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Ask Colley - SMSFs and residency, you need to be present

Apr 22, 2021, 13:06 PM
By Graeme Colley
Executive Manager, SMSF Technical & Private Wealth

SuperConcepts Author - Graeme Colley
Any member of an SMSF departing Australia for an extended period or permanently may be faced with the fund failing the residency test.  To be a complying superannuation fund and enjoy concessional tax treatment, an SMSF must satisfy the ‘residency test’ at all times without exception.

An SMSF that fails the residency test will lose concessional tax treatment and taxed at 45%.  The higher tax rate will be levied on the investment income plus the market value of the assets less the amount of non-concessional contributions made to the fund. Potentially up to 45% of the value of the SMSF could be lost in tax – something no one wants to face.

Demonstrating residency 

A resident SMSF is required to meet the definition of an “Australian Superannuation Fund”  which is in the income tax legislation and satisfy three requirements at all times.  These are an establishment test, a control test and an active member test.

Test 1 - The establishment test
The establishment test is met if the fund was established in Australia or an asset of the fund was situated in Australia.  Nearly all SMSFs have a trust deed which was executed in Australia and will meet this test.

Test 2 - The central management and control test
The central management and control test relates to the strategic and high-level decision-making processes and activities that are undertaken by the trustee.  This includes formulating and reviewing the fund’s investment strategy and monitoring investments. 
The day-to-day administrative activities of the fund do not come within the central management and control test.  This would include the actual investment of fund assets, acceptance of contributions and payment of benefits.

Meeting the ‘central management and control’ test 
Temporary absence from Australia

The central management and control of a fund can be regarded as being ‘in Australia’ even where the trustees may be overseas for a relatively short time.  Temporary absence can be for a period of no more than 2 years where the trustees may be on vacation or for employment, as examples.  The current situation where a person is unable to return to Australia due to travel restrictions and the COVID-19 situation may still be considered a temporary absence although the trustee may have been overseas for a longer period.

Where all trustees emigrate to another country the fund is likely not to meet the Australian superannuation fund test from the time of departure.  In this situation, the trustees may need to resign and have new trustees, who have been granted enduring powers of attorney, appointed in their place.

Test 3 - The active member test
The active member test is the ‘sting in the tail’ of the definition of Australian superannuation fund as it applies where a member who is a non-resident for tax purposes may contribute or rollover to the fund.  SMSFs are more likely to fall foul of this rule than larger super funds.

Where contributions or rollovers have been made in respect of a fund member in a financial year they are treated as an ‘active member’.  To meet the active member test at least 50% of the fund balances of active members must relate to Australian residents for income tax purposes.

It is prudent that an SMSF should exercise caution when accepting contributions from members who are overseas and are not considered tax residents, unless the fund has tax-resident active members who meet the 50% rule.

Some fund members may choose to have contributions made to a larger publicly available fund when they are overseas and do not qualify as Australian tax residents. Once they return to Australia and regain their tax resident status, they may rollover the benefit to the SMSF.

Enduring powers of attorney (EPOA)

One possibility to retain the fund’s status as an Australian superannuation fund could be for the member to grant an Enduring Power of Attorney to someone they trust to make decisions about the SMSF.  Granting an EPOA to a person doesn’t give them the right to made decisions on behalf of the fund.  However, the superannuation legislation does permit them to formally appointed and take the place of the trustee or director of the corporate trustee.

When the central management and control is delegated to another person, it is important they undertake those responsibilities in their own right rather than under the influence of the grantor of the EPOA. If the replacement trustee passively accepts instructions from the grantor the ATO has indicated that the central management and control test would not be met.

Combination of EPOA and equal number of trustees
A common option for a fund with two trustees both going overseas is for one of the existing trustees to grant an EPOA to a person who will remain in Australia.  The grantor would then resign as trustee of the fund and be replaced by the Australian resident.
If the SMSF has a corporate trustee it is possible for the director to nominate an alternate trustee who is able to act as a director while the appointed director is overseas.  This can be a simpler option to the granting of an EPOA and another’s benefit of having a company as trustee of the SMSF.

Small APRA Fund 
An alternative to retaining the SMSF could be to have an approved trustee to take over the administration of the fund.  In this situation the SMSF would convert to a ‘Small APRA Fund’ and be regulated by APRA. This would overcome the central management and control issue, as the approved trustee would be resident in Australia.

Deal with residency before leaving Australia
It is important that residency issues are addressed well in advance of the trustees leaving Australia.  Making decisions about the trusteeship of the SMSF close to the time of departure or after may be too late as there are probably more important things that take priority.  Even worse, the issues may not be discovered until the trustees have returned to Australia.

The residency test is one that must be met “at all times” and once failed, cannot be rectified retrospectively, which may result in significant adverse tax consequences. Anyone planning to travel overseas, when it is possible, will need to consider whether the SMSF will continue to meet the residency test. If in doubt, professional advice is worthwhile prior to departure or it may be too late.
 

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