each member situation.

 

Our Pension documents for an account based pension can go up to 36 pages. Account Based Pension is a financial product and included with our documents is a detailed Product Disclosure Statement which gives out all the features including advantages, disadvantages, tax benefits, centrelink issues and all the pension conditions in plain English to the member who is intending to commence an income stream from a SMSF.  

  
  
 
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5) We charge extra for Roll back kit

 

We do not have a product called Roll back Kit. However our deed does allow the member to roll back their pension account to accumulation account. Please read below.

 

79.   The trustees may, on the request of a member, rollover or transfer the benefit of the member from the pension account of the member to the accumulation account of the member, on a commutation or rollover of a pension within the fund as prescribed in superannuation law. The trustee may accept this rollover in the accumulation account of the member.

 

All that is required is the member writing to the trustee to convert his superannuation interest from pension account to accumulation account. For the benefit of those who are intending to use this strategy, here is what the member has to write (By the way, it is free):

 

Member will write to the trustee;

 

"Trustee Name

I would like my pension commenced on xxx date to be converted (rolled back) to accumulation phase as allowed by clause 79 of the trust deed as from the date of this notice.

Signed

Member

Date"

 

Trustee will close the pension account and transfer the balance to an existing accumulation account of the member or commence a new accumulation account and write to the member

"Member Name

We have closed your pension account and transferred your superannuation interest to your existing accumulation account / a newly created accumulation account {delete one} from xxx date"

Signed

Trustee

Date"

 

 

 

We do not have a product called Reserving Kit. However our deed does allow the trustee to transfer income of the fund to a specially created reserve account. Please read below.

 

110. The trustee may transfer a portion of the income account, at its own discretion, available for distribution, to any reserve account created in the fund.

 

Having a reserve account does not suit every fund and is based on future anti detriment payments which the fund may or may not be entitled to pay depending on availability of dependants upon death of a member.

 

Further if the member is on pension and there is a reserve account in the fund, an actuarial certificate will be required each year if the reserve account are invested together with assets supporting a pension as assets supporting the reserve account cannot claim exempt pension income.

 

If the SMSF wants to allocate some income to a reserve account,  all that is required is the trustee minuting the amount each year. For the benefit of those who are intending to use this strategy, here is what the trustee has to minute (for free);

 

Trustee Minutes

 

"It has been decided to allocate $xxxx from income of the fund to the reserve account. The balance income of the fund $xxx is to be allocated as below

Member 1   $ xxxx

Member 2   $ xxxx

Member 3   $ xxxx

Member 4   $ xxxx"

 

 

 
 
 
 

Our Last word to MGS

 

By condemning others and deeming other people and the thought of profiting from mistakes made by others may satisfy your sadistic ego, but will never give you peace.

 

Concentrate on drumming on what is good about your product instead of pointing what is wrong with colleagues - this way; you will make friends instead of enemies and come out as a winner in the long run. Finally, remember, Live and Let live & the lord has already decided that "all are winners".

 

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*) Our clause 147 states

 

A member is entitled to all of their benefits to be paid as a pension from the fund upon attaining preservation age. On written request from a member, the trustee may commence paying such a pension to the member in accordance with superannuation law.

 

**) The following is extracted from our Product Disclosure Statement of our pension documents

Ø       Once the pension has been purchased by the member of the fund, the members should understand that after the commencement day, it cannot accept any addition by way of contribution or rollover to the purchase price of the pension. However, new contributions can be made to a separate newly created accumulation account.

 

 

The following clauses are extracted from our Pension Agreement

 

8) The member must ensure that the total pension withdrawal in a financial year is above the minimum limits legislated in the SIS Act and the SIS Regulations.

 

10)   The member understands and agrees that after the pension has commenced, the member will not be able to contribute any more money to the pension account.

 

11)   The trustee agrees to open another accumulation account for the member for new contributions by the member or member's employer or for rollovers from other funds

 

13)   The trustee agrees that at the commencement of each financial year, the trustee will advise the member the minimum or maximum amount, in case of simple pension which the member can withdraw, as a pension in the financial year.

 
 

This email is sent by
Manoj Abichandani SSA SSAud
SMSF Specialist Advisor
SMSF Specialist Auditor
Team Leader
Superannuation Technical Division
www.trustdeed.com.au

SMSF Specialist Advisor


 
 
 




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