Turn your old company into a Special Purpose company –
to be the trustee of your Self-Managed Super Fund

Replace a Special Purpose Company Constitution so that your old Company can now be used as trustee of a Self-Managed Superannuation Fund.

You are about to replace a Company Constitution on our law firm’s website. You are building everything you need including:

* the replacement Constitution so that the company can now only be used as a Special Purpose Company to be the trustee of your Self-Managed Super Fund (and therefore get the lower annual ASIC fees)
* Member Minutes
* law firm letter confirming the above for your accountant’s and auditor’s due diligence file

Which is better as trustee of your SMSF: company vs human?

When I started practising in superannuation law in the 1980s the majority of Self-Managed Superannuation Funds had just dad as the trustee. (In those days you only needed one trustee. Now all the members must be trustees. Or, all the members must be directors of the company.) These days most superannuation lawyers. accountants and financial planners recommend a company as trustee of your SMSF. This is because:

1. A company lives forever. This is better succession planning. If a member dies you don’t need to transfer land. The land just says in the company name. You change the directors only. (While there is no stamp duty to transfer the property from one human trustee to another it is an added expense.)

2. You need a Deed to change an SMSF Trustee. You change trustees via a Deed of Variation of your SMSF. Conversely, changing a director is straightforward.  This is because merely changing a director of the company does not change the Trustee. 

3. If mum and dad are the two trustees there is a problem if one dies. An SMSF cannot have just one human as trustee. You always need at least two humans. Upon your spouse’s death, you, therefore, need to act quickly to appoint another human as trustee (or replace the human with a company). However, when your spouse dies the last thing you want to worry about is getting your SMSF compliant again. In contrast, a company is compliant with just one director.

4. Ease of audit.

You can’t mix SMSF assets with your assets. When you have a dedicated special purpose company that has no job other than to be your SMSF trustee this is easier to comply with. When Mum and Dad buy an asset for the SMSF they may forget to add ‘as trustee for the SMSF’. You are in breach. In contrast, if you buy an asset in the name of the company and forget to put ‘atf the SMSF’ it is not such a big issue. 

5. Contrary to popular belief, an SMSF can go insolvent. Any structure, even a conservative super fund, may not be able to pay its debts as they fall due. Also, the SMSF can be sued. If you have a company you have another layer of protection. (A director of a company does not automatically go down with the sinking trustee company.)

6. When an SMSF wants to borrow money the bank requires that both the SMSF and the trustee of the Custodian Trust both be companies (different companies, of course).

7. The ‘Central Management and control‘ rules are easier to comply with if you travel outside of Australia.

8. ATO penalties are less draconian with special purpose company. In contrast, human Trustees are jointly and severally liable.

9. A corporate trustee (special purpose company) pays lower ASIC fees each year. (Your special purpose company won’t have an ABN as it does not trade in its own right. Instead, the SMSF has the ABN. Your corporate trustee does not prepare accounts for itself, as it has no assets. Only SMSF accounts are prepared.) But you do have the added ASIC expense of setting up the company. Human trustees are free.

Let ASIC know

Build this document online to turn your company into a Special Purpose company. Your company then pays much lower yearly ASIC fees. But you need to let ASIC know. After you built and signed the documents lodge ASIC Form  484. Our covering letter tells you how to do this.

Every Member signs the Member Minutes

As we have drafted the update, each shareholder signs to give their consent.

Also, remember before you make the company the trustee of the Self-Managed Superannuation Fund (SMSF):

1. all the directors must be members of the SMSF

2. all the members of the SMSF must be directors of the company

Example 1: John, Jeff and Mary are the current directors of the company. But Jeff is not a member of the SMSF. Jeff must resign as a director of the company before the company can be the trustee of the SMSF.

Example 2: Paul and Fiona are the only directors of the company. But their daughter Ainsley, together with Paul and Fiona, is a member of the SMSF. Therefore, before the company can be made the trustee of the SMSF, Ainsely is made a director, as well.

The old company must have a balance sheet of zero

Your Special Purpose Company must not have any assets in it (other than the share capital for the shares). Its only job now is to be the trustee of the Self-Managed Superannuation Fund. It can’t do anything else.

Why do I need a Company Constitution?

The Constitution is a contract between the company, directors and shareholders (members). It is not mandatory to create a constitution. Your internal procedures are, instead, governed by government Replaceable Rules. However, no accountants, lawyers or financial advisers would advise your company to rely on these Replaceable Rules. This is because Replaceable Rules are not tailored to your specific needs. Relying on Replaceable Rules is dangerous.

Also, a Special Purpose Company can’t have Replaceable Rules. It must have a Constitution.

The 3 improvements to your current company constitution

The Constitution you are building also updates your company’s internal rules and procedures. It fully complies with changes to the Corporations Act. The 3 improvements are:

1. Technology convert company to a special purpose company

Technology has changed how a board can communicate with itself and shareholders. When you update your Company to a Special Purpose Company we also update the Constitution. Your Constitution is updated to reflect how changes in technology affect your business operations. Traditionally board decisions are mailed out in physical form to shareholders. However, email is a faster form of communication that is used by many businesses to correspond with shareholders. Your updated constitution takes into consideration how instantaneous communication affects your shareholders. Further, your constitution outlines how technology can be used in meetings.

2. Email voting

Shareholders can cast a vote regarding a meeting. Do it either online or through personalised voting forms. Members do not need to attend the meeting and can appoint a proxy. Your new Constitution improves meeting efficiency.

3. Single Directors

The Corporations Act now permits sole director companies. You now only have to have one director for your company. Before this time, you had to have a minimum of 2 directors.

Your new Constitution allows you to have a single director.

Three common faults in old Constitutions and Memo & Articles of Association

Australian companies created before 1 July 1998 had a ‘Memo & Articles of Association’. Like old Constitutions, your Memo & Articles of Association still operates but not well. Like old Constitutions, faults with the Memo & Articles of Association include:

1. Mandatory AGM each year

Requiring an Annual General Meeting (AGM). However, the law no longer requires an AGM for Pty Ltd companies. No one has AGMs anymore. But if you don’t, under your old rules, then your company is non-compliant. This is for both taxation and SMSF laws. Your new Constitution ensures that you don’t have to have AGMs.

2. Only do as permitted

Stating a ‘list of objects’. This is the purpose of the company. E.g. ‘sell fishing tackle and retail’. This was never a good idea for any company. It is especially not appropriate for a special purpose company. Your company is acting ‘ultra vires’ if it does not follow its old fashion ‘list of objects’. It is acting outside its powers. Again, your company is non-compliant. Legal Consolidated’s Constitution allows you to do comply with the SMSF rules – and more.

3. Perform out of date and illegal actions

Requiring illegal actions. Instead, we update the company constitution to allow these correct powers:

* exercise corporate powers
* issue and allot shares
* not avoid liability (a very strange requirement)
* transfer shares
* vote and proxies
* appoint directors and company secretary
* conduct general and director meetings
* sign bank documents, loans and mortgages (however this may be useful because banks often cannot enforce a loan made by a company that is still working under the old Constitution or M&A)
* allow alternative directors for ‘central management and control’ if the members live outside of Australia for an extended period

Build this document to transform your old company into a ‘Special Purpose Company’ so it can operate as trustee of your Self-Managed Superannuation Fund. You pay lower ASIC fees.

For more legal advice telephone us. We are a law firm. We can help you answer the questions to convert your old company into a Special Purpose Company.

Adjunct Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
Australia wide law firm Replace a Special Purpose Company Constitution Replace a Special Purpose Company Constitution
39 Stirling Highway, Nedlands, WA 6009
Mobile:       0477 796 959 Replace a Special Purpose Company Constitution Replace a Special Purpose Company Constitution
National:   1800 141 612 Replace a Special Purpose Company Constitution Replace a Special Purpose Company Constitution
Email:        brett@legalconsolidated.com