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ATO Interpretative Decision

ATO ID 2001/591 (Withdrawn)

Superannuation

Retirement income entities: Trustee structure
FOI status: may be released
CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Will the superannuation fund meet the definition of a Self Managed Superannuation Fund (SMSF) under subsection 17A(2) of the Superannuation Industry (Supervision) Act 1993 (SISA) if the fund appoints the only member of the fund as a trustee of the fund, whilst retaining the current trustee as joint trustee?

Decision

Yes, the fund will meet the definition of a SMSF under subsection 17A(2) of the SISA once the only member of the fund has been appointed as a joint trustee of the fund.

Facts

The superannuation fund has the following features:

•
the fund has one member;
•
the member is not currently a trustee;
•
the member is not an employee of the trustee; and
•
the current trustee, an individual, is an Australian resident.

The current trustee of the fund does not receive any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund.

Reasons for Decision

Where the trustees are individuals, a superannuation fund with only one member can meet the general definition of a SMSF for the purposes of subsection 17A(2) of the SISA, if the fund meets the requirements specified in paragraphs 17A(2)(b) and (c) of the SISA.

Paragraph 17A(2)(b) states that if:

'the member is one of only two trustees, of whom one is the member and the other is a relative of the member; or the member is one of only two trustees, and the member is not an employee of the other trustee; and no trustee of the fund receives any remuneration from the fund or from any person for any duties or services performed by the trustee in relation to the fund.'

Where the superannuation fund appoints the only member of the fund, who is not an employee of the existing trustee, as a trustee of the fund and retains the other individual in the capacity of trustee, then the fund will meet the definition of a SMSF for the purposes of subsection 17A(2) of the SISA.

Date of decision:  20 January 2000

Legislative References:
Superannuation Industry (Supervision) Act 1993
   subsection 17A(2)
   paragraph 17A(2)(b)
   paragraph 17A(2)(c)

Related ATO Interpretative Decisions
ATO ID 2001/592

Keywords
Self managed superannuation funds
SMSF trustee
SMSF structure

Business Line:  Superannuation

Date of publication:  19 November 2001

ISSN: 1445-2782

history
  Date: Version:
  20 January 2000 Original statement
You are here 31 March 2006 Archived

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