SUPERCentral SMSF governing rules update timeline – 2006 to 2021
This important new client support service document lists all of the legislative and regulatory changes that have been incorporated into the SUPERCentral Governing Rules from inception in 2006 to today.
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Transition to retirement pension (“TRIS”) moving to retirement phase
A TRIS no longer meets the definition of transition to retirement pension in SIS sub-reg 6.01(2) when the pensioner has met a condition of release in respect of which the cashing restriction is nil. Since 1 July 2017, the TRIS automatically moves into retirement phase as soon as a member reaches age 65. For the other conditions of release, members need to notify the trustee for the TRIS to move into retirement phase (ATO GN2019/1). The pension will thereafter continue as an account based pension under SIS sub-regulation 1.06(9A) and Schedule A of the Governing Rules.
Minimum pension payment in the year of death of pensioner member
In the article “Starting and stopping a pension”, the ATO has clarified minimum pension payment requirements for account based pensions in the year of death of the pensioner, as below:
• single life pension – no minimum pension payment is required;
• auto-reversionary pension that continues to the reversionary pensioner – minimum pension is payable in the year of death of the pensioner.
Abolition of anti-detriment payments
From 1 July 2017, superannuation funds were only allowed to effect anti-detriment payments of eligible death benefits in respect of members who died on or before 30 June 2017 and the payment had to be made by 30 June 2019. From 1 July 2019, anti-detriment payments were no longer available. Former section 295.485 of the ITAA 1997 which made provision for the tax deductions that enabled anti-detriment payments to be made has been repealed.
General investment clause
A general investment clause has been added to Rule 3.4 as an integrity measure to bolster trust fund investments in any authorised investments.
Clarification of what happens if reversionary beneficiary ceases to be eligible to receive a death benefit income stream
A reversionary beneficiary may survive the pensioner but as at the death of the pensioner may be a SIS dependent under the SIS Act but not an eligible recipient of a death benefit income stream.
COVID-19 Superannuation Measures
The Governing Rules will be amended to give effect to the Federal Government’s coronavirus economic response that allows account based and similar pensions to reduce the annual minimum pension limit for the 2019-20 and 2020-21 financial years. This measure is to assist super pensioners to avoid selling assets with loss positions to fund annual pension payments.
Investment strategy review
Rule 5.7(f) of the Governing Rules has been amended by the insertion of “review regularly” to “formulate and give effect to an investment strategy”. At the same time, the reference to “must review regularly that investment strategy” at the end of the subsection has been deleted.
This amendment is to align Rule 5.7(f) totally with sub-regulation 4.09(2) of the SIS Regulations. Sub-regulation 4.09(2) provides that “the trustee of a superannuation entity must formulate, review regularly and give effect to an investment strategy.” The “review regularly” requirement was formally introduced into SIS sub-regulation 4.09(2) as part of the Government’s Stronger Super reform package.
The amendment will also give weight to the current ATO “best practice” approach to investment strategy compliance.
NALI and NALE
Under the new rules, income amounts attributable to non-arm’s length expenditures, outgoings or losses of a SMSF (NALE) are generally treated as non-arm’s length income (NALI), in addition to inflated income derived from non-arm’s length schemes.
As a result of the changes, it is important for SMSF trustees to distinguish the capacity in which they provide services or perform duties for their SMSFs. If the services are provided by the trustee in the capacity as an outsourced party, any undercharge or no charge will result in NALI. On the other hand, if the duties or services are performed by the trustee as a trustee of the fund, they would not be entitled to receive any remuneration. The Governing Rules amendment will strengthen the “capacity” distinction and enable the trustee acting in the outsourced third-party capacity to be remunerated on terms which meet both the existing Section 17B SIS Act requirement and the new NALE requirements.
Mutual Capital Instruments
The Governing Rules have been amended to expressly permit investment in Mutual Capital Instruments (“MCI”). Recent changes to the Corporations Act 2001 allow a so-called qualifying ‘mutual entity’ to raise capital through an MCI.
The change has been effected by the inclusion of MCIs to Rule 3.4 (p). Rule 1.2 Dictionary has also been updated to include the MCI definition.
Trustee exercise of power
It is recognised that in the exercise of a trustee power, the trustee’s other duties may affect the exercise of such power, in addition to their other interest or the interest of their associates.
Rule 5.5(d) has been amended to include interest “and duties” that may be affected by the exercise of the power. Rule 1.2 Dictionary has also been updated to include the meaning of “Associates”.
Maximum number of fund members - Maintain current maximum four members with provision to increase to any "greater number" to be specified by the SIS Act. This addresses the Government's proposal to increase the maximum number to six.
Automatic pension restart - Provision for a pension to recommence automatically should a Fund fail to meet an applicable pension standard in the previous year.
Binding death benefit nomination - Addition of the term "non-lapsing" to reinforce the indefinite duration of BDBN.
Crowd-sounced funding regime - Permit investment in crowd-sourced fund offers issued by unlisted proprietary companies.
Notified Foreign Fund Products - Allow the Fund to invest in NFFP registered in Australia.
UK pension transfer - Update provisions in relation to permitted access conditions and mandatory payment methods in accordance with UK Legislation.
- · First Home Super Saver Scheme – allow trustees to act upon release authorities issued in conjunction with this scheme
- · Downsizer Contributions – permitting trustees to accept non-concessional contributions which qualify as downsizer contributions
- · Early Stage Innovation Companies – allow trustees to acquire and hold shares in companies which qualify as ESICs
- Digital Currencies – permit trustees to acquire, hold, receive contributions in the form of and to pay benefits in the form of digital currencies
Innovative superannuation income stream regulations – which permit self managed superannuation funds to issue lifetime guaranteed income streams where the income stream is wholly supported by a purchased
Contribution splitting – by transfer of allocated amount to another superannuation fund
NSW transfer duty changes – transfer of primary production land as an in specie lump sum benefit payment – to allow these transfers to access a recently introduced transfer duty exemption
- Binding death benefit nominations – ability to restrict nomination to specific interests – ensuring that composite nominations are treated as separate nominations for purpose of determining their validity
- Expanded list of authorised investments – investing in limited liability partnerships as a limited partner
- Conferral of powers on trustee to respond to the introduction of the Fair and Sustainable Superannuation changes
- Modifying terms of pensions payable in respect of deaths which occur on or after 1 July 2017 - so that such pensions must continue to be paid until the pension account is exhausted or until the pension is cashed out
- Allowing trustees to commute a pension pursuant to a commutation authority
- Expressly permitting the trustee to accept catch up contributions
- Permitting the trustee to purchase superannuation annuities for members
- Permitting trustees to acquire shares through crowd-sourced funding offers
- Permitting financial managers of incapable members to exercise the member’s rights to claim or vary benefits or to make or vary binding death benefit nominations
- Restricting the ability of Enduring Attorneys from making or revoking binding death benefit nominations where the instrument appointing the attorney expressly precluded from making or varying binding death benefit nominations
- Modification of SIS Contribution Acceptance Rules for CGT non-concessional contributions arising from earnout payments
- Express reference to conversion of payment split interests under Reg 14G of the Family Law Splitting Regulations
- Imposition of age 55 precondition for UK Benefit Transfers
- Disclaimer of death benefits
- Certification period for Terminal Medical Condition access changed from 12 to 24 months
- Variation of Release Authorities
- Change UK Pension Transfers (QROPs) rules
- Variation of payment terms of death benefit payments
- Validity of BDBNs – if valid at date of making not invalidated by Governing Rule change
- Grandfathered insurance arrangements
- Release authorities – Excess contributions, Division 293 tax
- Trustee Authorised Investments
- Commutation of pensions up to Unrestricted non-preserved component
- Saving provisions for BDBN – to address Munro v Munro decision
- Medical evidence for removal of trustee
- Appointment of Legal Personal Representation as trustee pending payment of death benefit
- SuperStream payments and data standards
- Commutations of complying pensions
- Release Authorities
- Unwinding holding trusts
- Insurance cover arrangements
- Conditional Death Benefit allocations
- Member initiated trustee changes
- Higher Income Contributions Tax
- New Excess Concessional Contributions Tax arrangements
- Pension Payment change – SMSF 2013/2
- Revised LRBAs
- Revised Insurance cover arrangements
- Revised Risk & Investment Strategy provisions
- Revised Accounting Rules
- Revised Statutory Covenants for SMSFs
- New Information Standards – Benefit Rollovers & Transfers
- Approved Auditor
- Trustee Admin Penalties
- Rectification Directors
- Education Directors
- WA Duty concession: in specie transfers
- Retail trading of CGS & Corporate Bonds
- Revised LRBA provisions
- Operational Risk Reserve
- Remuneration of Trustees (s17B)
- Extension of 25% discount on min pension payments
- Small excess concessional contributions refund
- Low Income Super Contributions
- QROPS Changes
- Carbon Tax
- Collectibles & Personal Use assets – special investment rules
- Forfeiture Orders
- Ring fencing of assets & Custodians
- Terminal medical cover – to permit t/ee to take cover
- EPOAs exercising commutation rights
- BDBNs – separated but not divorced spouse
- Deemed contributions
- Generic Minimum Pension Relief
- Acquisition of assets from related super funds on breakdown of relationships
- Changes of trustees –excluding corporate trustee as member
- Payment of benefits by Promissory Notes
- Allocation of deemed contributions
- Partial anti-detriment payments
- Fund mergers
- Min Pension Relief 2010/11
- Acceptance of Contributions from Approved Clearing Houses
- New Borrowing Rules – Limited Recourse Borrowing
- Transfers of Capital & Revenue Losses on Fund Mergers
- Tailoring of Binding Death Benefit Nominations
- Reimbursement of Establishment Expenses
- UK Pension Transfers (QROPS)
- Interaction between BDBNs & Reversionary Pensions
- Variation of Pensions post commencement
- Bank approved Conflict of Interest provision
- Min Pension Relief 2009/10
- SIS Compliance – restricted to SMSF rules – response to Donovan v Donovan
- Death of Member/Trustee – LPR can be appointed as trustee
- Death of sole surviving member/trustee
- Reserves – contribution reserves explicit
- Partial BDBNs
- Temporary Residents super access changes
- Min Pension Relief for 2008/09
- Same Sex/De facto Relationships
- WA Duties Act – in specie transfers
- Trustee dealing in B/Es & Negotiable Instruments (supergearing)
- Paying insurance from reserves
- Tailoring terms of account-based pensions (Exotic pensions)
- First Home Savers Accounts
- Enduring Powers of Attorney – access benefits/BDBNs
- Internal rollover from complying to market linked pensions
- Instalment warrants – further provisions
- Terminal medical condition
- External rollover of complying pension to market linked pension
- Instalment warrant /geared investments provisions
- Real estate transfers – concessional rates
- Simplified Super Changes – account-based pensions, excess contribution taxes, return excess fund capped contributions, pension commutation restrictions
- Simplified Super Changes – TFNs, release authorities
- Simplified Super Changes – allocated to account based pension limits
- Contribution Limits as per 2006 Budget
- Anti-detriment accounts
- Grandfathering of BDNs made before conversion to SUPERCentral