ATO Interpretative Decision
ATO ID 2001/146 (Withdrawn)
Superannuation
Self managed superannuation fundsFOI status: may be released
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This ATO ID is a straight application of the law and does not contain an interpretative decision. This information is contained in the booklet publication Self managed superannuation funds - Role and responsibilities of trustees (NAT 11032)This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Whether the superannuation fund qualifies as a self managed superannuation fund for the purposes of section 17A of the Superannuation Industry (Supervision) Act 1993 (SIS Act) if one of the members is not a director of the corporate trustee.
Decision
The fund does not qualify as a self managed superannuation fund.
Facts
The superannuation fund has two members who are husband and wife. The fund has a corporate trustee of which the husband is the sole director. Due to their circumstances it is not possible for the wife to become a director of the company.
The husband and wife are currently in the process of a divorce. Under an order of the Family Court, the wife must remain a member of the fund. Her benefits must be retained in the fund until she is entitled to receive the benefits, at which time they are to be paid to the husband.
Reasons for Decision
Subsection 17A(1) (SIS Act) sets out the basic conditions that must be met by a fund with more than one member in order to be a self managed superannuation fund.
Subparagraph 17A(1)(d)(ii) (SIS Act) provides that if the trustee of the fund is a body corporate, each member of the fund must be a director of the body corporate. Therefore, if the wife remains a member of the fund but does not become a director of the corporate trustee, the fund does not qualify as a self managed superannuation fund. Accordingly, the superannuation fund must be regulated by the Australian Prudential Regulation Authority (APRA).
Date of decision: 30 March 2001
Legislative References:
Superannuation Industry (Supervision) Act 1993
section 17A
subsection 17A(1)
subparagraph 17A(1)(d)(ii)
Keywords
Superannuation
Superannuation funds
Self managed superannuation funds
SMSF trustee
Regulated superannuation funds
Retirement income entities
ISSN: 1445-2782
| Date: | Version: | |
| 30 March 2001 | Original statement | |
| You are here | 31 March 2006 | Archived |