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Know DIY super rules

The strategy: To play by the rules with my self-managed fund.

The strategy:

To play by the rules with my self-managed fund.

How hard is that?

While the responsibilities of trustees might appear onerous, the key thing to remember is that your fund is holding money in trust for your future and needs to be managed accordingly.

The Australian Securities and Investments Commission's MoneySmart website (money smart.gov.au) says there are four main areas of responsibility.

You must: act as a trustee for the fund, which includes legal duties use the money only to provide retirement benefits set and follow an investment strategy that ensures the fund is likely to meet your retirement needs and keep comprehensive records and arrange an annual audit by a qualified auditor.

Self-managed funds can have a maximum of four members. Each member must be a trustee, or, if you're using a company as trustee, each member must be a director of that company. Your fund's trust deed will set out how the fund is required to be managed, though there is also a number of government regulations that you must meet.

Such as?

Some of the more important rules include the sole purpose test, which requires you to run the fund solely for the purpose of providing retirement benefits a requirement that the fund's assets and finances be kept separate and strict regulation on dealings with related parties.

Superannuation funds are also prohibited from borrowing, except in very limited circumstances.

Many of the problems the Australian Tax Office (which regulates self-managed funds) comes across fall foul of one of these basic rules.

Tax Office statistics show 185 self-managed funds were made non-compliant in the year to July 2010, compared with 12 in 2006.

In a speech earlier this year the Tax Commissioner, Michael D'Ascenzo, said a significant number of these funds had breached the in-house assets rules that limit loans or leases to, or investments in, a related party to 5 per cent of the fund's total assets.

He said many of these breaches had involved trustees using their retirement benefits to support their related businesses.

Does that mean I can't transact with my super fund at all, apart from making contributions and eventually getting a benefit?

Not entirely. The rules prohibit you from using super fund money for personal or business purposes. So things such as loans to members are out.

However, there are some exceptions. As mentioned in the cover story, a fund is allowed to buy listed securities or business real property from members at market value and to lease the business property to a related business.

These transactions are not covered by the in-house assets test. You can also acquire assets that fall within the 5 per cent in-house assets limit.

It is also possible to share ownership of an asset with your super fund through a structure such as an ungeared trust, provided it is structured correctly. However, such transactions all need to be made on an arm's-length basis.

How does the sole purpose test work?

It requires you to manage the fund for the sole purpose of providing retirement benefits to members, or to their dependants if a member dies before retirement. So if you, or any other related party, receive a benefit - even an indirect one - you risk being in breach of this test.

The sole purpose test is most commonly thought of in regard to so-called "exotic investments" such as art and collectables.

The proposed new rules for these assets specifically ban members from receiving any benefits from their ownership. But the net can also be cast more widely.

Back when Coles Myer introduced a special class of shares entitled to its popular shareholder discount card, these were deemed to be in breach of the sole purpose test as the shares had a lower dividend than the ordinary shares.

What about the investment strategy?

You're legally required to have one and to manage the fund in accordance with it. The Tax Office says the strategy should set out your investment objectives and detail the methods you'll adopt to achieve them.

Considerations to take into account are risk, diversification, the ability of your fund to pay benefits and other costs, and the needs of members.


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