ATO Trustee Declaration: What SMSF Trustees Must Know and Sign
When you complete a new SMSF Setup one of the documents which must be completed is the ATO Trustee Declaration. This is part of a set of compliance documents prepared by your SMSF Accountant and included in the setup cost. It is a mandatory declaration which needs to be signed by the trustee/directors of the trustee company. It is not actually sent to the ATO but must be provided to the auditor as part of the permanent documents of the fund each time the fund is sent to audit.
What Is the ATO Trustee Declaration?
The ATO Trustee Declaration is a mandatory document that all directors of the corporate trustee must sign which confirms your understanding of your obligations in running the Self Managed Super Fund. This is provided to you by your SMSF Accountant as part of the SMSF Setup process and is legally required to be signed within 21 days of becoming a trustee or it is considered a compliance breach.
Finding form for DIY
We note there are a number of scams going around at the moment where websites are offering to sell you an ATO Trustee Declaration form for $50 and the like. Please do not waste your money! The form is downloadable for free from the ATO website, the link is included below:
That being said, if you are getting your SMSF professionally set up then we recommend letting your SMSF Accountant provide you with the form to sign, with the details completed for you, at the correct time.
Why the Trustee Declaration Exists
A lot of people might say it is pure red tape as the declaration is signed, not provided to the ATO directly and then just kept on file and sent to the auditor on an annual basis. The tax office’s view, on the other hand, is that this is the document proving that the trustees understand their compliance obligations and the personal risks that come with that decision. It is designed to mitigate against trustees later arguing that they were unaware of the rules in play and that they didn’t realise what their responsibilities were.
Who Must Complete the Trustee Declaration?
It is not enough for a single director of the corporate trustee to sign the form, it must be signed by every director of the corporate trustee company. For funds with individual trustees, which we advise against, then every individual trustee must sign a copy. If the trustee has moved from one fund to another (such as due to divorce) then they must sign a new trustee declaration for the new fund as the old one will not be sufficient.
When Must the Declaration Be Signed?
As mentioned previously every trustee/director of the corporate trustee must sign the form within 21 days of becoming a trustee or director. For new funds this is within 21 days of the setup being completed while for new members being added to the fund it is within 21 days of their appointment. It is important that the signatures and dates on the firm line up as missing this deadline is a compliance breach.
Power of Attorney & ATO Trustee Declaration
If you are acting on behalf of a member of an SMSF as part of holding an enduring power of attorney, then you are the one responsible for completing the declaration. This is because you are the director of the corporate trustee on behalf of the fund member. This can be for numerous reasons such as the member being under a legal disability such as being under 18 years of age or suffering from a metal impairment preventing them from managing their own affairs. These rules are the same as when you are the legal personal representative of a deceased member.
What are the Trustee Duties?
There are numerous trustee duties mentioned on the form, the key ones are to act honestly and in the best financial interest of the members. You also confirm that you are happy to keep the required records for running the fund including hiring the SMSF Accountant and auditor. It also leads you through the general rules including separation of your personal assets from those of the SMSF and the necessity of preparing an investment strategy. For more details of the duty’s checkout the form itself or the ATO website here:
Help with Missing ATO Trustee Declaration
If you need any help with a new SMSF Setup or fixing an issue such as a missing ATO Trustee Declaration for an existing self managed super fund reach out to one of our friendly team today. We work with clients to ensure that all the critical foundation documents are completed correctly and provided to the auditor to help you stay on top of your obligations.