Can I use my own constitution to register a SMSF Trustee Company with Patricia Holdings?
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.
Can the SMSF Trustee Company’s capital and profits be distributed to the members?
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.
What happens to the assets of a SMSF Trustee Company on a winding-up?
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.
What is a Self-Managed Super Fund (SMSF)?
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.
What would be the point of having different classes of shares in a SMSF trustee company?
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.
Is a SMSF Trustee Company considered an ASIC special purpose company?
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.
