Can a Person be Disqualified from being a trustee of an SMSF?
The Australian Taxation Office (ATO) can disqualify an individual from being a SMSF trustee (reference to a trustee also includes a director of a corporate trustee).
The Australian Taxation Office (ATO) is the regulator of the SMSF sector. Their role is to enforce the superannuation laws and regulations (SISA) and their approach is two pronged. Essentially, they look at remediation to allow SMSF trustees to stay in the super environment or remove trustees from the super environment.
Today we are taking a look at removing trustees from the super environment.
The ATO maintain a register of disqualified SMSF trustees on their website. The Australian Securities & Investments Commission (ASIC) must be notified of the disqualification if the individual is a director of a SMSF corporate trustee.
Why does it matter if a SMSF trustee is disqualified?
The individual ceases to be a member and generally must resign as a SMSF trustee immediately with four major fixes being:
- rolling over the disqualified person’s super benefits to a large retail or industry fund
- paying out the member’s super benefits provided they meet a condition of release such as turning 65 and restructuring the trustee
- converting the SMSF to a small Apra fund (SAF) which is similar to a SMSF, but the trustee is an unrelated professional trustee, and the regulator is the Australian Prudential Regulation Authority (APRA)
- winding up the fund
Hint – the SMSF has 6 months to restructure itself
Hint – a disqualified person cannot appoint their legal personal representative who holds an enduring power of attorney (EPOA) to act in their place as a SMSF trustee.
Who is a disqualified person?
A disqualified person can be somebody who:
- is an undischarged bankrupt or insolvent under administration
- is convicted of an offence involving dishonesty including theft, fraud or illegal dealings
- is convicted of a civil penalty (a monetary penalty) for such things as breaching borrowing restrictions, in-house asset rules, the sole purpose test and investing in assets not at arm’s length
- has been disqualified by the ATO which can include:
- an individual who continues to deliberately and blatantly disregard superannuation law (SISA)
- a contravention of SISA which is unable to be rectified
- continual non-lodgement of SMSF annual returns
- SMSFs who have never lodged an annual return
- a person who is not a fit and proper person which can be indicated by a person who is sanctioned by their professional body or other regulatory body, has outstanding tax debts, general behaviour and public conduct showing lack of integrity and honesty, lack of skills or understanding of trustee duties and not responding to ATO queries in a reasonable manner given the circumstances
- continuing to fail ongoing SMSF audits
The ATO do not resort to removing a trustee lightly and look to the trustee’s willingness to rectify a breach, how many contraventions have occurred and the seriousness of the breach. The ATO prefer to keep the SMSF within the super system rather than removing it.
Can a disqualified SMSF trustee ever act as a trustee again?
Generally, they cannot act again as a SMSF trustee. However, it is possible under limited circumstances to waive the disqualification status and continue to act as a trustee.
Undischarged Bankrupt
It may be possible for a person who is an undischarged bankrupt to apply to the federal court to continue acting as a SMSF trustee. However, this may be costly and require a clean compliance history for the fund as well as considering the circumstances of the bankruptcy and the person’s character and conduct since the disqualification.
Dishonest Offence
A request can be made to waive the disqualified status by a person who was convicted of a dishonest offence. To be eligible the offence must not be a serious dishonest conduct. It must have been the sole purpose for the disqualification and the penalty imposed for the offence must have been less than 2 years jail or a fine of less than 120 penalty units which is $39,600.
Penalties
Criminal penalties may be applied to a person who continues to act as a SMSF trustee whilst disqualified which carries a penalty of two years imprisonment or a civil penalty being 60 units which is $19,800.
A SMSF trustee is obligated to advise the ATO immediately when they become a disqualified person or be subject to a civil penalty of 50 units which is $6,500.