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Self Managed Super Fund (SMSF) Article
Trust issues a test of mettle: trustee of your own super fund

By Tony Negline.

This article may be out of date.

1st September 2010

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Running your own super fund can be a very rewarding experience.  As trustee of your own super fund you get to decide how the fund invests its money and how the fund will pay out benefits.

But these rewards need to be balanced against the trustee responsibilities and obligations that come from running a fund.  It is true that a trustee can rely on their advisers to assist them in running the fund.

In June 2010 the Commissioner of Taxation, Michael D'Ascenzo, said in the ATO publication, Running a Self Managed Super Fund, “For trustees of SMSFs, managing your own fund and getting it right is very important. There are many rules and regulations in the various laws that govern super that are designed to protect your retirement income. As a trustee, you need to adhere to the rules and know that you are ultimately responsible for the running of the fund, even if you use tax, financial and super professionals to help to manage it.”

In reality, a trustee’s job is even bigger than D'Ascenzo says it is.

The key to understanding what a trustee has to do is to recognise that a super fund is a trust.  Trusts are very clever instruments which are defined in my dictionary as “an arrangement, developed and enforceable … for the holding and management of property by one party (the trustee) for the benefit of another (the beneficiary) or for some specific purposes … [in a super fund] the trustee has legal title to the property he/she is bound to safeguard or actively to exploit on behalf of another, or others, who have the equitable to beneficial ownership of the property.”

Trusts began to appear in England hundreds of years ago and since then the duties and powers of trustees have been moulded and adjusted by Court decisions and specific legislation.  This law has given trustees a range of duties.  Some of these duties can be varied, or even deleted, by the specific rules that are laid down by the creators of a trust.

Most super trusts will find these rules in their fund’s trust deed or in legislation and regulation.  The super legislation even says that a fund’s rules can be unwritten however there is an obvious danger of no documentation of trust rules.

When a super fund is created, a trust deed is often created as a matter of course.  Most SMSF trustees will receive a trust deed from the person who helps them set up their fund.  These deeds will need to be updated quite regularly.

One trustee duty, called the “Duty of Loyalty”, says that a trustee must be familiar with their trust’s deed and other governing rules and cannot depart from these rules unless a court has approved otherwise.  It also says that a trustee has to place the interests of beneficiaries ahead of other concerns which might appeal to the personal views of the trustees.

For the vast majority of SMSF trustees reading their trust deed remains an unfinished job.  Almost all other chores seem more appealing than reading and thinking about a thick clump of paper written in complicated legalese.

If you make an effort to read many deeds you will quickly see that there is no logical flow in the document.  Issues that should be grouped together are all over the place.  To solve one problem you have to flick between multiple pages.

This style of complex legal document is less common than it has been in the passed.  It is now often much easier to locate the information needed, many trust deed are easy to read, understandable and practically useful.

This better drafting has hopefully means that if trustees can understand their obligations they are much more likely to comply.  However as the ATO mentioned above the super laws are very large and complex and unfortunately some issues cannot be simplified.

Take for example the power of trustees to lend money.  By itself this power looks fine but it needs to be counter-balanced against court decisions and State Trustee Acts which may considerably restrict this power which are hardly ever covered in the trust deeds.

Some trust deeds contain examples to show the sorts of payments or purchases that are acceptable or how calculations work.  Some argue that this makes the trust deed more accessible to its users and would help a trustee to make confident and informed decisions.

However other lawyers counter this view and argue that if a trust deed is well written it doesn’t need examples.  There's always the danger that examples could conflict with the deed’s actual provisions.  These lawyers argue that if examples are going to be provided in a trust deed then they should be in a super fund’s Product Disclosure Statement.

Clearly the SMSF trust deed is a very serious issue and it is important that trustees make the effort to read this document and make sure they follow it.

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