Special Purpose SMSF Company – checked by our law firm
SMSF company (SMSF corporate trustee)
Special Purpose company complies with ASIC and Superannuation rules
SMSF company as corporate trustee for your Self-Managed Super Fund
Build an SMSF company that acts solely as the trustee of your Self-Managed Super Fund (SMSF). Fully SIS Legislation compliant with Special Purpose Company rules.
The constitution prohibits distributing income and property to shareholders. It is ‘safer’ for your SMSF to have a Special Purpose company. You also save on ASIC’s annual charge.
We check your special purpose company registration. This is before it proceeds to ASIC for incorporation as a Special Purpose Company. It is fully SIS Legislation compliant.
Which is better as trustee of your SMSF: company vs human
When I started practising in superannuation law in the 1980s, the majority of SMSFs had just ‘dad’ as the trustee. In those days you only needed one trustee. Now all the members are trustees. Or all the members are directors of the SMSF corporate trustee. These days most superannuation lawyers, accountants and financial planners recommend a company as trustee of your SMSF. This is because:
- An SMSF company lives forever. This is better succession planning. If a member dies, you don’t need to transfer land. The land just stays in the SMSF corporate trustee name. You update the directors only.
- If Mum and Dad at the SMSF trustees you can change them only via a Deed. (You change trustees via a Deed of Variation of your SMSF.) In contrast, changing a director is simpler and less expensive. It is free and easy to just change an SMSF company director. (Changing a director of the company does not change the trustee.)
- If ‘mum’ and ‘dad’ are the two individual trustees of the SMSF, there is a problem if one dies. An SMSF cannot have one human as a trustee. You need at least two humans. Act quickly when your spouse dies. Appoint another human as trustee or replace everyone with an SMSF company. The last thing you want to worry about is getting your SMSF compliant when a loved ones die. Legal Consolidated’s SMSF corporate trustees are compliant with just one director.
- Ease of SMSF audit
You can’t mix SMSF assets with your other assets. A dedicated SMSF special purpose company has no other job. When ‘mum’ and ‘dad’ buy an asset for the SMSF, they may forget to add ‘as trustee for the SMSF’. There is a breach. In contrast, if you buy an asset in the name of the SMSF special purpose company and forget to put ‘atf SMSF’, it is not a big issue.
- 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. You can sue an SMSF. If you have an SMSF company you have another layer of protection. A corporate trustee director does not automatically go down with the sinking trustee SMSF company.
- Banks require SMSF to have an SMSF company as trustee for borrowing money. (They also require the trustee of the Custodian Agreement to also be an SMSF company.)
- The ‘Central Management and control‘ rules are easier to comply with if you travel overseas.
- ATO penalties are less with an SMSF special purpose company. Human trustees are jointly and severally liable.
- An SMSF corporate trustee (special purpose company) pays lower ASIC fees each year.
- An SMSF special-purpose company won’t have an ABN. It does not trade in its own right. Instead, the SMSF has the ABN.
- An SMSF corporate trustee does not prepare accounts. It has no assets. Instead, the SMSF prepares accounts and pays tax.
- Land tax. Land tax rates are progressive. The more land in any given entity then the higher the rate of law tax.
- One advantage of humans as trustees of an SMSF is that humans are free. An SMSF corporate trustee costs money to get. And then you have annual ASIC fees. You have the added ASIC expense of setting up the SMSF company. Human trustees are free.
Why is an SMSF corporate constitution important?
The SMSF company constitution is vital. The Constitution is the rules as to what the SMSF corporate trust does:
- power to appoint and remove directors (who are also the SMSF members)
- decide on meetings and resolutions
- shareholders and directors power
If you opt to just have mum and dad as the SMSF trustees then these issues are dealt with under the governing rules of the SMSF Fund Deed. But, when you have an SMSF corporate trustee the constitution controls these issues.
When an SMSF company director dies
Anyone can own the shares in the SMSF corporate trustee. There are no SMSF rules on this. But the shareholders to the SMSF corporate trustee are generally mum and dad. The members of the SMSF usually hold the shares in the SMSF company. For:
Mutual Wills – when dad dies everything goes to mum. And once both mum and dad are dead everything to the children. If each other and then the children are to get the super at your death then that works. If not rethink your Estate Planning.
Single Will – you die. Whatever you own, such as shares in an SMSF company, go to your beneficiaries. If your beneficiaries are also getting your super then that works well. If not rethink your Estate Planning.
There is up to 32% tax on super. This is payable at the moment of your death.
Ensure the right people control the SMSF corporate trust shares. Especially upon your death. You Constitution is vital for a smooth transition.
Consider a Binding Death Benefit Nomination – that never expires.
When a director of an SMSF company dies
Where a director dies or loses capacity they cease as a director of the SMSF company. Who replaces them? The (remaining) shareholders decide that.
A Will controls your shares. But a Will has no control over the appointment of directors. (Only shareholders control who the next director is.)
Does an SMSF corporate trustee go out of date?
A company lives forever. But laws and fashion change. SMSF Company constitutes go out of date.
While you upgrade SMSF Deeds every 5 – 6 years. You generally only update an SMSF corporate trust every 12 years.
Also, update your SMSF corporate set of rules after a major change in legislation.
Upgrade SMSF Deed rules and change the Trustee – at the same time
Q: My old SMSF Deed is 6 years old. And needs a Deed upgrade to a Legal Consolidated SMSF Deed. Also, the SMSF trustees are currently individuals. Can I update the Trustee and the Deed both at the same time?
A: Yes you can update the SMSF Deed and Trustee by this Deed of Variation to update Deed and change Trustees. It changes human trustees to your new company. And it upgrades your SMSF rules. Both at the same time.
(Only need to remove the human SMSF trustees and put in your new company? Build this Deed of Variation to update Trustee. However, even if your SMSF is new you should take the opportunity to upgrade it to a Legal Consolidated SMSF Deed.)
Seven advantages of using a law firm website to build your SMSF company
The 7 advantages of using Legal Consolidated for SMSFs:
- 94% of special purpose company incorporations happen within 25 minutes of you building the document online
- our lawyers personally vet the details before submitting to ASIC
- when required, we contact ASIC to confirm your SMSF company name
- what if your SMSF company name is unavailable or challenged by ASIC? We contact you via telephone and help you find one that is available
- You receive a secure, personalised email containing:
- our covering letter on law firm letterhead
- Certificate of Incorporation of the SMSF special purpose company
- SMSF Company Constitution
- All minutes
- as always, our hints and training videos guide you. The law firm is available 24/7 via telephone for legal advice on how to build your document
- an SMSF company constitution is a deed. Only a law firm can legally prepare deeds.
For more legal advice telephone us. We are a law firm. We can help you answer the questions.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australia law firm
Mobile: 0477 796 959
National: 1800 141 612
Email: [email protected]
