Once the decision is made to set up an SMSF and the SMSF is properly set up, the trustees (individual or corporate) must be aware that is not the end of the game. They still need to keep observing the stringent superannuation and tax rules throughout the SMSF's lifetime; otherwise tax benefits will be lost and the fund will be taxed at 45% - not to mention facing harsh penalties.
Without being exhaustive, this article will provide you with some key tips to avoid compliance pitfalls. Luis Vazquez, Thomson Reuters
If your SMSF lends to SMSF members (or their relatives), watch out for the 5% in-house asset limit. By law, an SMSF is restricted to having no more than 5% of its total assets (by market value) invested in in-house assets such as loans to related parties.
Another typical in-house asset scenario is where the SMSF buys a holiday apartment and the property is held under the name of an individual who is related to one of the SMSF's members. If the property is purchased by the SMSF itself, it may not be an in-house asset but if, for example, the trustee uses it as his or her holiday accommodation, the trustee is gaining a personal advantage that breaches the golden rule of preserving the fund only for the retirement of its members (the sole purpose test).
Trustees are not only compelled by law to prepare and implement an investment strategy, but to review regularly the strategy so it is up to date. In doing so, the trustees should consider whether to provide insurance for members (life and TPD cover) and make investment decisions based on the personal circumstances of the members. To avoid risk, diversification of investment into different asset classes (for example, shares, real property and fixed interest products) is desirable. All investment decisions should be fully documented.
Trustees are required to value their assets at "market value" when preparing their financial statements. They need to support their valuation on objective evidence and data. This means that trustees are no longer allowed to use historical value for asset valuations for reporting purposes.
SMSF trustees needs to appoint an approved SMSF auditor to audit the SMSF each year. The auditor must be registered with ASIC as an "approved SMSF auditor" and be appointed at least 45 days before the SMSF's annual return is due. The auditor must provide the audit report within 28 days of receiving all documents relevant to the preparation of the report.
The SMSF trustee needs to be aware that they cannot use artworks and the jewellery acquired by the SMSF for their own benefit. For instance, the trustee cannot display an SMSF artwork at their home or wear the jewellery. To do so, it will mean that the trustee is gaining a private benefit (current day enjoyment) that contravenes the SMSF genuine retirement purposes (sole purpose test). Other restrictions in this regard are worth mentioning:
You can read earlier ClearLaw articles on a range of SMSF topics.
 This information can be found in Checkpoint online products The Essential SMSF Guide and Australian Superannuation Handbook.
Paul is a Senior Associate in the Maddocks Commercial team with particular expertise in commercial agreements for the supply of goods and/or services, the Personal Property Securities Act 2009, the National Consumer Credit Protection Act 2009 and the National Credit Code and the Australian Consumer Law.
Paul's key areas of practice include:
Before joining Maddocks, Paul was employed for 13 years with the Victorian Department of Justice, principally as a Deputy Registrar in the Victorian Magistrate's Court, but also as a legislation, policy and project officer for the Department.
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