By Natalie Gosper, a Solicitor in our Commercial Law team
Most trustees of SMSFs are aware that record keeping is important to ensure their Fund remains compliant and eligible for tax concessions, but few trustees understand the actual ramifications of what happens when you don’t keep the right records.
The task of record keeping is often left to the Fund’s accountant or adviser, which should be a wise choice however there are records the trustees must retain which are often overlooked.
The ATO website contains a great deal of helpful information for SMSF trustees including the records a fund must keep. See https://www.ato.gov.au/super/self-managed-super-funds/administering-and-reporting/record-keeping-requirements/ For example, copies of annual returns must be retained for at least 5 years but records of changes of trustees and minutes recording investment decisions must be kept for at least 10 years.
Where it can go wrong – a real life example
Maintaining the chain of deeds
A and B set up the AB Super Fund in 1987. They are the trustees of the Fund in their own capacity.
In 1990 and again in 1998 they updated the provisions of their SMSF trust deed. Their accountant arranges this for them.
In 2002 A and B move to another city. They collect their records from their accountant and engage a local accountant to look after their Fund.
That same year, A and B decide to change the trustee of the Fund to a corporate trustee – AB Investments Pty Ltd. Their accountant arranges this, but unfortunately A and B fail to hand over the most current trust deed, being the 1998 deed. The change of trustee is effected based on the provisions of the 1990 deed.
In 2013 the trust deed is updated yet again because the Fund wants to enter into a limited recourse borrowing arrangement to purchase a property. A and B find the 1998 deed at home and give it to the accountant. The 2013 trust deed update is based on the variation provisions contained in the 1998 trust deed and is signed by AB Investments Pty Ltd.
A and B approach their financier in relation to the loan. The financier reviews the chain of deeds and discovers the anomalies with the deeds.
This raises the following questions:
- A and B purport that AB Investments Pty Ltd is the current trustee of the Fund and the current governing provisions of the Fund are contained in the 2013 trust deed.
- The bank questions whether AB Investments Pty Ltd is actually the current trustee of the Fund since it was appointed pursuant to the 1990 deed instead of the 1998 deed.
- If AB Investments Pty Ltd is not the current trustee, then the 2013 trust deed is also invalid as it was executed by the company.
- If this is the case, the current governing provisions of the Fund are actually the 1998 deed which does not contain the appropriate provisions for the trustees to enter into a limited recourse borrowing arrangement.
The issues are complicated but are eventually the Fund’s affairs are put back in order. In doing so the Fund incurred legal and other costs and the property the Fund was going to buy has been sold to someone else.
If you require assistance with your SMSF record keeping, contact the Commercial Law team at Matthews Folbigg Lawyers. Don’t delay!