DBA Lawyers senior associate David Oon said while the SIS regulations permit the restrictions associated with transition to retirement income streams (TRISs) to fall away, if restrictions or rules for the TRIS have been “built in or hard-wired” into the pension documents, this may not be the case.
For example, Mr Oon said the TRIS documents may state that pension payments must be always limited to a 10 per cent maximum and that there are commutation restrictions. Or the documents may not be clear on this.
“So it could be the case that your pension documents say that the 10 per cent maximum is still there,” he said.
Even if the documents are simply vague, Mr Oon said it’s not ideal for clients to have documents that that are unclear as to whether the client can actually withdraw more than the 10 per cent from the pension once they have met a condition of release with a nil cashing restriction.
“If they’re taking all the money they like and their documents aren’t clear or worse, their documents flat out say that there’s a 10 per cent restriction on pension payments, these restrictions probably don’t fall away [upon meeting a condition of release] and so people may not be adhering to their own rules,” he said.
“You might ask me, ‘well as long as the SMSF trustee is complying with the super rules, the ATO can’t really check that part necessarily, so does that even matter that they’re not adhering to the special requirements or the hard-wired requirements of their own TRIS documents?” he said.
Given that the fundamental duty of an SMSF trustee is to comply with the terms of the trust, Mr Oon said this could have implications for the individual.
“The trustee’s most fundamental duty is to follow one’s own rules. So what are the rules of a superannuation fund or as we often refer to them what are the governing rules of an SMSF? They’re actually defined much more broadly than the deed, contrary to popular belief. Section 10 actually defines governing rules,” he said.
“Governing rules are defined as any rules contained in a trust instrument (so for example the deed), other document or legislation, or combination of them governing the operation of the fund.”
Therefore, SMSF trustees are held to their pension documents in a very real sense, which is especially true where disputes occur in relation to the fund.
“So what happens if a family dispute or some other kind of dispute occurs later and a person has been taking more than their pension documents actually let them, I think you’re in a bit of a sticky situation,” he said.
Treasury/ATO and their single minded tax focus has caused this problem and it will be the industry that will need to address it.
Possibly the cleanest way through this is for trust deeds to provide for the auto revert and have the authority over pension documentation.
The deed would prescribe the conditions for pensions which will remove the issue for new pensions however, in the meantime, every TRIS needs a review against the governing rules it is operating under.
Thankyou Treasury, we were looking for work – things have been a bit quiet in super lately.