Deed-update, Walker Wayland

May 2018 2 Minutes

Trust Deed – is yours up to date?

It is highly recommended by a number of lawyers that SMSF deeds older than five years should be reviewed.  Laws and regulations are continuously changing and deeds must be reviewed to ensure that they meet these changes.

Generally deeds that are dated before 2008 will need to be updated in order to bring them into line with numerous changes that occurred in the Simple Super reforms.

Please refer to the following which details all the legislative changes by year for older years please click here

2017

Superannuation Reform Legislation
Superannuation Reform Legislation Action required in respect to pension balances, asset segregation, capital gains and other matters prior to 30 June 2017. Post 1 July 2017, various restrictions apply, with penalties in the form of taxes for exceeding limits. SMSF trust deeds need to provide sufficient powers to enable compliance with new legislation.

Limited Recourse Borrowing deadline
Deadline of 31 January 2017 imposed by ATO to ensure loans to SMSF by a related party are brought under safe harbour provisions or are otherwise deemed to be on commercial terms.

2016

Superannuation Reform Legislation
Legislation to implement the first two tranches of the May 2016 Budget announcements received assent on 29 November 2016.

ATO Case Studies
ATO issues a range of case studies aimed at ensuring SMSF trustees and their advisers are aware of legislative and regulatory requirements in a range of SMSF compliance and investment scenarios.

Qualifying Recognised Overseas Pension Scheme (QROPS)
Requirement for transfers from UK funds. SMSF trust deed must meet new requirements of UK to enable transfer of benefits.

Collectables and Personal Use Assets
Exemption from storage and insurance rules for some assets ceased 1 July 2016.

Self Insurance by superannuation fund
Superannuation funds not able to self insure from 1 July 2016.

Limited Recourse Borrowing Safe Harbour guidelines
ATO issued guidelines in respect to when Limited Recourse Borrowing arrangements with related party lenders would effectively be considered to be at arm’s length.

Electing to treat payments not as an income stream
ATO issued a Private Binding Ruling which indicated election to treat payment as a lump sum was possible. SMSF trust deed needs to enable such election.