Changelog - Smarter SMSF Deed Rules
This table provides an update of the changes made to the Smarter SMSF trust deed (version control):
Ref: NSF-Deed-2023-07, SDV-Deed-2023-07, LTD-Deed-2023-07,QROPS-Deed-2023-07 | Date Updated: 1 July 2023
| Rule | Amendments |
| Guide - Rule 1 | Updated to include reference to gender neutral individuals for the purposes of interpreting certain rules where singular means plural, or he means she, etc. |
| Rule 1.2 | Added term gender neutral for purposes of interpreting things about the Rules of the Fund |
| Guide - Rule 11 | Updated the Guide to reflect the changes within Rule 11 regarding written direction of a DBN, BDBN or SMSF Will being provided to the Trustee either during the lifetime of the Member, or upon their death. |
| Rule 11.1 | Rule has been updated to make clear that written direction may be provided to the trustee to accept the different forms of a death benefit nomination. |
| Rule 11.2 (new) | Allows for a member to choose the timing of when the written direction of any DBN, BDBN or SMSF Will is provided to the Trustee - i.e. during their lifetime, or following their death (by another person). This provides flexibility for the Member should they not wish to disclose the details of any nomination to the Trustee(s) of the Fund prior to their death (similar to other testamentary documents, such as a person's Will). However, where the written direction is not provided prior to the Member’s death, a 6 month time limit will apply following the date of death of the Member to produce the nomination to the Trustee (by another party). Where the 6 months time period has been reached, the Trustee may treat the Member as having died without having made a written direction. This is designed to avoid any future objection where such document may be found at a later stage after the Trustee has paid the Member Death Benefits to one or more dependant beneficiaries, or to the Member’s Legal Personal Representative. |
| Schedule 2 - BDBN sample | As a result of the change to Rule 11, the Binding Death Benefit Nomination has been updated with the Member acknowledging that if the written notice is not provided to the Trustee until after the Member’s death, then a 6-month timeframe exists to produce to form, otherwise it is deemed to have not been made by the Member for the purposes of paying their Super Death Benefits. |
| Guide - Rule 30 (new) | A new guide has been created to explain the operation of the signing of documents, which provides certainty around the use of electronic means - i.e. where allowed, documents can be signed in a technology neutral way (wet-ink or electronically). |
| Rule 30 (new) | Rule has been added to allow for the Fund to apply a technology neutral approach to the signing of certain documents under various Commonwealth laws, consistent with the Government’s universal model introduced within section 110A of the Corporations Act. It is important to note that certain exemptions continue to apply to the Electronic Transactions Act 1999 that limit the ability for some SMSF documents to be signed by electronic means. NB. Definitions have been moved to Rule 31 of the Deed. |
| Product Disclosure Statement (PDS) | The PDS has been updated to reflect changes in various caps and thresholds, along with updating for the TBAR requirement changes from 1 July 2023. |
| Ancillary Documents | Minutes of Meeting:
Consent to Act - director:
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Ref: NSF-Deed-2022-07, SDV-Deed-2022-07, LTD-Deed-2022-07,QROPS-Deed-2022-07 | Date Updated: 1 July 2022
| Rule | Amendments |
| Rule 6 (Guide) | Updates the Guide to accommodate the changes from 1 July 2022, including removing references to individuals that are 67 - 74 needing to meet the work test for non-concessional contributions that fall under the definition of an ‘Authorised Contribution’. |
| Rule 12 (Guide) | Added information regarding the fund trustees electing to claim a future service deduction in lieu of claiming insurance premiums in the financial year where a SMSF member had passed away (and they meet the qualifying conditions. |
| Rule 18 (Guide) | Updated ‘Method 3 - Income Method’ to include using a daily weighted average calculation to determine earnings for a particular member’s account and/or superannuation interest. Aligns to the approach taken with SMSF software for allocation for net earnings. |
| Rule 21 (Guide) | Updated to remove reference to any ECC charge being applied to excess contributions after 1 July 2021. |
Ref: NSF-Deed-2021-07, SDV-Deed-2021-07 | Date Updated: 1 July 2021
The order form and templates have been updated to allow for orders with up to a maximum of 6 members in a SMSF - applies to both corporate trustees (directors) and individual trustees.
| Rule | Amendments |
| Rule 3.8 | Removes the reference for transfer to an Eligible Rollover Fund and replaces within the rule with transfer to the Australian Taxation Office to reunite the monies with an active account of the departing member. Comment: The Treasury Laws Amendment (Reuniting More Superannuation) Bill 2020 closes the use of Eligible Rollover Funds (“ERFs”) from 30 June 2021 (balance < $6,000) and 31 January 2022 for all other ERFs. See ATO website for further information, https://www.ato.gov.au/Super/APRA-regulated-funds/In-detail/News/Eligible-Rollover-Funds-and-Trustee-Voluntary-Payments/ |
| Rule 4 |
Guide updated to include SuperStream standard for the purposes of accepting rollovers into SMSFs from an APRA regulated fund, along with dealing with the ATO for various release authorities. 4.2(d) updated to reflect obligation on Trustee to obtain Electronic Service Address (ESA) to deal with rollovers, employer contributions, etc. |
| Rule 6 (Guide) | Updated to reflect various contribution rules changes and additional contribution types that form part of the Authorised Contribution definition from 1 July 2021. |
| Rule 14.1(e) | Updated to reflect amendments to section 52B of the SIS Act to include Trustee duties to act in the best financial interests (formerly best interests) of the fund members. This forms part of the Treasury Laws Amendment (Your Future, Your Super) Bill 2021 that was enacted as an Act on 22 June 2021, with effect from 1 July 2021. Note: Best financial interest (SIS covenant) – specifically stated to be included in governing rules, where not expressly included in the deed. |
| Rule 16.4 | Added to the beginning of sub-rule, “Unless the Initial Trustee decides otherwise,” Comment: This will allow for Trustees to consider an alternate method for voting on different events or actions within the fund.
Comment: This amendment provides greater clarity in finding a date in which to determine a member’s account balance for the purpose of voting on decisions. |
| Rule 25.2(b) | Special Rules for Income Streams Updated to allow for a variation of the level of reversion, in addition to adding or removing a reversionary beneficiary with the income stream. |
| Definitions |
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Ref: NSF-Deed-2020-03, SDV-Deed-2020-03 | Date Updated: 10 March 2020
Amendment(s):
- Correction in Rule 6 guide that allows for a downsizer contribution to be made 'on or after 1 July 2018'. Guide had stated as after 1 July 2018.
- Deletion of Rule 12.7 as duplicate of Rule 12.5
- Correction in Rule 25.1 to reference 25.2 when creating a special rule for income streams.
- Correction to Rule 25.8(g) to show as 'and' in the following section - '...between 18 years of age and 25 years of age AND be financially dependent upon the deceased superannuant at the time of the Member's death.
Ref: NSF-Deed-2019-07, SDV-Deed-2019-07 | Date Updated: 1 July 2019
Amendment(s):
- New definition - ADUS meaning automated deed update service
- Rule 29 - added into rule the ability to change the fund rules as part of the 'automated deed update service' (ADUS).
- Updated PDS for new financial year 2019/20
Reason(s):
Smarter SMSF is in the process of developing an automated deed update service that provides you with the option to subscribe to a service that keeps the deed up-to-date as and when any changes are made.
Ref: NSF-Deed-2018-12, SDV-Deed-2018-12 | Date Updated: 7 December 2018
Amendment(s):
- Added new sub-clause to Rule 15 - ff)(v) Carrying on a business: subject to the Superannuation Laws and the fund retaining its Complying SMSFs status, to carry on a business or to undertake business like activities.
Reason:
Any form of significant property development, in particular to comply with the business real property definition is treated as a property development business as opposed to "property investment." An express power to conduct a business has now been added, in addition to the incidental powers which form part of a businesslike activity (e.g. leasing, borrowing, entering into contracts… money etc.).
With the ATO having set out its views on what is the carrying of a business in an SMSF particular in relation to the sole purpose test (see link below), the natural starting point for any permissible activity is that the SMSF is permitted to carry on a business pursuant to the terms of its trust deed - see
https://www.ato.gov.au/Super/Self-managed-super-funds/Investing/Carrying-on-a-business-in-an-SMSF/
Ref: NSF-Deed-09-2017, SDV-Deed-09-2017 | Date Updated: 15 September 2017
Amendment(s):
- Amended Rule 25.1(c) by adding two parts to the clause where an individual that is in receipt of a TRIS satisfies a nil cashing condition
- (i) specifically allows for a TRIS to move into retirement phase upon request (written notice) in accordance with the tax laws;
- (ii) allows for a replacement income stream of the TRIS to commute and re-purchase as an ABP.