Safe harbour rules misleading when a member goes abroad, warns adviser
Despite the government agreeing to commit to an extension of the safe harbour rules from two to five years, if an SMSF member leaves the country for more than two years, the rules may not hold.
Annie Dawson, a senior SMSF technical specialist for Heffron, said the two-year safe harbour is not a “blanket exemption” for trustees who plan to be outside Australia for a period of up to two years.
“It simply confirms that a fund could still have its central management and control ordinarily exercised here in Australia even though CM&C is temporarily outside of Australia for up to two years,” she said.
A fund’s central management and control (CM&C) refers to the strategic and high-level decision-making processes and activities. It includes duties trustees are responsible for such as setting, reviewing and updating the fund’s investment strategy or deciding how the fund’s assets are used to fund member benefits.
“To remain an Australian superannuation fund, two main tests must be met at all times. The first test requires a fund’s strategic and high-level decision-making – the central management and control – to be ordinarily in Australia. This test is like the one used to work out if a company is an Australian resident for tax purposes,” she continued.
“The second test – the active member test – is designed to ensure that tax concessions are only given to members who are Australian tax residents. A member of the fund will be an active member if super contributions are made on their behalf, or they intend to make their own super contributions or rollovers into the SMSF.”
But that doesn’t mean SMSF members can’t travel for longer than two years, Ms Dawson said – there just needs to be a little more planning to ensure their fund adheres to the criteria and regulations.
“Before heading off, SMSF trustees and members should ensure their travel plans will not affect their fund’s status as an Australian superannuation fund.”
“There are two big reasons why: funds that fail to qualify as an Australian superannuation fund will pay tax on their income at 45 per cent going forward as well as having all or part of the fund’s assets taxed at 45 per cent in the year the fund stops being an Australian superannuation fund.
“And if you thought that sounds bad, here is the worst part: unlike SIS compliance breaches, the Commissioner does not have discretion to overlook an SMSF becoming a non-resident fund and therefore a non-complying fund.”
Ms Dawson said it may be possible for CM&C of an SMSF to be temporarily exercised outside of Australia on the proviso that it’s usually exercised in Australia.
“This means for example, that if the trustees will travel overseas for a short holiday and exercise CM&C while abroad, then the fund’s CM&C would still ordinarily be in Australia.”
“If, however, the trustees are overseas for a longer period like a secondment for 12 months or even longer, it becomes harder to demonstrate that CM&C is only temporarily outside Australia and that CM&C is ordinarily in Australia.”
There are several factors that may determine whether a fund’s CM&C is temporarily outside Australia including the length of time a trustee intends to be outside Australia, the actual time they remain overseas, whether a trustee has an intention to return to Australia and connections they maintain with Australia whilst abroad.
“A trustee could be absent for a period of fewer than two years and CM&C may still cease to ordinarily be in Australia,” Ms Dawson said.
“For example, if a trustee was overseas for a period of six months, they may still fail the CM&C test if, when they first left Australia, their intention was to permanently leave Australia.”
In regard to the active member’s test, a fund will satisfy the active member test provided the fund has, at all times, no active members at all so the fund is not receiving any super contributions or rollovers at all, or the balances held in the SMSF by the active members who are Australian tax residents make up at least half the total active member balances in the fund.
Ms Dawson said for members who will cease to be Australian tax residents when they go abroad, the simplest way to meet this test is to ensure they do not have super contributions or rollovers made to their SMSF whilst they retain their non-resident tax status.
“A word of caution – don’t be tempted to allow members who are foreign residents to still make super contributions or rollovers, just because they have small balances in the fund,” she said.