Most new SMSFs are opting to establish a corporate trustee - and there are many advantages to guiding SMSF clients to do so - existing funds may also be able to change their trustee structure, and doing so is easier than you might think.
According to the ATO, the vast majority of SMSFs still have individual trustees. However, this trend is set to change as accountants and advisers are recognizing the advantages of corporate trustees.
For instance, having a corporate trustee can make it substantially easier to administer the fund in the event of a major change, such as the death of a member or including kids in the super fund. It is also a requirement of most limited recourse lenders that the SMSFs they deal with have a corporate trustee.
The process of changing from an individual trustee structure to one with a corporate trustee is not a complex as you may think.
1. Consider the reasons for changing trustee structure
Before considering the best type of trustee for each of your SMSF clients, it is worth making sure you have a clear understanding of the role and responsibilities of an SMSF trustee. For starters, an SMSF trustee must act in accordance with the provisions of the SIS Act; the rules set out in the fund's own trust deed and other general rules such as those set out in tax and trust law.
The SIS Act contains covenants or rules that impose certain requirements on Trustees and are deemed to be included in the trust deed of every regulated fund. These covenants reflect the duties imposed on a Trustee under trust law in general.
They require Trustees to: act honestly in all matters; exercise the same degree of care, skill and diligence as an ordinary prudent person; act in the best interest of the fund members; keep the assets of the fund separate from other assets (e.g. the Trustee's personal assets); retain control over the fund; develop and implement an investment strategy; and allow members access to certain information.
Ultimate responsibility and accountability for running the fund in a prudent manner lies with the Trustees.
If a Trustee fails to act in accordance with the rules and obligations imposed on them, the Trustee may be sued by affected fund members and/or may jeopardize a fund's eligibility for tax concessions. In addition, the SIS Act imposes substantial penalties on Trustees who have failed to carry out their duties.
So, with a clear trustee job description in mind, let's consider the pros and cons of individual versus corporate trustees.
As a starting point, consider a scenario where Mr and Mrs Smith are the only members, and individual trustees of their SMSF. If Mrs Smith dies suddenly, as the sole remaining member of the fund, Mr Smith cannot also be the sole individual trustee as per the definition of a self managed super fund as outlined in Section 17A of SIS Act.
For the fund to remain legally valid (and taking into account the six-month period of grace allowed in the SIS Act), the surviving fund member will either need to appoint another individual trustee or move to a corporate trustee. This is the most obvious example of how setting up an SMSF with a corporate trustee from inception would save stress and uncertainty at such a critical time. Once the company is established to act as trustee, its lifespan is not dependent on that of the members and it can continue to administer the SMSF seamlessly for generations.
Membership changes are also made easier to manage with a corporate trustee in place. If a new member joins the fund or a member leaves, it is just a matter of appointing the new member as a director of the corporate trustee or removing the old member as a director. Name on the ownership document of the assets of the SMSF remain in the name of the corporate trustee. They don't have to be changed to reflect the addition or deletion of individual members to the fund. This is a substantial administrative saving.
This is just a snapshot of the key advantages of moving to a corporate trustee but they are important enough to consider if you are a SMSF trustee who may not have reviewed their trust deed or trustee arrangements for a while.
Now to the finer points of how to make the change from one trustee structure to another.
2. Consult or change the trust deed
Some trust deeds are very prescriptive and restrictive in terms of the appointment and removal of trustees. As we've mentioned before in this newsletter our SMSF trust deed takes a descriptive approach and allows for either individual trustees or a corporate trustee.
However, if you have clients who are not currently using our deed, we believe the safest way to ensure the switch from individuals to a corporate trustee is seamlessly completed is to use our online system by clicking here, which will enable you to complete the change for an SMSF client in less than 20 minutes, adhering completely to the requirements of s. 17A of the SIS Act.
We will also email you all related legal documents required to make the change, including resignation of individual trustees, minutes of members/trustees to use the replacement trust deed, consents to act as directors of the new trustee companies, a PDF form to advise the ATO of "change of details" with ATO instructions.
3. Create a company
One common mistake is the temptation to use an existing company as SMSF trustee. This can be messy and is not recommended, particularly if it is a trading company operated as a business by one or more SMSF members or if it is the company which acts as trustee for a family trust associated with the SMSF members.
Consider how the use of such a company could put the directors in a very difficult position in respect to their responsibility to keep SMSF assets separate from personal assets. If, at any stage, the existing company has issues in relation to trading whilst insolvent or is the subject of legal proceedings, the SMSF members' retirement savings can become entwined.
It is highly recommended that all accountants and advisers working with SMSF clients steer them towards establishing a brand new, special purpose company to act as corporate trustee.
The total cost of using our service to register a ne company, is just $525 (including $444 ASIC fee - our fee is only $81 Incl. GST). A company can be formed in less 20 minutes by clicking here, to act as a corporate trustee for an SMSF cannot rely on the Replaceable rules in the Corporations Act but will need its own constitution.
If you have an idle company (non-trading) then it is possible to change the constitution of this company and lodge form 484 with ASIC and convert it to a special purpose company to pay lower ASIC review fee, click here to learn how to change the constitution of your existing company for $125.
4. Change bank accounts and asset titles
Once the SMSF has its new trust deed and the trustee company is registered, with all individual trustee resignations and corporate trustee director consents in place, the tedious task of making changes to bank accounts and asset titles must be undertaken. The good news is that, once these are moved into the name of the corporate trustee, there are very few circumstances that will require further alterations to accounts or titles.
Most banks will want to see all documentation relating to the change, including the corporate trustee's certificate of registration and the written resignations of all individual trustees. They may also want to see the SMSF's new trust deed.
If an SMSF uses an online broker for share trading, it may have to close its old account and open a new one in the name of the trustee corporation. This may involve converting shares to issuer-sponsored while making the trustee changes. They can then be converted to broker-sponsored again. Usually the broker can do the transfer for a fee of $55 per script - or you can write to the share registry directly, if your super fund owns quite a few shares. Note that no capital gain tax applies when shares are transferred from Individual trustee to a corporate one.
If the SMSF holds real property, it will need to register changes to title with the relevant state or territory authority. A solicitor needs to be consulted for this step to ensure the fund can demonstrate that there hasn't been a change to beneficial owner - this will need to be established to avoid stamp duty. A solicitor should also be consulted to oversee changes to the parties on any lease agreements in place.
5. Dot 'I's and cross 'T's
It is critical to ensure SMSFs complete all steps carefully when changing trustees. For instance, since 2007 all individuals becoming trustees or directors of a corporate trustee must sign a declaration in the approved form (ATO Trustee Declaration NAT 71089) which confirms that they understand their duties (s. 104A SIS Act). This declaration must be retained for at least 10 years and be available for ATO inspection, if requested. This is covered in Clause 22 of our trust deed and the new declarations are provided when you convert your fund from individual to corporate trustee.
6. Changing from corporate to individual
Just as it is possible to change from individual trustees to a corporate structure, if there is a strong argument for doing so, it is also possible to remove a corporate trustee and replace it with individual trustees.
For example, this may be necessary if, when originally established, the SMSF did nominate to use an existing company as corporate trustee. The simplest way to remove any doubts about the ownership of assets may be to remove that corporate entity as trustee and revert to using individual SMSF members as trustees.
Again, we have an online system that can assist accountants, advisers and their SMSF clients to make this change.
7. Changing from one company to another
If the trustee of your super fund is a trading company or a trustee of another trust, you may wish to separate the duties of the trustee company. It is possible to change trustee from one company to another. Our system can also be used to replace the existing corporate trustee with another company for as little as $220, click here to learn more.
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