Regulator tipped to scrutinise 6-member funds for best interests
If the six-member SMSF bill is passed, a technical expert expects that regulators will be closely examining advice to set up funds with five or six members to ensure it meets the best interests duty.
Earlier this month, the government reintroduced the measure to increase the number of members allowed in an SMSF from four to six back into Parliament.
For clients who are considering adding additional members to their fund or establishing an SMSF for the first time if the measure is legislated, BT head of financial literacy and advocacy Bryan Ashenden said it will be very important for advisers to consider what has actually changed with their client’s circumstances.
“If you’ve talked about an SMSF in the past with them and they’ve said no, and are now reconsidering it because of the opportunity to maybe have six members in there, what has actually changed? Is there an actual circumstance that has changed beyond just the maximum number of members?” Mr Ashenden questioned.
“Is there a change in their circumstances that now actually says an SMSF is going to give a better result than something else would? There needs to be a justification for it. If they’re not going to be doing anything different to what they could have done in the retail environment, then you need to question whether it’s the right thing to do.”
Mr Ashenden said advisers will also need to think about the longer-term implications of adding additional members or establishing an SMSF.
“If there are six people in the fund, how complicated is the fund going to be to operate? What’s going to happen when someone dies? How well do all those trustees actually understand the implications of being in an SMSF and understand their roles and responsibilities,” he said.
“I suspect this is something the regulator might look at when they start to see funds set up with five or six members.”
If the adviser does decide that adding additional members to the fund or setting up a fund is appropriate, Mr Ashenden said there are also considerations that will need to be made in relation to trustee structure and trust deed.
It may not even be possible to use an individual trustee structure depending on what state the client is in, he said.
“You also need to be very conscious of what the actual trust deed itself says because, just because superannuation law is going to change to allow six members, the trust deed may not allow this,” he said.
“For existing clients, you also need to think about how you’re going to achieve a fund with more members. Are the clients planning to set up a brand-new fund with six members, roll everything across and then close the old fund? Or will they look to grow their existing SMSF?”
These kinds of decisions will also require trust deed amendments, he stated.
Where there are two SMSFs that have been set up previously, advisers will also need to think about how those two funds can be merged together.
“You also need to think about the FASEA code considerations about acting in the best interests of each of the clients because each member is a client in their own right, and is it the right thing for that client to move to a bigger SMSF? What are the longer-term implications?” he cautioned.
Miranda Brownlee is the deputy editor of SMSF Adviser, which is the leading source of news, strategy and educational content for professionals working in the SMSF sector.
Since joining the team in 2014, Miranda has been responsible for breaking some of the biggest superannuation stories in Australia, and has reported extensively on technical strategy and legislative updates. Miranda has also directed SMSF Adviser's print publication for several years.
Miranda also has broad business and financial services reporting experience, having written for titles including Investor Daily, ifa and Accountants Daily.