Understanding the rules and obligations of an SMSF

Close-up of a hand writing in a dotted notebook, checking off items on a checklist with sticky notes nearby

While there are benefits in establishing an SMSF, running your own fund is complex and there are many things you have to consider, including:

your investment strategy – setting it and sticking to it
the administration of your fund – completing all the paperwork correctly and on time
compliance with super and other laws – and there’s a lot of them.

In fact, many people who choose the DIY super path use a specialist SMSF administrator to undertake the onerous compliance activities. This allows them to enjoy the benefits of investment control and flexibility without as much paperwork.

Your fund’s compliance with super laws is essential and you’re legally responsible for making sure your fund complies with all the rules – even if you pay for professional advice and/or administration. While the ATOs regulatory approach to SMSFs has been focused on education and information, it’s fast becoming more aggressive in its position on fund compliance.

What else?

The sole purpose test

Underpinning the SMSF regulatory regime is the sole purpose test – the sole purpose of your fund and all its investments must be to provide retirement benefits to fund members. In line with this, trustees are required, first and foremost, to have an investment strategy which they invest in accordance with.

While there are no restrictions on SMSFs investing in collectibles such as art, the ATO has highlighted that the sole purpose test means that members cannot enjoy a benefit from the investment prior to preservation age and meet a cashing restriction, when they can legitimately access their benefits if they have retired. This means that, unless strict conditions are met – like in the case of leasing the art to a member or related party in line with the in house asset and arms length rules – the art can’t be displayed in the trustee’s home or office. The inhouse asset rules mean that the particular investment can make up no more than 5% of the fund’s total assets and the arms length requirement means that it must be leased to the related party at commercial rates.

Things to consider

Separation of assets

A fund must also maintain its assets separately from those of a business in which one or more of the trustees is involved. For example, if assets are held in the name of one of the trustees rather than being clearly held as part of the fund, the fund risks the loss of the asset if the trustee is declared bankrupt or if their business is placed in receivership.

Restrictions on investments

Yes, even with an SMSF, there are still lots of rules and regulations around what you can and can’t invest in. These rules are designed to help ensure that the assets of an SMSF will be available to provide retirement income. SMSFs are restricted in the investments they can make.

Business real property

One of the concessions that SMSFs enjoy is their ability to invest up to 100% of the fund’s assets in business real property – though an issue for trustees to consider is whether this lack of investment diversification is a prudent investment strategy. It should also be remembered that it is very difficult for residential property to fit the conditions necessary for it to be considered ‘business real property’.

Fiduciary responsibilities

The meeting of fiduciary responsibilities by SMSFs is also important, particularly in relation to the fund holding its own bank account (rather than banking being done through personal accounts of one or more of the trustees) and not overdrawing that account.

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