18/08/2008

The ATO recently released a form which all new trustees (or new directors of companies which act as trustees) of self managed superannuation funds must now sign.

The requirement to sign the form applies if the trustee (or director) was appointed on or after 1 July 2007.  It doesn’t matter whether the self managed superannuation fund was established before or after 1 July 2007 – so long as the trustee (or director) was appointed on or after 1 July 2007.

The form must be signed within 21 days of the appointment being made and retained as part of the fund’s documentation for as long as the document is relevant (ie for the duration of the individual’s appointment) or at least for 10 years.  

The signed form is not required to be provided to the ATO unless specifically requested.  The signed form will be one of the documents the auditor will have to sight as part of each year’s audit.

Essentially the SMSF Trustee declaration is a dot point summary of:
•    the sole purpose test
•    trustee duties under the SIS Act
•    investment restrictions imposed by the SIS Act
•    key administrative and record keeping obligations under the SIS Act.

There is a penalty for breaching the SMSF Trustee Declaration  i.e. the obligations relating to the SMSF Trustee Declaration are strict liability offences.  An offence will be committed in the following circumstances:
•    a recently appointed trustee (or director) fails to sign the declaration within 21 days of their appointment
•    the signed declaration is not retained for so long as the declaration is relevant or for less than 10 years
•    the signed declaration is not made available for inspection by the ATO when requested.

The maximum penalty for an offence is 50 penalty units (ie $5,500 or $110 per penalty unit).

A copy of the declaration is available from the SuperCentral Website or by using the following link – SMSF_Trustee_Declaration_ATO_form.pdf