SMSF Trustee Company

Unfortunately, no.  ACNC registration requirements can be somewhat complex. While our special purpose not-for-profit constitutions are suitable for registration with the ASIC, Patricia Holdings does not participate in the registration of your charity beyond registering it with ASIC.

While both company types have been developed for use by not-for-profit entities, there are some distinct differences.

The NFP Pty Ltd Company is a type of private company mainly used to act as the trustee of either a public or private ancillary fund. Not-for-Profit Pty Ltd is a proprietary company limited by shares. Its funding generally comes from shareholders in the form of share capital and less so from the public. As it is registered as an ASIC special purpose company, its assets cannot be distributed to its shareholders at any time.

Public companies limited by guarantee have been developed for use as a not-for-profit organisation usually seeking charity status. This product establishes a public company that is limited by guarantee meaning it does not have share capital. Instead, its funding mainly comes from the public. The liability of members is limited by the members guarantee which is the nominal amount the member agrees to pay in the event that the company is wound up. CLGs are not permitted to make distributions of profits or assets to its members. CLGs can be considered as a Special Purpose Public Company Limited by Guarantee if it meets some ASIC’s requirements.

Patricia Holdings provides both of these company types with suitable constitutions for each structure. Contact our friendly team today.

There are various types of structures that would also be suitable for not-for-profit purposes. These include public companies limited by guarantee (or CLG), incorporated associations, or even trusts. Patricia Holdings can help you set up an CLG or a charitable trust at the click of a button. Incorporated associations are set up through the relevant state or territory so it is recommended you do this yourself. For more information about LBG’s, click here. For further info about our charitable trust deeds click here.

Of course you can. In order to meet ASIC’s eligibility requirements of a special purpose not-for-profit company and take advantage of the reduced annual review fee, you will need to make sure that the constitution:

- Requires the company to pursue charitable purposes only and to apply its income in promoting those purposes;

- Prohibits the company making distributions to its members and paying fees to its directors; and

- Requires its directors to approve all other payments the company makes to them.

- Specifies that on winding-up, the company must distribute its assets to an entity with similar objectives, and not to the company’s members.

No they can’t. Per ASIC’s special purpose eligibility requirements, directors cannot be paid fees or remuneration for their services as directors. There is an additional requirement that any expenses incurred in relation to their duties as directors must be approved before any payment is made back to them. The Patricia Holdings constitution has been drafted in a way that satisfies ASIC’s requirements and allows the not-for-profit company to take advantage of the reduced annual review fees each year.

The capital and profits of a not-for-profit company cannot be distributed to the members – this is what makes the company NFP. Capital and income must be applied solely towards the company’s charitable purpose. This should be written in the company’s constitution.

On winding-up, the assets that are left over after the not-for-profit company has paid its debts must be distributed to another entity with similar objectives to the NFP such as (but not limited to) a charity. Assets cannot be distributed to shareholders at any point.

The ACNC describes ancillary funds as special funds that provide a link between people who want to give (known as ‘donors’) and organisations that receive tax deductible donations (known as ‘deductible gift recipients’ or DGRs). Ancillary funds are set up for the purpose of providing money, property or benefits to DGRs and are established and maintained under a will or instrument of trust. They are endorsed by the ATO as tax exempt. There are two types of ancillary funds:

1. Public – also known as PuAFs, seek donations from the public.
2. Private – also known as PAFs, use donations from business, families and individuals.

The Patricia Holdings NFP Pty Ltd constitution is suitable to use for trustee companies of ancillary funds both public and private.

While a Not-For-Profit Pty Ltd company is set up to pursue charitable purposes, this does not mean it is a charity. Charities must be registered with the Australian Charities and Not-for-profits Commission (ACNC) and endorsed by the Australian Taxation Office (ATO) for certain tax concessions. There are further requirements imposed by the ACNC and ATO with regards to the entity’s constitution. If looking to set up a charity, you would need to seek independent legal advice about these requirements and making changes to the company documents provided to you by Patricia Holdings. Please consider setting up a Company Limited by Guarantee, to register with the ACNC. Please see more details here. 

A company can issue different classes of shares with the rights and restrictions attached to them distinguishing it from other classes. While a NFP company is unable to make distributions to its members (including on winding up), rights relating to receiving notice of, or attending meetings, as well as voting, and any restrictions on the holders of a particular share class, are still relevant.

Share capital generally allows a company to distribute profits and dividends to shareholders in proportion to the shares they hold meaning that companies registered with shares are considered a “for-profit” structure.

To be considered a special purpose company and be eligible for the reduced ASIC annual review fees, the constitution of a not-for-profit company must be drafted in a way that excludes the company from making distributions to its members or paying its directors and ensures that the company is used to pursue charitable purposes only. This is what makes it a “not-for-profit”.

Yes, the Patricia Holdings Not-for-profit Pty Ltd Company is considered a special purpose company according to ASIC and is eligible for the reduced annual review fee.

The legal requirements for a special purpose not-for-profit company are set out in section 3(d) of the Corporations (Review Fees) Regulations 2003 under the Corporations Act 2001 (Cth). The regulations state that the constitution:

- Requires the company to pursue charitable purposes only and to apply its income in promoting those purposes;

- Prohibits the company making distributions to its members and paying fees to its directors; and

- Requires its directors to approve all other payments the company makes to them.

The Patricia Holdings NFP Pty Ltd constitution complies with these regulations.

Yes, the Patricia Holdings Home Unit Company is considered a special purpose company according to ASIC and is eligible for the reduced annual review fee.

The legal requirements for a special purpose not-for-profit company are set out in section 3(e) of the Corporations (Review Fees) Regulations 2003 under the Corporations Act 2001 (Cth). The regulations state that:

• the company is the proprietor of land on which a building divided into separate residential areas and areas for common use is erected;
• the members of the company are entitled, because of the shares they hold in the company, to the exclusive occupation of 1 or more of the residential areas and to use of the common areas; and
• the company only operates to facilitate and enforce the rights of company members in relation to exclusive occupation of the residential areas and to maintain the common areas.

The Patricia Holdings Home Unit Company complies with these regulations.

A company can issue different classes of shares with the rights and restrictions attached to them relating to distributions, voting and receiving notice of meetings, distinguishing it from other classes. Shares in a home unit company represent the flats or units within the block and are generally split into different “share groups”. The unit entitlements are expressed as a percentage and the share groups denote a particular lot or unit to which the shareholder(s) are entitled to. It is for this reason that we believe issuing different classes of shares would be futile. As such, the Patricia Holdings Home Unit Company Constitution only allows for ordinary class shares to be issued at the time of registration.

A home unit company is a type of proprietary limited company that involves a group of people (directors or members) who own or live in a block of flats or units. The company exists as a body corporate to administer the property. The company will qualify for reduced ASIC annual review fees if:

• the company is the proprietor of land on which a building divided into separate residential areas and areas for common use is erected;
• the members of the company are entitled, because of the shares they hold in the company, to the exclusive occupation of 1 or more of the residential areas and to use of the common areas; and
• the company only operates to facilitate and enforce the rights of company members in relation to exclusive occupation of the residential areas and to maintain the common areas.

Per the Patricia Holdings Home Unit Company Constitution, if the company is wound up and the property of the company is more than sufficient to pay all debts as well as the costs, charges and expenses of the winding up, the excess must be divided among the members in proportion to the unit entitlement held by them. The liquidator may divide among the members the whole or any part of the company, and, determine how the division is to be carried out.

The Patricia Holdings Home Unit Company does not allow for directors to be paid any fees or remuneration for their services as director. Directors of home unit companies are lot owners and not professionals employed for the purposes of managing the company title building.  This follows the situation with strata title committee members.

Of course you can. In order to meet ASIC’s eligibility requirements of special purpose home unit companies and take advantage of the reduced annual review fee, you will need to make sure that:

• the company is the proprietor of land on which a building divided into separate residential areas and areas for common use is erected;
• the members of the company are entitled, because of the shares they hold in the company, to the exclusive occupation of 1 or more of the residential areas and to use of the common areas; and
• the company only operates to facilitate and enforce the rights of company members in relation to exclusive occupation of the residential areas and to maintain the common areas.

Should you choose not to use the Patricia Holdings Home Unit Company Constitution, due to the complexity of this particular company type, we suggest having the constitution drafted by a property law specialist.

Company title schemes were introduced in NSW around 1920 with strata schemes introduced in the 1960s. Generally speaking, the main difference between company title and strata title schemes are that unlike with strata title, in company title the company title owner does not have the title to any real estate but has, through ownership of shares in the home unit company, the right to occupy an apartment or unit in the building owned by the home unit company. A strata title owner on the other hand will obtain a legal interest in the real estate defined by the registered strata plan.

Company title is less common than strata title, as most buildings have chosen to change to strata title but in some areas, company title remains the norm. The shares in the company should correspond to the value of the units based on the size and location of the units in the building. Unlike with strata title, the buyer of a company title home unit does not receive a certificate of title to the property but instead they receive a share certificate.

In company title properties, the Board of Directors is also required to approve the share transfer to a prospective buyer whereas this same approval process is not a requirement of strata title properties.

Company Title Pros

• They are typically more affordable than strata title properties
• Money is saved on strata costs like insurance and administration
• With less complicated approval processes and by-laws, resolving basic disputes or addressing problems may be simpler
• The residents are typically owner-occupiers or permanent residents that have been approved by the board, which may lead to more harmonious living and less short-term occupancy
• There are very specific agreements associated with company title so you know exactly what you’re getting and what can and can’t be done

Company Title Cons

• Prospective buyers need to be approved by the company’s board which will have rules and restrictions on potential owners
• Tenants will also need to be approved if there are no restrictions on whether you can rent your place out to a tenant
• Lenders are more reluctant to approve home loans for company title compared with strata title. There are stricter LMI levels, and the lender may want to see the agreement before approving a mortgage
• Because the company directors approve the transfer of shares (the new buyer) the pool of purchasers and how quickly the unit may sell might be restricted
• Rents might be a little lower than what could be achieved for a strata property
• The apartment’s value may not increase at the same pace as strata title units

There are a few steps to take to convert from company title to strata title such as seeking local council approval, but to put it simply, yes you may convert to strata title in the future. This process is started by way of special resolution of the share group holders.

The two are related but no, they are not the same thing.

A home unit company involves a group of people (directors or members) who own or live in a block of flats or units. The company exists as a body corporate to administer the property. Company title is a scheme of land ownership through which a company (the home unit company) owns the title to the land. Shareholders in the home unit company are entitled to exclusive occupancy of their unit. The owner does not have a title deed but instead they have a Share Certificate representing their ownership of the unit. The building and land would be considered a company title property with the home unit company administering the property.

Per the Patricia Holdings Home Unit Company Constitution, to qualify for appointment, a director is required to be a member of the company either solely or jointly in one or more share groups, or, be the nominee of such member.

The financial reporting obligations of an unlisted public company depend on whether it is a company that is:

• Not a disclosing entity or a company limited by guarantee – these public companies must prepare annual financial reports in accordance with chapter 2M of the Corporations Act 2001 (Cth). These reports must be audited, lodged with ASIC within four months of the financial year end, and, sent to members by the report due date or 21 days before the AGM (whichever is sooner).
• Not a disclosing entity – these public companies are not required to comply with the same reporting requirements as the above if all conditions of ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 are met and the company is not a borrowing corporation, the guarantor of such a borrower, or, a financial services licensee. These companies must be a wholly owned entity and have undertaken a deed of cross guarantee with every company in the closed group.
• Limited by guarantee – public companies limited by guarantee are required to prepare annual financial repost and a director’s report with specific disclosure as set out in section 300B of the Corporations Act 2001 (Cth). These reports must be prepared in accordance with Chapter 2M of the Corps Act and must be audited or reviewed.

Once a public company lists on the stock exchange, their reporting requirements may change.

A public company is the correct company structure for listing on the stock exchange (ASX) however companies looking to list on the stock exchange in Australia must meet significant legal and regulatory requirements to satisfy the "listing rules". There are also listing requirements that must be met with regards to shareholders, company size, working capital and reporting. Preparing a company for listing should be handled by solicitors or other professionals.

Public companies can be registered limited by shares or limited by guarantee.

Shares are a unit of ownership providing the shareholder with equity in the company. Shares in a public company can be sold to the general public. Each share in a class of shares in a public company must have the same rights to dividends as each other. Public companies limited by shares are generally used by businesses seeking fundraising from the general public or by companies with over 50 shareholders (as they are not allowed to be private companies per ASIC’s rules).

Public companies limited by guarantee (or CLGs) do not have a share capital or shareholders; instead, the members act as guarantors. The members agree to pay a nominal amount in the event of the company's winding up, known as the members' guarantee. CLGs are used by organisations such as recreational clubs, cultural communities, and charitable organisations in Australia.

Patricia Holdings can help you set up your unlisted public company with shares, or limited by guarantee.

The ASX listing rules can be easily accessed by the public on the Australian Securities Exchange website.

www.asx.com.au
https://www.asx.com.au/regulation/rules/asx-listing-rules.htm

To list a company with Australian Stock Exchange (ASX), the company must satisfy the minimum admission criteria concerning structure, size, free float and number of shareholders. These requirements ensure the quality of the market that ASX operates. The company must:

• have a minimum of 300 non-affiliated investors at $2000 each
• have a free float of 20%
• be of a particular size worked out using the profit test or the asset test.
• If seeking admission under the asset test, the company must also have working capital of $1.5 million

The company does not need to have the required shareholder spread or free float before the listing application is made. The approval for listing is granted subject to the company meeting the shareholder spread requirement through the offer of shares associated with the listing application.

Outside of ASIC’s reporting requirements, public companies listed on the stock exchange must also follow the below reporting criteria:

• Financial reporting is required on a half-yearly and annual basis in Australia
• Certain companies that are listed without a track record of revenue or profit are required to also file quarterly cash flow statements.
• Mining and oil and gas exploration companies are required to file quarterly reports on cash flow, and activities including changes in tenement interests, issued and quoted securities.

In Australia, there are two main categories of companies – private (proprietary) (Pty Ltd) companies and public (Ltd) companies with private companies being the most common. The key difference between proprietary companies and public companies are the following:

• In terms of ownership structure, private companies are owned by a small group of individuals or a single entity, and their shares are not publicly traded. Ownership is typically closely held, allowing for greater control and decision-making within a small group. This structure often leads to streamlined operations and a cohesive management approach. Unlisted public companies, while privately owned like private companies, differ in that they may have a larger number of shareholders. Despite not being listed on stock exchanges, these companies can attract investments from a broader pool, blending the characteristics of private ownership with a wider shareholder base. However, their shares remain unavailable for public trading, distinguishing them from both private companies and listed public companies.
• In terms of capital acquisition, private companies usually rely on personal funds, loans, or investments from a select group, such as angel investors or venture capitalists. This process is more selective and slower but helps maintain control and privacy. However, private companies have limited ability to raise large amounts of capital compared to public companies due to the lack of publicly traded shares. Unlisted public companies have more diverse options for raising capital. While they are still privately owned, they can attract investments from a larger pool of private investors, without the regulatory requirements of being publicly listed. Although they lack the vast capital access of publicly listed companies, unlisted public companies can still secure substantial funding through private placements.
• Regarding exit strategies, private companies typically achieve liquidity through business sales, mergers, or transfers within a family. Liquidity events are rare and often require careful planning. In contrast, shareholders in unlisted public companies have more options for liquidity, such as private share sales or forming strategic partnerships. Although these companies are not publicly listed, their larger shareholder base offers more opportunities for liquidity and flexibility in realizing investment value.

While both public and proprietary companies are regulated by ASIC, the level of disclosure a company has to make to ASIC varies depending on their company type. Most small to medium proprietary companies will not be required to lodge financial reports with ASIC but all public companies (unless otherwise exempt) must disclose financial statements, directors’ reports and audited accounts on an annual basis. They must also hold an Annual General Meeting.

Most small and medium businesses will choose to register as a proprietary company limited by shares; however, they are restricted to a maximum of 50 shareholders, so sometimes a small unlisted public company is a better fit.

Generally speaking you should be able to convert your unlisted public company to a proprietary company down the road. During the life of your company, you may decide that the company type you registered with no longer suits the activities or nature of your business. A special resolution of the members must be passed agreeing to the conversion and a form 205 and 206 lodged with ASIC. Patricia Holdings can help you with these lodgements – contact us today.

Section 162 of the Corporations Act states that only some kinds of company conversions are allowable.  These are outlined below:

In Australia, there are four different types of public companies. These include:

• Public companies limited by shares
  The same as a proprietary company limited by shares, a public company that is limited by shares is a company where the liability of its members is limited to the nominal amount of their shares. Where a proprietary company has a maximum of 50 shareholders though, this public company type has no limit.
• Public companies limited by guarantee
  The difference with a company that is limited by guarantee is that members can guarantee a fixed amount to be undertaken to contribute to the company when it is wound up. These types of companies have no share capital and are generally used for NFPs and Community organisations.
• Unlimited public companies with a share capital
  An unlimited public company with a share capital is a company where its members liability is not limited.
• No liability companies (mining and resource companies)
  In Australia, a no liability public company is a type of public company that has share capital. They can only be used where the principal activity of the company is that of mining or resource exploration.

Patricia Holdings offers two types of public companies – unlisted public companies limited by shares and Public Company Limited by Guarantee (CLG).

A Company Limited by Guarantee is a legal structure commonly used by:

• charitable organisations that aim to be exempt from paying income tax.
• not-for-profit organisations that is not a charity but which can self-assess as exempt from paying income tax. Examples of relevant organisations include: a community service organisation, a sporting organisation, an educational institution, a religious organisation and recreational or sporting clubs, etc

CLG is a type of public company established "on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up" - Corporations Act 2001 (Cth). This contributed amount is outlined in the company’s constitution and is generally nominal. Due to limited by guarantee companies being public companies that are registered in accordance with the Corporations Act 2001 (Cth), they must comply with the sections of the Act that apply to them.

A Limited by Guarantee Company must have at least three (3) directors (of which two (2) must reside in Australia), one (1) secretary (must reside in Australia) and one (1) member (can reside in Australia or overseas). There is no upper limit on the number of directors, secretaries or members but it is advisable to limit the number of directors and secretaries to 10 and the number of members to 50. It must also have a members guarantee amount and should have its objectives listed in its constitution.

You will need to have the Constitution ready for ASIC to review before the company registration. Because it is a public company, ASIC is required to review the Company’s constitution. Patricia Holdings provide two types of Constitutions for a Public Company Limited by Guarantee, one is for Not-for-profit Public Company Limited by Guarantee and the directors can still be paid; the other one is for Special Purpose Not-for-profit Public Company Limited by Guarantee where the directors cannot be paid. For both types of Constitution, you will need to provide us with the objectives of the company and the guaranteed amount so we can tailor them into the constitution for your company.

You can also provide your own constitution via email or our online order form and we will lodge it with ASIC to register your Public Company Limited by Guarantee.

No, the company does not have a share capital and its funding comes from the public. CLGs have members whose liability is limited to an amount that will be paid on the winding up of the company if the company’s assets are less than its liabilities. This is known as the Members Guarantee. There are no shares allotted thus no share certificates issued.

A Not-for-profit Public Company Limited by Guarantee is not permitted to distribute profits or assets to its members. The company must comply with all obligations of public companies under the Corporations Act 2001 (Cth).

The constitutions that we provide when registering a Public Company Limited By Guarantee (CLG) are suitable if you wish to establish a not-for-profit organisation (NFP), including if you are thinking of registering your NFP organisation as a charity with the Australian Charities and Not-for-profits Commission (ACNC).

Please note however that using any of our constitutions does not guarantee that your application for registration as a charity will be successful because there are a number of factors that the ACNC must consider beyond just your constitution. For more information on the requirements for registration as a charity you can visit the ACNC website at www.acnc.gov.au.

A public company limited by guarantee that is registered as a charity with the ACNC does not have to pay any annual renewal fees to the Australian Securities and Investments Commission (ASIC).

If your CLG is not registered as a charity then it will need to pay an annual renewal fee. The amount of this fee will depend on whether or not it is a ‘special purpose’ company (see below question for more detail).

If you will be registering your company with the ACNC (and wish to be eligible for reduced annual ASIC fees) or if you would like to operate your CLG without the word ‘Limited’ or ‘Ltd’ in its name, you will have to meet the requirements set down for what is called a ‘special purpose company’. In the context of a charity, this means that your CLG will need to be established for charitable purposes and must contain wording in its constitution that prevents Directors from being paid in their capacity as Directors.

If you choose not to register as a charity, but still meet the ‘special purpose’ company requirements, then your annual renewal fee with ASIC will be reduced by around $61.

So, if you do want to operate without the word ‘Limited’ or ‘Ltd’, or if you want to prevent payments to Directors for whatever reason, then our constitution entitled "Limited by Guarantee – special purpose not-for-profit" is the one for you.
If you do want to pay Directors, then the constitution entitled "Company Limited by Guarantee- standard constitution" is for you.

Please note - if you want to operate without the word ‘Limited’ or ‘Ltd’ you must first incorporate your company, then register as a charity with the ACNC and then later apply to ASIC for removal

Warning: While paying Directors in their capacity as Directors does not in and of itself prevent you from being registered as a charity, or even from receiving deductible gift recipient endorsement, it can result in other consequences. For example, requiring ministerial approval to obtain a charitable fundraising authority in NSW, loss of protection under the Civil Liability Act (or equivalent) and being treated differently for the purposes of work health and safety and superannuation laws. We recommend you seek professional advice if you are planning to pay directors in their capacity as directors.

To be eligible to apply for DGR endorsement you must, except in some very limited circumstances, first be registered as a charity with the ACNC.

Please note: Not all charities are eligible for DGR endorsement – i.e. you are not automatically granted DGR endorsement if you are registered as a charity.

To become endorsed as a DGR you must also meet the specific requirements set out for the particular category of DGR that you are seeking. Note there are approximately 50 different categories of DGR.

While each of our Company Limited by Guarantee’s constitutions have been prepared with the fundamental and common requirements for DGR endorsement, we strongly recommend that you seek professional advice about the exact requirements for the DGR category that best suits your purposes and activities before lodging a DGR application.

Unfortunately, no.  ACNC registration requirements can be somewhat complex. While our special purpose not-for-profit constitutions are suitable for registration with the ACNC, Patricia Holdings does not participate in the registration of your charity beyond registering it with ASIC.

A charity is an entity:

• that is not-for-profit;
• all of the purposes of which are charitable purposes for the 'public benefit', or incidental or ancillary to, and in furtherance or in aid of, such purposes;
• which does not have any 'disqualifying purposes'; and
• which is not an individual, a political party or a government entity.

The entity can be (but doesn't have to be) a company limited by guarantee.

However, for an entity to enjoy the tax benefits of being a charity, it must be:

• registered as a charity with the Australian Charities and Not-for-profits Commission; and
• endorsed by the ATO for tax concessions.

For endorsement as a charity, the company must be established for one of the following purposes:

• advancing health;
• advancing education;
• advancing social or public welfare;
• advancing religion;
• advancing culture;
• promoting reconciliation, mutual respect and tolerance between groups of individuals in Australia;
• promoting or protecting human rights;
• advancing the security or safety of Australia or the Australian public;
• preventing or relieving the suffering of animals;
• advancing the natural environment;
• any other purpose beneficial to the general public that may be reasonably regarded as analogous to, or within the spirit of, the above purposes; and
• promoting or opposing a change to any matter established by law, policy or practice in the Commonwealth, a state, a territory or another country, in furtherance or protection of one or more of the above purposes.

A company is a "non-charitable not-for-profit" company if:

• it is not carried on for the profit or gain of members; and
• its Constitution (or other governing document) prohibits the company from making distributions of any kind (money or property) to its members; but
• the company does not carry on its business for charitable purposes.

These kinds of companies do not need to apply for endorsement as income tax exempt. Instead, they self-assess their status. However, before doing so they should seek legal advice to ensure the company fits into one of the required categories. Examples of relevant organisations include: a community service organisation, a sporting organisation, an educational institution, a religious organisation. 

The Not-for-profit Pty Ltd Company Registration has been developed mainly for use as the trustee of an ancillary fund (whether a public or private ancillary fund). It can also be used for other not-for-profit purposes, such as a charity if it seeks and obtains charity status. 

The Public Company Limited by Guarantee has been developed for use as a not-for-profit organisation, which may also seek charity status. 

The main differences between the companies are:

• the Not-for-profit Pty Ltd Company Registration product establishes a proprietary company, limited by shares. It has a share capital as per any other proprietary limited company, that is, its funding comes from shareholders and, in limited circumstances, the public. Given the entity is not-for-profit, it is not permitted to distribute profits or assets to its shareholders. The company must comply with all obligations of proprietary companies under the Corporations Act 2001 (Cth).
• the Public Company Limited by Guarantee product establishes a public company, limited by guarantee. The company does not have a share capital and its funding comes from the public. The limit of a member's liability is called a 'guarantee' — a nominal amount the member agrees to pay in the event that the company is wound up. It is not permitted to distribute profits or assets to its members. The company must comply with all obligations of public companies under the Corporations Act 2001 (Cth).

There are various other types of structures that may also be suitable for not-for-profit entities, such as incorporated associations. You must seek your own legal advice about what kind of structure is best for you.

A company can issue different classes of shares with the rights and restrictions attached to them relating to distributions, voting and receiving notice of meetings, distinguishing it from other classes. A SMSF trustee company has several restrictions on it though which we believe would make issuing different classes of shares futile.

The SMSF corporate trustee is not only prohibited from distributing its income or property to its members, but also only permitted to act as a trustee of a regulated superannuation fund, meaning it wouldn’t be holding any assets for the benefit of its members or deriving any income anyway. Decisions made by the company on behalf of the super fund are made by the directors of the SMSF corporate trustee in accordance with the Superannuation Industry (Supervision) Act 1993.

It is for these reasons that the Patricia Holdings SMSF Trustee company constitution only allows for ordinary or preference class shares to be issued at the time of company registration. There is, however, a clause in the constitution that allows members to issue new classes of shares and vary their rights by way of special resolution as they see fit.

A Self-Managed Superannuation Fund (SMSF) is a Superannuation Trust.

An SMSF is a trust structure that provides benefits to its Members upon retirement. The main difference between an SMSF and other super funds is that the Members are also the Trustees of the fund giving them a high level of control when it comes to tailoring the fund to meet their individual needs.

All assets held by the corporate trustee are being held for the benefit of the super fund. This means that on a deregistration of the company, the assets would either be distributed to the members at their retirement, or they would be transferred over to a new trustee – this transfer could only be to a different trustee company, to the members in their capacity as individual trustees, or, to an industry super fund.

This special purpose company may only act in the capacity of trustee of the SMSF. Any assets the company holds must be held for the benefit of the members of the super fund. The capital and profits of a super trustee company cannot be distributed to the members. This should be written in the company’s constitution in order for the company to be eligible for ASIC’s concessional annual review fees.

Of course you can. To meet ASIC’s eligibility requirements of a special purpose superannuation trustee company and take advantage of the reduced ASIC annual review fee, you will need to make sure that the constitution:

• prohibits distribution of the company’s income or property to its members; and
• specifies that the sole purpose of the company is to act as the trustee of a regulated superannuation fund within the meaning of section 19 of the Superannuation Industry (Supervision) Act 1993.

Yes, the Patricia Holdings’ SMSF Trustee Company setup is considered a special purpose company registration according to ASIC and is eligible for the reduced ASIC annual review fee.

The legal requirements for a special purpose superannuation trustee company are set out in section 3(f) of the Corporations (Review Fees) Regulations 2003 under the Corporations Act 2001 (Cth). The regulations state that the constitution:

• prohibits distribution of the company’s income or property to its members; and
• specifies that the sole purpose of the company is to act as the trustee of a SMSF within the meaning of section 19 of the Superannuation Industry (Supervision) Act 1993.

The Patricia Holdings’ SMSF Trustee company Constitution complies with these regulations.

Through Patricia, you can order your company online, or you can download an order form and email or fax it to us. Online ordering is marginally cheaper than completing a “manual” order form.

To order a company you can follow the links to online ordering.

Click “here” to download a PDF order form for a Standard Pty Ltd Company.

If we have any queries about your order or require any further information we will contact you as soon as possible.

After the company is incorporated the documents are sent out to you by email and/or courier depending on your selection.

If you have made a mistake in your application and your company has been incorporated with incorrect information you will need to contact ASIC directly. If your mistake is immaterial then ASIC may well be willing to correct the error over the phone. More serious mistakes made by you can be fixed by lodging a Form 492 with ASIC. We are unable to lodge this on your behalf but are more than happy to assist you with the process. ASIC require evidence that we made the mistake if they are to accept the Form 492 from us.

And of course, if we make a mistake we will promptly lodge the Form 492 to rectify the error in your company registration. 

Patricia Holdings can register most company types. We can register and provide compliant documents for the following types of companies:

• Proprietary Limited (Pty Ltd) company
• Superannuation Trustee Pty Ltd company
• Unlisted Public company
• Limited By Guarantee company
• Not-for-profit Pty Ltd company (including as trustee of an Ancillary Fund)
• Home Unit company

Before registering the company with Patricia Holdings, you can check the company name availability by searching the ASIC register “here”

Alternatively, you are more than welcome to call or email us, and we can search the name for you.

Different company types have different requirements.

At a minimum you’ll need:

• A company name
• State of registration
• A registered office address - a PO Box address is not acceptable
• Principal place of business address- a PO Box address is not acceptable
• Officeholder details (full name, residential address, date & place of birth)
• Members names and addresses (shareholders)
• Number, class and value of shares

For more information, please refer to the COMPANY REGISTRATION CHECKLIST. 

The Public Officer of a company is the person who deals with the Tax Office in relation to the company's taxation affairs such as record keeping and submitting company returns.

Under the Income Tax Assessment Act 1936 (Cth), Companies are required to appoint a Public Officer within 3 months of the company commencing to carry on a business or derive an income in Australia. If a Company doesn't appoint a Public Officer within that 3 month period, it is guilty of an offence for each day it doesn’t have a Public Officer. Please note that we are unable to appoint the Public Officer on your behalf at the time of incorporation. 

We do however provide both a Consent to Act as Public Officer template and a notification letter that you can send to the ATO after incorporation to ensure compliance. Please note however that the Public Officer can only be appointed to a company that has a TFN and/or ABN.

If Patricia Holidings completes the ABN application for your company you will be asked to nominate a Public Officer and and we are able to appoint this person at the time of lodging the ABN/TFN application.

The appointed Public Officer a must be at least 18 years of age, an Australian resident and must understand the nature of their appointment.

A Trust can be the beneficial owner but the Trustee of the Trust is the legal owner of the shares and holds the shares on behalf of and for the benefit of the Trust. It is the Trustee who is the shareholder of the company.

An Ultimate Holding Company has overall control of another company. It can have any number of subsidiaries but cannot be a subsidiary itself. It is sometimes referred to as a controlling entity.

An example of an ultimate holding company is seen in the instance of Wesfarmers - both Kmart and Coles are separate subsidiary companies, however they are both owned by Wesfarmers, a global conglomerate that has overall control of several smaller companies.

After the company registration, ASIC supplies the ACN (Australian Company Number) and then you can apply ABN via ATO (Australian Taxation Office) with the A.C.N. provided. It is a separate process.

ABNs are not compulsory. However, there are many good reasons to have one, for example, ABNs help you:

• to deal with the ATO; and
• in dealing with other businesses when supplying goods or services to them or when purchasing goods and services.

You also need an ABN to register for GST. Entities carrying on an enterprise in Australia with a GST turnover of $75,000 must register for GST. More information can be found at ato.gov.au.

Yes, a foreign person can be a director of a company in Australia, however they cannot be a sole director of an Australian company. Section 201A of the Corporations Act 2001 sets out the minimum number of directors, including the minimum number of Australian directors that a company must have. It states that a private pty ltd company must have at least one director, who must ordinarily reside in Australia. A public company must have at least three directors and at least two directors who ordinarily reside in Australia.