How can we help?
Placing an order is as simple as clicking Order Now or selecting the order type from the menu headers! Once you have logged in (using your registered email address and password) you will be able to place as many orders as you need completing our user friendly online forms. If, for instance, you're ordering a trust with a new corporate trustee, you can order the company, add it to your Cart and then order the trust. The company details will be stored in our system, making the trust form easy to fill out and you can process both orders through the Cart together!
If you are more comfortable with paper forms, please contact us and we can send to you via email. These PDF forms can be directly typed onto and then emailed to us for processing. Please note that an administration fee applies to paper forms that can be ordered online and online orders will be processed in priority to paper forms. If your order is urgent then we recommend ordering online (and you'll enjoy the cheaper prices!).
If you make an error in an order the best thing to do is not panic! Contact us as soon as you notice and we'll be able to advise on the best course of action, depending on the situation for the particular order.
Unfortunately, in instances where a mistake has been made in a registered company, any correction will need to be made directly with ASIC. More information about mistakes in companies here.
Avoid errors by ensuring you complete a thorough review of all information before submitting an application. You can also download a checklist and email it to your client to check prior to submitting; your order will stay in Draft status until you're ready to continue.
Unfortunately, no. Our service operates by taking instructions from members (generally accountants) who have already considered all of the issues relevant to your situation - unfortunately, we do not and cannot provide legal advice, and you may wish to seek advice from an accountant or solicitor.
We provide very competitively priced business structures, and rely on providing standard form documents to accountants who know enough about what their clients need to simply complete our instruction form and send it in. The documents are checked by lawyers, but our agreements with them do not extend to providing legal advice.
If anyone needs anything more complicated, we normally advise them to seek specialist advice.
No, we do not provide any kind of legal advice, including tax advice. However, members of the NTAA can log a hotline call, and speak to one of the NTAA's tax specialists about specific tax issues.
NTAA Freecall 1800 808 105.
Please note that we primarily provide a service of setting up new business structures; i.e., new trusts, companies, partnerships and superannuation funds. We also may assist with some small changes to existing structures.
We do not and cannot assist with the general day-to-day running of the business structure after it has been set up. We do not provide legal advice.
However, the documents that we send out should assist with the general running of the particular structure. It is expected that all of the parties to the relevant documents have read them and are familiar with them (e.g., a trustee should know what is in the trust deed). In particular, the process for effecting a change to the unit holders of a unit trust, the partners of a partnership, or the shareholders and directors of a company, are provided in the relevant unit trust deed/partnership agreement/company constitution.
We can assist with:
- Certain changes to companies (including changes to officeholders, shareholders, addresses, names, and adopting a new company constitution);
- Transfer, issue or redemption of units;
- Changes in the trustee or appointor of a trust (via a deed of appointment and/or removal), or very minor changes to the trust deed of a trust (via a deed of variation; e.g., adding a power to the list of powers exercisable by the trustee);
- Vesting of a trust;
- Changes to the name of a trust or SMSF; and
- Changes to the deeds of superannuation funds.
ACT: http://www.revenue.act.gov.au/
NSW: http://www.osr.nsw.gov.au/
Northern Territory: http://www.revenue.nt.gov.au/
Queensland: http://www.osr.qld.gov.au/"
South Australia: http://www.revenuesa.sa.gov.au/
Tasmania: http://www.sro.tas.gov.au/
Victoria: http://www.sro.vic.gov.au/
Western Australia: http://www.osr.wa.gov.au/
Stamping is an archaic State government requirement, but still a necessary one. Certain documents, such as trust deeds, can't be relied on until they are stamped, and trust deeds must generally be stamped within 3 months of being made (some states require stamping within a shorter period) or else a penalty applies (note that deeds can still be stamped after that time, although a penalty may then apply).
We provide a stamping service for Victorian and New South Wales Trust deeds, check out our trusts page for more information;
However, a document executed as a deed can be enforceable, even if one or more of the parties to the deed do not provide valuable consideration.
To be a deed, the document needs to state that it is a deed, and it needs to be executed by stating that it is being "Signed, Sealed and Delivered" by any individual parties (although the requirements for the execution of a document by a company are contained in the Corporations Act 2001, and the company's own constitution). This is a technical requirement, and a throwback to when people actually need to affix their "seal" to a deed to make it valid. Even though seals are not now required, the deed still needs to state that it has been sealed.
Also, all signatures on deeds by individuals generally need to be witnessed by an independent adult.
When a "resettlement" occurs, the old trust is considered to come to an end and a new one begins. This generally happens where the trustee undertakes to do something (a new "trust") not considered when the trust was first established by the original settlor - therefore, the trust has been "resettled". Effectively, the old trust disposes of all of its assets to the new trust, giving rise to CGT and stamp duty issues.
It is commonly accepted that small changes to a trust deed, such as the addition of a trust power, will not resettle the trust, but that a change to the beneficiaries, and especially the adoption of an entirely new deed, can resettle the trust.
Unfortunately, due to the risk of resettling the trust, if you have lost your trust deed we cannot simply issue you with a new deed (except for superannuation funds). However, you may be able to do one of the following:
- Look everywhere for the deed (under the bed, behind the fridge, etc).
- Contact any banks, partners, lawyers, accountants, etc, who may have come into contact with the trust and who may have kept a copy of the deed.
- Contact the original lawyers who drafted up the deed. Even if they don't have a copy they may be able to provide you with a time frame that it was created and from there they may be able to provide you with a copy of a standard deed from that time frame. There is RISK in doing this. As it is not the exact deed and there are no schedules, it may not be accepted as the trust's deed.
- Final option: it may be possible to apply for the court to have the deed "reconstructed" by the court. This will be costly, and will probably involve giving evidence to the court about what the parties to the deed remembered it contained. This may be difficult as the original trustee or settlor may have since died. If it gets to this stage you will need to seek professional advice.
Yes! All orders placed on our website are stored in your account area in PDF format so you can login and download the documents whenever you need.
The NTAA and NTAA Corporate websites now require each employee at your firm to login using a unique email address
To login to NTAA Corporate enter your email address and NTAA password.
Please note, if you do not currently have a unique email address registered with the NTAA then you will need to set one up on the NTAA website. Please contact the NTAA directly on 1800 808 105 if you need any help logging in.
To make changes to your profile and to add, remove or edit staff, please login to the NTAA website www.ntaa.com.au. Once your profile has been updated on the NTAA, the changes will show in NTAA Corporate on your next login.
As long as the company is remaining as trustee and has only changed its name, you should keep a copy of the company name change certificate with the trust deeds.
If a third party (such as a bank) insists on this being updated in the trust deed, we can prepare a deed of confirmation to show that, although the company has changed its name, it still remains trustee of the trust. It is rare that this will be required; keeping the name change certificate with the deeds is usually sufficient.
Our website was built to support modern browsers, so we dropped support for certain ones that just can’t provide the same web experience that other browsers can. To support those older browsers would mean not being able to provide an enhanced customer experience - lower progress, less progress, and in some places, no progress.
We wanted to make sure the experience is the best it can be for the vast majority of our customers, so supporting them would have held us back.
We realise this can be annoying, so here’s a link to some recommended compatible browsers to help you upgrade. You may find this helps speed things up on other websites, too!
Multi-factor authentication, or two-factor authentication (2FA), is a way of logging into a website that requires something a user knows (password) and something they have on them (a phone). 2FA adds an extra layer of security because it requires a username and password as well as a second unique code to be generated on a second device, making it more difficult for unauthorised people to access yours and your clients' data.
Steps to Set up multi factor authentication:
- On your device (mobile or tablet), download the free Google Authenticator app from either the Apple App Store of the Android Google Play Store
- Visit ntaacorporate.com.au/two-fa-reset/setup and enter your NTAA registered email address
- You will be sent an email, click on the link to the setup page
- Using your device, scan the QR code pictured on the setup page (you will need to allow access to the camera)
- Enter the code and hit confirm.
Steps to Set up multi factor authentication:
- On your device (mobile or tablet), download the free Google Authenticator app from either the Apple App Store of the Android Google Play Store
- Visit ntaacorporate.com.au/two-fa-reset/setup and enter your NTAA registered email address
- You will be sent an email, click on the link to the setup page
- Using your device, scan the QR code pictured on the setup page (you will need to allow access to the camera)
- Enter the code and hit confirm.
If you have already set up multi-factor authentication and would like to reset it, click here and follow the prompts emailed to you.
This might be because the time on your Google Authenticator app is not synced correctly (for Android).
To make sure that you have the correct time:
- Go to the main menu on the Google Authenticator app
- Tap More
Settings.
- Tap Time correction for codes
- Tap Sync now
On the next screen, the app will confirm that the time has been synced, and you should now be able to use your verification codes to sign in. The sync will only affect the internal time of your Google Authenticator app, and will not change your device’s Date & Time settings.
Yes! When you register a company with us we can set up the company in your CAS 360 software without you needing to rekey the information. Simply authorise us in App Connect in your account and select Push to CAS 360 when registering the company. Once the company is registered we will push the information to CAS 360 and send you an email link to the newly created company.
Note: At this stage we can only connect with one CAS 360 account per organisational login.
We also create a .CMY file of company information for all companies that we register. If you use the desktop version of CAS simply upload this file to the software to create the new company record in CAS.
In order for staff to have separate logins under the one account, they each need to be listed as staff members under your NTAA membership. Staff members can be added to your NTAA profile on the members area of the NTAA website and you can also setup your email for member login here (you will need a unique email address and password).
Once each staff member is set up with their individual login on the NTAA's website, they will then be able to set up 2FA on their own devices to access NTAA Corporate.
Yes, you can use the Google Authenticator app for multiple websites.
Each website will create a new item in your app and have a unique code. Just be careful to enter the code corresponding to the correct website, which will be described in text below the code.
Export new company registrations and trust establishments to CAS 360
When you establish a company or trust with us we can create the structure record in your CAS 360 software, without you needing to re-key the information. Simply authorise us in App Connect in your account and select Push to CAS 360 when placing your order. Once finalised, we will push the information to your CAS 360 account and send you an email link to the newly created record!
Import from BGL 360 for SMSF form completion
You can connect to BGL 360 to import fund details (name, trustees and members) into our SMSF establishment, Deed of Variation (Update), Change of Trustee, Change of Fund Name, Account Based Pension and Transition to Retirement Income Stream forms. Authorising us in the forms is easy, saves time and reduces errors in rekeying the fund information.
We are working on developing further integrations with other accounting software in the near future. Please let us know which software integrations would be valuable to your practice.
Login using your email and password for a complete list of our services and prices. You can also find a price list on our website, under the heading Prices.
Yes, there is. When you login, click on My People under the My Account area.
Under My People, you will be able to Edit, Delete and Add New people, to help keep your records up to date. Making changes to My People will affect future suggestions on the forms, but will not update any existing orders.
Yes, you can see a timeline in My Products, under My Account, displaying different orders (if you have organised them through us) in chronological order.
As an example, you may have established the Orange Family Trust with us in 2012, then changed the trustee in 2016 and finally wound the trust up in 2018. These will appear separately under My Orders as a trust establishment, a trust amendment and a deed of vesting.
However, the overall view in My Products assists accountants and advisers to see the big picture of their clients' structures at a glance and easily access the relevant documents, without needing to dig around.
Click on Login and the Forgot Password link.
Enter your email address and you will be sent instructions on how to reset your password. Follow these instructions to copy the temporary password and click on the link to reset your password. Enter your email address, paste the temporary password and enter a new password (must include a mix of upper and lower case letters, at least one number and a special character).
Here's what ASIC says:
A ‘trading name’ refers to an unregistered name that businesses could use before the introduction of the National Business Names Register on 28 May 2012. It is not a registered business name.
A business name is a name under which an entity conducts a business. Businesses are required to register their business name if they carry on business within Australia and are not trading under their own name.
If you’re currently operating your business under an unregistered trading name, to continue using it you need to register it as a business name.
Exceptions to this include:
- if you are operating as an individual and your operating name is the same as your first name and surname
- if you are in a partnership and your operating name is the same as all the partners' names, or
- if you are an already registered Australian company and your operating name is the same as your company's name.
For example, if your name is John Smith and you’re operating your business under the name ‘John Smith’, it doesn’t need to be registered. If the name you trade under is ‘John Smith & Co’, then you must register the business name ‘John Smith & Co’.
The Australian Business Register and ABN Lookup still display unregistered trading names. From November 2023, trading names will be removed and only registered business names will be displayed.
A transition period is in place from 28 May 2012 to 31 October 2023 to allow businesses affected by the removal of trading names sufficient time to inform their customers, suppliers and other stakeholders of any changes to the name that they use to conduct their business.
Find out more on ASIC's website.
Whether or not legal documents can be executed electronically is complicated and the effectiveness and legality of electronic execution differs between states (and territories) and the Commonwealth. Documents that need to be witnessed personally (such as deeds) may be witnessed through the use of an audio-visual link in some states (and territories). It is essential to check whether this is permitted in the state of execution before documents are signed or witnessed electronically.
Yes! When you register a company with us we can set up the company in your CAS 360 software without you needing to rekey the information. Simply authorise us in App Connect in your account and select Push to CAS 360 when registering the company. Once the company is registered we will push the information to CAS 360 and send you an email link to the newly created company.
Note: At this stage we can only connect with one CAS 360 account per organisational login.
We also create a .CMY file of company information for all companies that we register. If you use the desktop version of CAS simply upload this file to the software to create the new company record in CAS.
Complete and submit details on the ABN Tab of our online company registration form. (You will be prompted to set up two-factor authentication (2FA) if you haven't already).
With the ABN application we can also register for any of the following:
- Tax File Number
- Goods and Services Tax
- Pay as You Go Withholding
- Fring Benefits Tax
- Fuel Tax Credits
- Luxury Car Tax
- Wine Equalisation Tax
All these registrations can be applied for in the one company registration form, meaning you don't need to visit any other websites after the company is registered with ASIC.
Before we can register a company in accordance with the Corporations Act 2001, we require signatures from the directors, to show they consent to act, and from the members/shareholders, to show they agree to be bound by the constitution of the company (or an acknowledgment that these people have otherwise provided these consents).
We still provide clean consent forms with the company register, that basically look a little nicer than, say, a thrice-faxed consent signature!
Not much - basically, older companies will have a memorandum and articles of association, and newer companies (basically those registered since 1 July 1998) will have a constitution.
The memorandum and articles of association of a company mostly contained what is now contained in a constitution, although there are fewer restrictions on what must be contained in a constitution (for example, a constitution does not need to set out the objects of the company, and does not need to provide a limit on the number of shares the company can issue (or "authorised capital")).
Both sets of documents basically provide for the terms of the relationship between the directors, the members (shareholders), and the company.
If your memorandum and articles of association or company constitution is old or has been lost, you can order an adopt a new constitution online.
It should be noted that they do not apply to a proprietary company while the same person is both its sole director and sole shareholder (refer S.135(1) of the Corporations Act 2001). See S.198E, S.201F and S.202C for the special provisions that apply to a proprietary company while the same person is both its sole director and sole shareholder.
We set up companies with hundreds of thousands of shares, and some with only 1 ordinary share. You should remember that most ordinary shares of private companies are $1 shares, meaning that the shareholder is expected to pay the company $1 for every share issued to them.
You can - simply indicate the share classes in the online instruction sheet. You can select any of our Suggested share class rights (e.g. Class AA, Class BB etc.), that are defined in schedule 1 of our constitution.
Otherwise, you can select Custom Shares (e.g. Class A, Class B, etc.), with the option to provide your own special rights or copy the rights from our suggested classes. If you tell us any special rights that are to attach to the shares, we can put this in the initial directors' resolution. Otherwise, the shares will be issued with the classes stated, but unless the directors otherwise resolve, the shares will have the same rights as ordinary shares (i.e., a right to vote, a right to dividends, and a right to capital on winding up of the company).
Unfortunately, there is no such thing as "standard" rights attaching to different classes of shares. Therefore, an "A" class share for one company may have entirely different rights to that of an "A" class share in another company.
Under subclause 4(b) of our constitution, the directors of the company can issue shares "to such persons on such terms and at such times and with such preferred, deferred or other special rights, whether with regard to dividend, voting, return of capital or otherwise, as the Directors think fit".
The directors give effect to this (i.e., giving shares special rights) by setting out those rights in the directors' resolution authorising the issue of the shares.
Subclause 8(c) allows shares to be issued with the rights suggested in Schedule 1:
"Without limiting in any way the classes of shares that the Company may issue or the rights that may attach to any classes of shares or the variation of such classes or rights, the Company may issue new shares, or (subject to this clause) vary existing shares, of a designated class and with rights attaching to that class as suggested in Schedule 1 to this Constitution".
However, many of our members want to use their own class system when issuing shares, rather than using the classes and rights suggested in Schedule 1.
Therefore, if members want to use the suggested classes in Schedule 1, they can simply order a company with shares designated with those particular class "names" (eg, "AA", "BB", etc). Note that, originally, the constitution did not have any "suggested" classes, but this was later incorporated on the request of some members, and we now use "AA", "BB" etc, as these are less likely to cause confusion and/or conflict with orders from members who wish to use their own class system, without knowing of the rights attaching to the suggested classes.
If they designate the shares with something other than those used in Schedule 1, then the directors of the company will need to specify what special rights, if any, attach to those classes of shares. Where we are instructed what special rights attach, this is incorporated into the first directors' resolution of the company. If not, unless the company has otherwise documented the rights that attach to the shares (we get so many orders separating shares into different classes, that it is clear that many members may have their own system), then the shares will simply have the rights attaching to ordinary shares. That is, the shares will carry a right to vote, a right to dividends declared for those shares, and a right to a proportionate share of capital on winding up of the company.
If this was not the intention, then the directors may be able to recognise or affirm, by resolution, that the original issue of shares was meant to carry certain rights, though legal advice may need to be sought on the efficacy of this if there is nothing else documenting this intention.
Otherwise a special resolution of the company can change the rights attaching to shares (refer, eg, subclause 8(a)), though, again, legal advice may need to be sought on the consequent effects of this.
We do not warrant that our constitution is suitable for any particular purpose - persons ordering a company (normally accountants) need to satisfy themselves that the company is suitable for their clients. It is a standard constitution, which may not be appropriate for all purposes (in particular, it may not be suitable for some professions which have special requirements - persons in such professions should consult with their respective professional association). We are also unable to make anything more than very minor changes to our constitution, and we require precise wording when doing so.
Where an error has been made on setting up a company (i.e., on the Form 201 lodged with ASIC), this can sometimes be fixed by lodging a Form 492 setting out the error, and sometimes proving to ASIC the reason for the mistake (e.g., a photocopy of the original instructions setting out the correct information). The Form 492 makes the changes as at the date of registration of the company.
If you would like the documents to be updated to reflect the correction, please email a copy of the form 492 (before you send it to ASIC) to info@docscentre.com.au and we will update the register documents.
*Note: If ASIC will not correct their records with a form 492, it may be necessary to lodge a Form 484, which advises ASIC of changes to the company after it has been set up. These changes are made as at the date of the relevant change and the form 484 should be filed under ASIC Correspondence in the company register. If a change is lodged using a form 484, we will not update the company register documents.
Where an individual has reserved a name and then wants to set up a company with that name, they must write a letter to ASIC asking them to "un-reserve" that name (including the reference number originally given to them by ASIC). Only the person who originally applied for a company name reservation with ASIC has the power to un-reserve that name.
When placing an order online with a reserved name the website will prompt you to complete a Letter of Cancellation of Reservation which then needs to be forwarded to us to be provided to ASIC along with the company application.
If you asked us to reserve the name, the process is much easier. We apply for company reservations electronically and therefore can also un-reserve and register a company name simultaneously, electronically to ASIC. This saves time for both parties and restricts your company name from ever becoming available for other people to take!
A company name is available unless it is identical to a name that is currently reserved or registered under the Corporations Act 2001 for another body, or is identical to a name that is included on the national business names register in respect of another individual or body who is not the person applying to have the name, or is unacceptable for registration under the Regulations.
You can check the availability of a company name on ASIC's name availability check - enter the company name you would like to register and hit the search button. Names that are shown as identical are unavailable, however if it only shows as similar it will usually be accepted.
If the name is available, enter this as your proposed name in the online application (where you can also check availability). There's also the option to provide an alternate name in the event the first preference isn't accepted by ASIC.
Note: This process only lets you know if the name is available on ASIC's registers. It does not guarantee that the name is legally "safe". For example, the name "Nike Shoes Pty Ltd" might be available, but Nike might have a problem with you running a business through this company.
If your proposed company name is identical to a registered business name(s), ASIC must be satisfied that the proposed company is entitled to the use of the name under s147. The online order form will ask you to provide the ABN of the business name holder (or the BN in older registrations), which we then provide to ASIC.
It is important to note that the business name holder must be involved in the new company registration according to the following ASIC rules:
| Where the business name holder is.. | The name is only available to the proposed company if... |
|---|---|
| An individual | That individual is a proposed company director or member |
| A company | That same company is a proposed member |
| A partnership or joint venture | Each of the partners is a proposed company director or member |
| A trust | Each of the trustee is a proposed company director or member, and you have provided ASIC with a copy of trust deed |
Where the business is owned by a trust for which the directors/shareholders are trustee, please email a signed copy of the trust deed to info@ntaacorporate.com.au when submitting your online order so that we may provide to ASIC.
All Australian companies need at least one Australian resident director, and if there is a secretary, at least one secretary needs to be an Australian resident, as well. Shareholders can be non-residents, but there may be tax implications for this (you will need to consult a specialist regarding these, if any). The registered office and principal place of business also need to be in Australia, although this can be changed relatively painlessly at any later time (we provide a service of notifying ASIC of changes such as these, and preparing certain related documents, here).
There are some extra costs, but it is relatively straightforward. We provide a service of notifying ASIC of changes such as these (in this case, a change to the registered office and/or principal place of business of the company), and preparing certain related documents, here.
A company's address for its registered office, or place of business, must be in Australia. Refer Regulation 1.0.14 of the Corporations Regulations 2001:
1.0.14 Address of registered office or place of business
If notice must be given under these Regulations of:
(a) the address of an office or a proposed office; or
(b) the address of a place of business;
of a corporation or a person, the notice must include:
(c) if applicable, the number of the room in which; and
(d) if applicable, the number of the floor or level on which; and
(e) the place in Australia in which;
the office or place of business is, or is to be, situated.
Officeholders' addresses must be their usual current residential address. An alternative address may only be used where the Commission approves an application under S.205D of the Corporations Act 2001.
No. At least ONE director has to be resident in Australia. Refer S.201A of the Corporations Act 2001.
Also, a company is not required to have a secretary, but it if it does, then that secretary (or at least one of them if there is more than one secretary) must ordinarily be a resident of Australia. Refer S.204A.
A record of any meetings held by that method should then be kept as minutes of the meeting, as well as setting out how the meeting was conducted and who participated.
However, we can tell you that S.201A of the Corporations Act 2001 provides as follows:
"Minimum number of directors
Proprietary companies
- A proprietary company must have at least 1 director. That director must ordinarily reside in Australia.
The definition does not appear to have any relation to the tax definition of a "resident" - the question is simply one of whether the person is "ordinarily resident" in Australia - this will be a question of fact.
We are not sure whether ASIC makes any inquiries beyond the information provided to them in the Form 201, and it is possible they may be satisfied if the director's address is an Australian address. However, for the purpose of lodging an application to register a company under S.117 of the Corporations Act 2001, S.205D provides that an officeholder's address must generally be their usual residential address.
Of course, this just sets out the requirements for including an address on an application form, and does not change the requirements of S.201A.
If you are concerned about whether or not the company will meet these requirements, you may want to consider appointing an additional director who is definitely a resident of Australia.
The requirement to have a public officer is not found in the Corporations Act 2001 - it is a requirement of the tax law. S.252 of the Income Tax Assessment Act 1936 (ITAA 1936) requires every company carrying on business in Australia, or deriving in Australia income from property to be represented for the purposes of the tax law "by a public officer duly appointed by the company or by its duly authorised agent or attorney".
For example, the ITAA 1936 states that the public officer "shall be answerable for the doing of all such things as are required to be done by the company under this Act or the regulations, and in case of default shall be liable to the same penalties."
In addition, "(e)verything done by the public officer which he is required to do in his representative capacity shall be deemed to have been done by the company."
The ATO can also serve documents on, or give notices to, the public officer, and this will be taken to be sufficient service upon the company.
The public officer is also answerable for other tax-related actions of the company, such as record keeping and submitting company tax returns.
If the instruction sheet tells us who the public officer will be, we will ensure that this appointment is recorded in the first directors' resolution.
However, the company still needs to inform the ATO of the identity of its public officer within 3 months of commencing business or deriving income in Australia (we do not notify the ATO about the public officer unless you register the company's ABN with us). You can normally do this when the company submits its ABN/TFN registration.
Note that, if the company is not intending to apply for an ABN or TFN it will still need to notify the Commissioner of the identity of its public officer, unless the company will not be carrying on business in Australia, or deriving income from property (for example, interest, rent or dividends) in Australia. Please contact the ATO for how best to do this.
The corporate key is an 8-digit number uniquely associated with a company's ACN. In many respects it is similar to the PIN on a bank account and is used to keep your company information secure. Every company needs only one corporate key.
Once you have a corporate key you can register to view your company records and lodge documents for your company online. Once you have online access you will no longer need to use your corporate key to lodge online.
The corporate key is sent by ASIC to the registered office within a day or two of registration.
If your corporate key has been lost, you can apply for a new one with ASIC.
S.248A of the Corporations Act 2001 allows companies with more than one director to pass a resolution without a directors' meeting being held if all the directors entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document (also called "circulating resolutions").
S.248B also effectively requires resolutions of sole director companies to be made by written resolution (since it would be a bit weird to require a sole director to make decisions about the company in a meeting with him (or her) self).
Since the requirements for holding a meeting (such as sending out notice of the meeting) and for proving the meeting took place are more difficult than simply having all of the directors sign the resolution, all of our resolutions are simply written resolutions, required to be signed by all of the directors (instead of "Minutes of a meeting"). Note that, if your company still wants to hold directors' meetings (e.g., if one of the directors refuses to sign the resolution), the company can still hold a meeting and set out any resolutions made in that meeting in minutes of the meeting.
S.127 of the Corporations Act 2001 (in particular S.127(1) and (2)) sets out some of the ways that a company can execute documents (including deeds), including by having the document signed by two directors of the company, or by a director and a company secretary of the company (with or without using a common seal). However, S.127(4) states that "This section does not limit the ways in which a company may execute a document (including a deed)."
In response to requests from members, under our constitution (clauses 107(c) or 108(c), depending on whether the company uses a common seal), the directors are able to nominate a particular director to sign documents on behalf of the company. This nomination should ideally be set out in a written directors' resolution.
It should be noted that where documents are not signed in accordance with S.127(1) or (2), people dealing with the company may not be able to rely on the assumptions set out in S.129(5) and (6) (i.e., they cannot assume that the director has been duly appointed and authorised to act as a director).
We cannot do this for you, but it appears this can be done under S.256C of the Corporations Act 2001. If some people's shares are getting cancelled and not others, this may be more problematic (although it may simply require a special resolution). Refer also to S.256B.
We only provide these details to give you a head start, and it may be worthwhile calling ASIC. There may also be both CGT and stamp duty issues to consider.
A company cannot simply be converted to a unit trust. A unit trust would need to be set up and the company's assets transferred to it.
We can set up a new unit trust, but as to the effects of this (i.e., transferring all of the assets of the company to the unit trust, for example) and whether this is even a good idea (taking CGT, stamp duty, etc, into account) we can't help with.
Therefore, we can set up the unit trust, but what you do with the trust once it's set up is up to you. You may want to log a Call with the NTAA Tax Team if you want to talk to someone about the tax effects of this restructure (freecall 1800 808 105).
We can assist with the notification to ASIC, and also prepare a directors' resolution, noting the transfer (we provide this service for a fee, and a 'Company Changes' instruction sheet will need to be completed and sent to us). However, we do not prepare any of the other documentation, so if the parties do not prepare them themselves, they may need to seek legal advice.
This includes where the company acts as trustee of a trust.
If the constitution doesn't provide for what happens in these situations, S.201H(1) of the Corporations Act 2001 (a replaceable rule) provides as follows:
"S.201(H) Appointment by other directors
- The directors of a company may appoint a person as a director. A person can be appointed as a director in order to make up a quorum for a directors' meeting even if the total number of directors of the company is not enough to make up that quorum."
Such an appointment needs to be ratified by the shareholders.
However, the replaceable rules of the Corporations Act 2001 only apply to proprietary companies registered after 1 July 1998 (or those registered before 1 July 1998 that repeal their constitution after that day), and only where the company's constitution hasn't displaced or modified the replaceable rules.
If, at the end of the day, the company does not appoint another director to replace the one who has passed on, and it can't rely on the replaceable rules and doesn't have anything else available, the board of directors will not be able to meet and make any decisions (whether for itself or for the trust), as it can't make quorum. However, the shareholders will still be able to make decisions for the company (whether at a general meeting or by written resolution).
Also, ASIC will need to be notified of the changes within 28 days of them occurring.
Note: S.201F(1) also provides that "The director of a proprietary company who is its only director and only shareholder may appoint another director by recording the appointment and signing the record."
Company-related services we provide (other than to Register a Company) are:
- Shareholders Agreement
- notifying ASIC of some Changes to the Company that need to be notified
- Change of Company Name
- Reserve a Company Name
- Company Deregistration
- Adoption of Constitution which allows for a sole director and special purpose
Absolutely, we can organise to reserve a company name for up to two months. For more information, please see here.
No, this has not been a requirement since section 271 of the Corporations Act was repealed in January 2012 (with the commencement of the Personal Property Securities Register); however, companies are still required to maintain a register of charge details up to that point in time.
A company must have a registered office within Australia. This is where all communications and notices from ASIC (including the corporate key) will be sent.
The company seal will arrive 2-3 days (mail depending) by Australia Post. It will be sent to the delivery address you provided. Please contact us if your seal still hasn't arrived after this time.
Within two days of the company being registed a letter with your corporate key will be sent directly from ASIC to your registered office.
If your corporate key has been lost, you can apply for a new one with ASIC.
The minumum price per share is $0.01
The maximum number of shares you can register in a company online is 9,999,999
The maximum price per share is $9,999,999.99
Any person or a legal entity can own shares in a Pty Ltd company. If the owner of the shares is entitled to the direct benefit from the shares, the shares are beneficially held. If the shares of the company are owned for the benefit of someone else, then the shares are not beneficially held.
A beneficial owner is a person who enjoys the benefit of ownership even though the title of the asset is in the name of another person/entity.
If the beneficial owner of shares is a trust, the shares will be held non-beneficially by the trustee(s) of the trust.
Preference shares, also known as preferred shares, have the advantage of a higher priority claim to the assets of a corporation in case of insolvency and receive a fixed dividend distribution. These shares often do not have voting rights and can generally be converted into ordinary shares.
In the event of bankruptcy or liquidation, preference shares are paid according to their par value only after payments are made to outstanding debt holders. Preference shareholders receive payment prior to ordinary shareholders.
In contrast, ordinary shares have a lower priority for company assets (in the event of liquidation) and only receive dividends at the discretion of the company (ie. where dividends are declared). However, ordinary shareholders have a right to vote and are generally entitled to one vote per share.
Fully paid shares are shares issued for which no more money is required to be paid to the company by shareholders on the value of the shares. When a company issues shares upon incorporation or through an initial or secondary issuance, shareholders are required to pay a set amount for those shares. Once the company has received the full amount from shareholders, the shares become fully paid shares.
In contrast, with unpaid shares none of the value of the shares is paid into a nominal account at the point the shares are issued, although the shareholder retains the liability to pay at a later date. Shares can also be partly paid, where part of the value is paid up front but with an amount remaining unpaid until a later point in time.
Ordinary shares have a right to vote, a right to dividends, and a right to capital on winding up of the company.
(The rights for ordinary shares are not set out in the company constitution, nor do they need to be.)
ASIC has no age requirement for shareholders.
However, any document signed by a child under 18 years of age may not stand up to scrutiny. Many choose for a parent/guardian to hold the shares non-beneficially on behalf of the child, who would be the beneficial owner.
Yes! When you register a company with us we can set up the company in your CAS 360 software without you needing to rekey the information. Simply authorise us in App Connect in your account and select Push to CAS 360 when registering the company. Once the company is registered we will push the information to CAS 360 and send you an email link to the newly created company.
(Note: At this stage we can only connect with one CAS 360 account per organisational login.)
We also create a .CMY file of company information for all companies that we register. If you use the desktop version of CAS, simply upload this file to the software to create the new company record in CAS.
Yes, a company that has been deregistered can be reinstated in certain circumstances. If approved by ASIC, reinstatement will restore a company's registration as if it had never been deregistered.
For more information and to apply to ASIC for reinstatement (if you meet the criteria), please visit ASIC's website, or email us at info@docscentre.com.au with any questions
Even though companies are registered Australia-wide, you must nominate the state or territory in which the company will be registered in.
As a very general guide, the state or territory of the head office, or where the company will mainly conduct business, may be appropriate.
The governing state can be changed in the future, but this can be costly, so it may be best to seek advice before registration if you are unsure. We are unable to advise on which state/territory to choose.
Yes, before we can register a company in accordance with the Corporations Act 2001, we require signatures from the directors, to show they consent to act, and from the members/shareholders, to show they agree to be bound by the constitution of the company (or an acknowledgment that these people have otherwise provided these consents).
We still provide clean consent forms with the company register.
To obtain consent from your clients before ordering the company registration online, you can use these sample consents:
Yes, please feel free to use this Consent to Act as an Officeholder and Consent to Act as a Member.
A company's ACN must be shown on company documents to ensure identification of the company when transacting business.
The ACN should appear on all of of the company’s 'public documents' and 'eligible negotiable instruments'. These include all documents that are lodged with ASIC, orders for goods and services, business letterheads, cheques, and written advertisements making a specific offer capable of being accepted.
The ACN should be clear, easily readable and obvious as to the company to which it relates.
Where the ACN is not required
There are certain items where the ACN is not required, including packages and labels (including envelopes), advertisements that don't make a specific offer capable of acceptance (such as advertisements that promote the company and its goods and services in general), credit cards and vouchers, cash-register receipts, business cards and 'with compliments' slips.
ASIC provides more information on their website.
S.153(1) of the Corporations Act 2001 provides that “A company must set out its name on all public documents and negotiable instruments.”
However, our view is that business cards are not “public documents” or negotiable instruments. ASIC states that “public documents” and “eligible negotiable instruments” include “all documents that are lodged with ASIC, orders for goods and services, business letterheads, cheques, and written advertisements making a specific offer capable of being accepted.” We note that the above does not include business cards (although it does include business letterheads).
Also, ASIC states that a company’s ACN is not required on business cards. This indicates to us that “Pty Ltd” also would not be required on business cards.
However, the above is only intended as preliminary advice, and we cannot confirm that “Pty Ltd” does not have to appear on business cards. Also note that penalties apply if a company’s full name and ACN is not set out when required – refer in particular to S.153(3) of the Corporations Act. It may be appropriate to obtain independent legal advice in this regard.
Company directors and secretaries are required to give ASIC details of their usual residential address on various forms and applications. Address details form part of ASIC's public database and will be available to the public. In certain circumstances, it is possible to apply to ASIC for approval to have your usual residential address suppressed on their public database and, in its place, to use an alternative address.
There is more information about suppressing an address on ASIC's website.
If your client has already been granted an address suppression and you now want to register a company for them, please list their approved alternative address in the form and provide Special Instructions to this effect (including the suppression code provided and email us the approval letter from ASIC).
Generally, the company secretary is responsible for the efficient administration of a company, particularly with regard to ensuring compliance with statutory and regulatory requirements and for ensuring that decisions of the board of directors are implemented.
In order for ASIC to register a company name that's identical to a business name, all of the holders of that business name need to be involved in the company as either director or shareholder. (In the instance that the business name is owned by a trust, all trustees must be director or shareholder in the proposed company and we need to provide ASIC with a copy of the trust deed).
You can either include the business name holders in the company as directors/shareholders OR change the holding of the business to be held by a director/shareholder of the company.
To change the holder of a business name, you must complete a business name transfer. You cannot change the holder of a business name by updating the holder details.
To complete a business name transfer through ASIC, you will need to:
- log in to your ASIC Connect account and make sure your business name is linked to the account.
- once you’re logged in, select the 'Lodgements & Notifications' tab at the top of the screen.
- then select the radio button next to the business name you wish to transfer and select 'Cancel/Transfer Business Name' to start the transaction.
Follow ASIC's step by step guide on their website.
You will receive a transfer number from ASIC; you will need to provide this to the new business name owner so they can register the business name.
If you need any help with this, please email us at info@docscentre.com.au
As a trust is not a legal entity it cannot hold shares directly; any shares owned by a trust will be held on its behalf by the trustee(s). The trust will be the beneficial owner of the shares.
You can't use words that could mislead people about a company's activities. As "Trust" and "Trustee" are restricted terms, you must seek additional approval before you can use them in a company name (there is a cost involved in this).
To apply for ministerial consent and for more information, visit ASIC's website here.
If you have already obtained ministerial consent, please advise in the special instructions of your online company registration order and send a copy of the approval letter to info@docscentre.com.au
Some words and phrases cannot be used without the approval of a government minister. Some examples include:
- 'building society'
- 'trust'
- 'university'
- 'chamber of commerce'
You can't use words that could mislead people about a company's activities. This includes implying any association with the Australian government, the Royal Family, or any ex-servicemen's organisations.
ASIC may also refuse a name if it's considered offensive, undesirable or likely to be offensive or suggests illegal activity.
Please contact us if you have questions about a name you wish to use or whether or not it is likely to be restricted or prohibited.
If you have already obtained consent to use a restricted term in a company name, please let us know in the special instructions section of your online company registration order and send a copy of the approval letter to info@docscentre.com.au
You can only use certain characters in a company's name. The following characters are accepted:
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$ |
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: |
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A-Z |
% |
. |
; |
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a-z |
* |
, |
" " |
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@ |
& |
? |
' |
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# |
= |
! |
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Accents/accented letter such as é, è, â, î, ô, ñ, ü, ï, ç cannot be used.
Yes. Even if ASIC accepts and registers a company with the name you have chosen, that is not a guarantee that the name will not infringe a registered trademark or will not be immune from a passing-off claim by another entity. Registration of the name only means that the name has been accepted by ASIC for registration in accordance with the Corporations Act 2001.
It is your responsibility to be aware of any similar names or trade marks that may affect your name. Visit the IP Australia website to search for existing trademarks.
You should seek legal advice if you are in doubt about the use of the name you have chosen.
Under the Corporations Act a special resolution is one that is passed by shareholders having a right to vote who collectively hold at least 75% of the total number of votes that can be cast.
A company's constitution can require a higher proportion of required votes.
A Director Identification Number (DIN) is a unique 15-digit code allocated to an individual who is or proposes to become a director of a company. The DIN is intended to prevent the use of false or fraudulent director identities.
Each person's DIN is retained for life and only one DIN is needed. A person does not need to apply for another one if they become a director of more than one other company.
Each person must apply for their own DIN to verify their identity. No one can apply on another person's behalf.
Anyone who is already a director, or intending to become a director, needs apply for a DIN. It is a criminal offence to be or be appointed as a director without a DIN.
Applications for a DIN are made online.
Each person must apply for their own DIN to verify their identity. No one can apply on another person's behalf.
If you provide all of the required information and it matches the ATO's records, in most case you'll receive your ABN on the same day. If any identities cannot be confirmed due to inaccurate or missing information, the ATO will review the application and may contact you for more information (this can take up to 20 business days).
Your application will have a higher chance of registering if you provide TFN's for officeholders and shareholders, so please do!
Unfortunately, no. Once an ABN has been issued, only the authorised persons listed on the application can make changes on behalf of that ABN.
The ABR website provides information on how to update ABN details.
Unfortunately, no. Only the authorised persons listed on the application can make changes on behalf of that ABN.
The ABR website provides information on how to update ABN details. Alternatively, the authorised representatives can update details by contacting the ATO on 13 28 66 between 8am and 6pm, Monday to Friday.
Where an ABN application is refused, we’re not provided with much information to go on, but will try to work through it with you where we can. If we’re unable to resolve the issue in consultation with you (double checking DOB, spelling etc. of the associates) we will provide you with the reference numbers and refusal information to follow up with the ATO (as is the usual process when applying directly on ABR).
You'll also receive a letter from the Australian Business Register within 14 days confirming that your application has been refused, the reasons for the refusal and the options available to you, which include your review rights.
We are now able to register ABNs for companies and Trust. ABNs for SMSFs will be coming soon!
In the meantime you’ll still need to register directly on the ABR.
Complete and submit details on the ABN Tab of our online company registration form. (You will be prompted to set up two-factor authentication (2FA) if you haven't already).
With the ABN application we can also register for any of the following:
- Tax File Number
- Goods and Services Tax
- Pay as You Go Withholding
- Fring Benefits Tax
- Fuel Tax Credits
- Luxury Car Tax
- Wine Equalisation Tax
All these registrations can be applied for in the one company registration form, meaning you don't need to visit any other websites after the company is registered with ASIC.
Not everyone is entitled to an ABN. Read some information about ABN entitlement on the Australian Business Register's website here.
ABNs are not compulsory. There are, however, many benefits to having one. For example, an ABN will help you:
- in dealing with other businesses when purchasing goods and services or when supplying goods or services to them; or when
- in dealing with the ATO and other government agencies.
If you are going to register for GST, you will need an ABN.
If you are not sure whether to apply for an ABN for your trust, this ATO video may help. Otherwise, you should seek professional advice.
The Settlor is the person who "settles" or creates a trust, by providing the settled sum to the Trustee. The settled sum is the initial trust property.
When selecting the settlor, the best practice is to have an unrelated person act in that role e.g. a close, though unrelated, family friend.
We do not accept relatives of the beneficiaries or trustees as Settlors.
What happens when an appointor passes away generally depends on the instructions of the person setting up the trust.
However, in general:
- If there is only one appointor, unless their will says otherwise, the powers of appointment will pass to their legal personal representatives (LPRs);
- If there are two or more joint appointors, as each one dies, the powers of appointment will pass to the remaining joint appointors until there is only one left, and then the powers will pass to that person's LPRs;
- If any of the appointors are considered "independent" (eg, an accountant or solicitor), then that person will never get the sole power of appointment (i.e., once there is only one family member appointor and the independent left, the powers of appointment will pass to the family member's LPRs on their death). However, we require specific instructions in this regard so that this can be specified in the schedule to the deed; and
- The appointors may choose not to be joint (in the context of survivorship), meaning that on their death, their own power of appointment will pass to their own LPRs, rather than to any surviving joint appointors. Where a husband and wife are to be joint appointors, the deed is set up as per 2. above.
It should also be noted that subclause 18.3 of the deed allows for additional/replacement appointors to be appointed while the appointors are still living:
"Subject to the restrictions (if any) specified in item 9 of the Schedule, an Appointor shall have the power, exercisable jointly with any other Appointor, from time to time by deed or will to appoint another person to act as the Appointor either jointly with the existing Appointor or to act as sole Appointor and to provide for the method of succeeding Appointors to be appointed and if such a person or persons accept the appointment they shall exercise the powers of the Appointor in accordance with the terms of the appointment notwithstanding what is specified in the Schedule about who shall be the initial Appointor of the Trust."
Also, under subclause 18.6, "If at any time or from time to time there is no Appointor remaining or otherwise appointed, the Trustee for the time being may assume the powers of the Appointor."
Finally, an appointor may be automatically removed if they become bankrupt or mentally ill, or if the appointor "is acting in the capacity of, or on behalf of, a trustee in bankruptcy, liquidator or administrator, or the Family Court Registrar", but they can resume their position if the condition that caused the Appointor to be removed ends, is reversed or otherwise ceases.
Yes - our deed already covers this. The Appointors are required to act jointly if there is more than one. A dispute resolution mechanism is provided in case they are deadlocked and cannot reach agreement.
If you want additional restrictions on the Appointors, we can add them to the Schedule.
However, even if they could do this (and it is unsure whether they could), an appointor is still expected to exercise their powers in accordance with their fiduciary duties (i.e., in the interests of all the beneficiaries).
At the end of the day, this is a technical legal issue that would require specific legal advice. Nonetheless, under our current deed, "the office of an Appointor will be vacated if that Appointor:
(a) becomes bankrupt or otherwise seeks relief under the laws pertaining to bankruptcy; or
(b) that Appointor is acting in the capacity of, or on behalf of, a trustee in bankruptcy, liquidator or administrator, or the Family Court Registrar"
This is designed to make the trust safer in case an appointor does get sued.
Also, having an independent appointor (such as a trusted family accountant or solicitor) can make the trust safer, too, since the deed requires that the decisions regarding appointment be made jointly (i.e., unanimously).
In fact, the deed specifically states that the trustee can benefit from the trust and exercise powers in its own favour. However, the settlor is specifically excluded.
Of course, we are reliant on the courts in establishing what trusts can and can't do. In a recent case in the Victorian Supreme Court (Ailseen Pty Ltd v One Hawker Holdings Pty Ltd & Anor [2006] VSC 135), not only was the trustee also a beneficiary of the trust, but the settlor didn't provide the settled sum and his signature was forged and the trust was still valid!
That said, we do not advise this course of action.
It is possible, and we can include this in the deed if you like. (for an additional fee)
It's also important to note that, although a person may be included as a "beneficiary" of a discretionary trust, they cannot actually benefit from the trust unless the trustee actively exercises its discretion to make a distribution to that beneficiary. Until such a point, all "beneficiaries" are more appropriately called "potential beneficiaries", or mere "objects", of the trust.
However, since it can be difficult to add beneficiaries to a trust after it has been set up, it is generally better to have the class of potential beneficiaries as broad as possible. Therefore, it shouldn't be a problem if an ex-spouse is included in the class of general beneficiaries unless there is a chance that he or she could become a trustee or appointor of the trust.
The trustee of a discretionary trust generally has complete discretion each income year when determining which of the objects of the trust (commonly called the "beneficiaries") will benefit from the income of the trust. The Beneficiaries clause of our trust deed is very broad and includes most, if not all members of a family, including great, great, great, great grandchildren (and even further) as well as companies and trusts the beneficiaries are involved with, various charities, and more.
As an example, in one year, the trustee could resolve that each of the children under 18 receive $1,666, Dad receive $20,000, and Mum the remainder. The following year, Dad could receive $50,000, an uncle $10,000, and a related company receive the remainder. The next year, all Dad's living relatives could receive, say, 5% of the trust's income. Provided the trustee meets its duties under the trust arrangement, the distributions are entirely up to him/her/them.
Please note that distributions are generally relevant for tax purposes (i.e., they determine who pays tax on the income), and that they do not necessarily depend on cash moving between the relevant parties.
The trustee also generally has equal discretion regarding distributions of capital, whether during the life of the trust, or when the trust eventually vests (i.e., when it effectively "winds up" and comes to an end).
Please note that trusts and trust law can be quite complex, and there are many more issues involved than those set out above. In addition, how the trust can be run can very much depend upon the terms of the individual trust deed. Therefore, we recommend that you obtain professional independent advice before ordering and operating a discretionary trust.
Yes. The deed specifically provides a number of ways that the trustee can apply distributions on behalf of a beneficiary. This includes "paying the income or capital to a parent or guardian of the Beneficiary or any other person where the income or capital will be applied for the benefit of the Beneficiary, if that Beneficiary is a minor or is otherwise under a legal disability".
The trust effectively has a maximum life of 80 years. This is because most States and Territories require trusts to vest (or wind up) after a maximum of 80 years. This is called the rule against perpetuities, and basically exists so that a person cannot tie up assets forever in a trust.
The rule against perpetuities was abrogated in South Australia and in that State any beneficiary can apply to have the trust wound up after 80 years, but every other State has retained the rule.
Our deed does require the trust to vest within or at the end of 80 years (the trustee has discretion to vest it earlier than 80 years).
The trustee is not prevented from using trust assets for paying debts incurred as trustee - in fact, the exact opposite is provided for. That is, the trustee is explicitly authorised to use the trust assets to pay the debts of the trust.
The trustee cannot use the trust assets to pay personal debts - to do so would breach the trustee's fiduciary obligations.
What type of trusts qualify?
The transferee may be a trustee of a fixed trust which limits the beneficiaries to relatives of the transferor or charitable institutions. Alternatively, the transferee may be a trustee of a discretionary trust which only allows capital distributions of the primary production land (including any part of the primary production land) to be made to a relative of the transferor or a charitable institution.
The trust deed cannot contain a variation clause that would permit the distribution of the family farm (or any part of it) to parties other than relatives or charitable institutions."
The wording does periodically change. You must be very careful that by taking this course of action you are not inadvertently backdating the trust. It is, of course, illegal to backdate such documents, and backdating is not effective in any case.
This is because a trust comes into existence when there is (a) a trustee, (b) beneficiaries, and (c) trust property, whether or not there was a signed trust deed as at that date. Simply backdating a document does not satisfy these requirements if it cannot be proven that they were in existence as at the correct date.
We do not date deeds (the clients fill in the date on the date of execution), but we also only provide our most current deeds - i.e., we do not provide our earlier deeds.
If you want anything other than our most current deed, you should seek legal advice from a solicitor who can tailor a deed to your specific circumstances, taking into account the above considerations.
We stopped providing restricted discretionary trusts from the 1st October 2004.
This product was designed to get around some of the problems with discretionary trusts being able to access the small business CGT concessions (due to an anomaly in the tax legislation which meant they were not ever able to satisfy the maximum net asset value test). Basically, it restricted the distributions that could be made to any one beneficiary of the trust to less than 40% of the income and capital of the trust (so that the assets of every single potential beneficiary were not considered assets of the trust for the purposes of the maximum net asset value test).
However, an amendment was made in 2004 to the control test in Division 152 of the ITAA 1997 (refer Tax Laws Amendment (2004 Measures No.1) Act 2004), removing this anomaly and making it easier for discretionary trusts to satisfy the small business CGT concession requirements without needing to have this restriction in the deed (the control test for discretionary trusts now generally looks at actual distributions, rather than potential distributions). This effectively eliminated the need to have a restricted discretionary trust.
Yes we can provide Hybrid Trusts.
These types of trusts involve both fixed elements like a unit trust (and may even issue units), but also give the trustee an element of discretion in relation to the distribution of income and/or capital.
Although these types of trusts have their uses, they are often quite specific to the needs of the relevant individuals setting them up.
We can prepare a deed of vesting and supporting documents to wind up a trust. These documents will be prepared by our in-house legal team in accordance with the terms of the deed, so we ask that you upload an executed copy of the original deed to the online order form.
If the trustee is a company and it is also going to be wound up, this should not happen until after the trust has been vested, as the trustee will be a party to the Deed of Vesting.
To order a deed of vesting online, simply log into your account.
If we have recently established a trust for you, and you discover that you want something changed in the deed, we can generally make the change and update the documents for you in some circumstances. We can only do this if:
· The trust deed has not been signed.
· If already signed, the trust deed must not have been provided to third parties.
· The trust has not opened a bank account.
· The trust has not entered into any contract or arrangements with third parties.
· The trust deed has not been stamped.
A fee may apply, and changes must be made within 7 days after the initial completion of your order.
Any changes in other circumstances will require a deed of amendment. Please contact us at info@docscentre.com.au if this is the case and our team will send you the appropriate order form.
In general, only lawyers are able to draw up legal documents (and do other "legal" work) for a fee, under the Legal Practice Acts of the various States and Territories. Therefore, only a lawyer can be paid to prepare such documents.
However, a person is entitled to draw up their own documents for their own use, but it is important to ensure that, when non-lawyers draft legal documents, the documents are still legally effective.
The fact that a legal document is not drafted by a lawyer does not make it "illegal" as such, although a non-lawyer who does so, for a fee, can be subject to prosecution (for example, S.21 of the Legal Practitioners Act 1981 (SA) states that a person who does something that only a lawyer should do, for a fee, can be fined $10,000).
Leave the legal work to us. We operate an internal legal practice to minimise the risks to your firm. Our deeds and documents are regularly reviewed and updated by specialist tax, corporate and trust lawyers.
Changing the trustee normally requires a deed of variation. To do this, we need to see the existing trust deed, establish how a variation of the deed can be accomplished, and then, usually, prepare the deed of variation, often to be signed by the trustee (sometimes the appointor (or equivalent) also needs to consent in writing - we provide this, too). The deed of variation needs to be prepared on the basis of the client's deed - we cannot really use a "pro-forma" deed.
We offer this service using our standard writable PDF forms. This amendment will be prepared by our inhouse legal team in accordance with the terms of the deed.
The case, Richstar, was a Federal Court decision in Western Australia (regarding the ongoing saga of the Westpoint collapse). The court held that where:
- a defendant in the action was a beneficiary of a discretionary trust; and
- that beneficiary was the effective controller of the trust;
- then it was arguable that ASIC was able to appoint receivers over the assets of that discretionary trust
This is a substantial change from the accepted application of trust and property law. In fact, the judge acknowledged that, in the ordinary case, a beneficiary does not have an interest, not even a contingent interest, in the assets of the trust. However, he went on to hold that:
" where a discretionary trust is controlled by a trustee who is in truth the alter ego of a beneficiary, then at the very least a contingent interest may be identified because 'it is as good as certain' that the beneficiary will receive the benefits of distributions either of income or capital or both."
Examples where the beneficiary was an 'effective controller' included where:
- the beneficiary was the director and secretary of the trustee company, and the original appointor (with his wife being the current appointor);
- the beneficiary was current trustee and the current appointor was his wife; and
- the beneficiary was the appointor.
Nonetheless, it would be worthwhile to seriously consider which of the beneficiaries, if any, should also be trustees and/or appointors of the trust.
As a registered Duties Online organisation, we can process the duty in Victorian and New South Wales for deeds that we have established. (Please note that for NSW stamping, we need the executed deeds in hard copy to process the duty and unfortunately cannot accept a scanned copy.) For Victorian stamping, we encourage you to email us a scanned copy.
Read more about our optional stamping service for Discretionary, Unit and Child Mainentance Trust establishments.
We can prepare a trust deed amendment to make the following changes to an existing trust:
- Change the Trust Name
- Change the Trustee(s)
- Change the Appointor(s)
- Wind Up/Vest a Discretionary Trust
- Wind Up/Vest a Unit Trust
Our legal team will review your existing deed and prepare the amendment as a supplementary deed to be kept with the original trust deed. The deed and supporting documents will be prepared in accordance with the rules as set out in the original trust deed.
Where more than one of these changes is to be made, we provide bundled pricing. The price is $350 for the first amendment, $220 for each additional change requested.
In some rare cases an initial deed of amendment may be required to add the power to make the amendment. In these cases a further $350 applies to make that amendment to the deed to enable the change you want to make.
We no longer review deeds in light of the Bamford case regarding streaming of trust income. This article from 2013 explains why.
Yes, we do offer trust deeds that specifically exclude ‘foreigners’ (as defined in the respective States) from being General Beneficiaries of our discretionary trusts.
You can indicate this on your online trust form by answering the relevant questions regarding the intention to purchase property and exclude foreign persons.
A discretionary trust is created when a person known as the “settlor” gives the trustee money or property for the benefit of the beneficiaries. This “settled sum” is the original trust fund.
It is often a good idea for the trustee to open a bank account to deposit the settled sum shortly after the deed has been executed (if the trustee is a company set up by NTAA Corporate, the included directors’ resolution assumes this will be done) – this can provide further evidence regarding the date the trust was settled. Some trustees prefer to staple the settled sum to the deed, so as to ensure it is not eroded by bank fees, but this can also be dangerous if the original deed is lost (meaning the settled sum is completely lost). However, if a corporate trustee would prefer to take this alternative option, they should amend the directors’ resolution accordingly.
Yes, we have specific deeds for the existing affected States for concerned members, and as legislation is passed for other States we will develop further products.
To establish a trust with the deed excluding foreign beneficiaries, simply indicate this option on the online form.
Yes, if the existing trust was set up with us, we can prepare a deed of variation to exclude foreign beneficiaries from the class of General Beneficiaries.
These documents are to address new laws in various States which impose a stamp duty surcharge and, in some cases a land tax surcharge, on certain foreign purchasers of residential land in that State. These laws may extend to discretionary trusts. Specifically, if any of the beneficiaries under the trust are ‘foreign’ (as defined by the relevant State Act), the trust could be deemed to be a ‘foreign trust’ (and, therefore, possibly subject to stamp duty and/or land tax surcharges).
We do this on the basis that your Trust has a standard Docscentre Trust Deed. In particular, clause 10.1 of our standard deed allows the Trustee, with the consent of the Appointor, to exclude a person from the class of General Beneficiaries under the Trust, and the documents rely on the exercise of these powers (note that it is not possible to exclude a Primary Beneficiary from being a beneficiary under this power, so if a Primary Beneficiary of the trust is a ‘foreigner’, the trust may still be considered a ‘foreign trust’).
If your trust deed is not a standard Docscentre Trust Deed, this variation will not be suitable for your Trust, and we recommend you seek independent legal advice for the preparation of resolutions specific to your trust deed.
If you would like us to prepare the documents, please email us at info@docscentre.com.au
Yes, we provide this service. Please send us an email to info@docscntre.com.au or call us on 1800 799 666 for more information.
We are able to stamp most deeds that are a little late, however if they are extremely late then we may not be able to assess online.
There may be interest to pay based on the time between signing the trust deeds and them being assessed for duty.
It's up the the relevant state revenue office to determine whether there will be penalties or interest to be paid for late assessments, and we are unable to calculate this until we attempt to process the duty online. As a guide, the VIC and NSW SRO will often waive penalty interest under $20 for deeds that are a few months late, but not if they are years late.
To avoid late interest fees from the SRO trust deeds should be stamped in Victoria within 30 days of signing and within 3 months of signing in New South Wales.
See more information about our trust stamping service.
It is generally preferable to have separate trustees for the following reasons:
- it avoids the need to prove which assets belong to which trust. If two trusts have the same trustee and one gets into financial difficulty, it could be extremely costly for the trustee to prove which assets are beneficially owned under which trust; and
- there is a risk that a creditor could get access to the assets of all trusts for which the trustee acts, i.e., creditors of one trust may access assets of the others.
Yes, we have deeds available that will exclude foreign persons that might otherwise be beneficiaries for this purpose. (There is a question relating to this on the online trust form so please complete this when ordering the trust establishment online.)
Note that, in relation to the ‘regular’ discretionary trust deed, all such persons are excluded from being beneficiaries at all, despite the fact that the Tasmanian legislation only looks at a foreign person’s ability to benefit from the “capital of the trust estate”.
However, because both the pedigree and the child maintenance trust separately define “capital beneficiaries”, for these Tasmanian deeds, we have only excluded foreign persons from being capital beneficiaries (and note further that, in relation to the child maintenance deed, this is probably unnecessary, since the children (and their LPRs) are the only capital beneficiaries under those deeds, anyway).
There is no legal requirement that the settlor be an Australian resident. A trust will be a resident Australian trust provided that the trustees of the trust reside in Australia, even if the settlor resides overseas.
However, it may be best that the settlor be a person who resides in Australia, for the following reasons:
- The laws of a foreign country may possibly provide that a trust will be subject to the laws (including tax, stamp duty, etc) of that foreign country if the settlor of that trust resides in that country. We cannot advise in relation to the laws of foreign countries; and
- Our view is that a trust is more likely to be held to be a “valid” trust if the settlor is an Australian resident. If the settlor is an overseas resident, the trust may be more likely to be challenged, e.g., by a third party in court.
In any case that the settlor’s role is to “settle” the trust by paying the settlement sum (of say, $10), and signing the trust deed. The settlor has no other involvement with the trust.
This means the persons listed, their children and their children's children - and so on.
If you would like us to remove "and their children and remoter issue" from the primary beneficiaries section of the schedule, please provide special instructions to this effect when ordering.
A discretionary trust can be categorised by its income earning activities:
Trading - where the main source of income is from trading activites
Investment - where the main source of income is from investment activities and includes charitable trusts (established solely for charitable purposes)
Services management - where the main source of income is from service and/or management activities
The appointors (or appointor) of a trust have the real power and control of the assets of a trust, since the appointors have the power to appoint and remove trustees. In most cases, the original appointors include the one or more of the parties for whose benefit the trust is established.
While we are able to assist in removing an appointor and other changes to trusts via a trust deed amendment, we are unfortunately unable to remove beneficiaries of an existing trust due to the risk of resettling the trust.
When a "resettlement" occurs, the old trust is considered to come to an end and a new one begins. This generally happens where the trustee undertakes to do something (a new "trust") not considered when the trust was first established by the original settlor - therefore, the trust has been "resettled".
Effectively, the old trust disposes of all of its assets to the new trust, giving rise to CGT and stamp duty issues.
We would recommend seeking independent legal advice in this situation.
Unfortunately, we’re unable to replace or modernise trust deeds of existing trusts (except for superannuation funds), as this is highly likely to resettle the trust.
It is commonly accepted that small changes to a trust deed, such as the addition of a trust power, will not resettle the trust, but that a change to the beneficiaries, and especially the adoption of an entirely new deed, can resettle the trust.
When a "resettlement" occurs, the old trust is considered to come to an end and a new one begins. This generally happens where the trustee undertakes to do something (a new "trust") not considered when the trust was first established by the original settlor - therefore, the trust has been "resettled". Effectively, the old trust disposes of all of its assets to the new trust, giving rise to CGT and stamp duty issues.
If it’s a minor change you’re after (e.g. a particular clause that you are concerned about or a power you would like to include in the deed), then we may be able to assist. If this is the case, please send an executed copy of the deed and an explanation of the power you’d like to include/vary for our legal team to consider.
If it’s a full deed replacement you’re after, we would recommend seeking external legal advice.
Under our deed, Scott would be included as a general beneficiary, on the basis that he was the de facto spouse of Sarah, who was the sister of the primary beneficiary. Also, Scott continues to be a general beneficiary now, notwithstanding that Sarah is now deceased.
Therefore, the trustee of this trust is able to pay distributions to Scott as a beneficiary.
Our trust deed provides that general beneficiaries include (among others) “any………sister………of any of the Primary Beneficiaries and their Spouses………”. The words “and their Spouses” would include a spouse (as defined) of a sister of the primary beneficiary.
Under our trust deed, "Spouse", means any person with whom the person is or was living or cohabiting (or with whom the person was living or cohabiting immediately prior to the person’s death) in a bona fide domestic relationship.
Scott would be considered a spouse of Sarah under the trust deed, and he remains so notwithstanding that Sarah has died.
Yes. When you set up a Victorian or NSW trust with us, you can also order our Stamping Service. Once the trust deeds are signed, we can arrange for stamping in Victoria or NSW once they’re returned to us.
Our stamping service is only available to accounting and financial professionals. If you are not a professional adviser, please contact your local revenue office for assistance.
We believe that it should be fine to change the name of the corporate trustee, without any adverse consequences for the trust.
As the company itself will be remaining as trustee of the trust and only its name will be changing, we don’t think it should be necessary to prepare and documents for this change. When the company receives its certificate of name change from ASIC, a copy of the certificate should be kept with the trust deed to show that the trustee’s name has changed.
Note that some banks may insist on a deed on confirmation or similar to confirm that although the company name has changed, the trustee of the trust remains the same. We think this shouldn‘t be necessary, but can assist in this regard if so requested (our fee to prepare a deed of confirmation would be $350).
It is generally better to refer to the settlor’s address as it was in the deed of establishment, rather than the settlor’s current address (and this is the way we will prepare the documents).
We say this because the settlor’s only role is to sign the trust deed establishing the trust and pay the initial settlement sum. The settlor should have no other involvement with the trust, and if the settlor’s current address is referred to that may suggest that this is not the case.
Note that the situation is different in relation to the trustees, appointors, etc. of a trust – their current addresses should be referred to in any subsequent deeds or documents regarding the trust.
If a discretionary trust is established using our “foreign exclusion” trust deed, then it should not subsequently be varied so as to include foreign beneficiaries.
We say this because a subsequent amendment to include foreign beneficiaries may constitute a resettlement, which could have serious capital gains tax and stamp duty implications.
We understand that the State Revenue Office (SRO) may grant an exemption from the stamp duty surcharge and land tax surcharge to a trust using our foreign exclusion trust deed on the basis that the trust will never have any foreign beneficiaries. Therefore, if the trust deed was subsequently amended so as to include foreign beneficiaries, the SRO may then seek to impose penalties (and there is also the risk of resettlement, as stated above).
It's "allowed", but it means that the trust will be a "non-resident trust" for tax purposes (and this can lead to bad, or at least inconvenient, tax consequences).
Generally when we tell people this, they then change the trustee.
Refer to the following page on the Tax Office's website for more information:
Residency requirements for trusts:
https://www.ato.gov.au/business/international-tax-for-business/working-out-your-residency/#Trusts
Yes. The reason for this is often because the person with control over the trust is overseas, but they want the trust to be resident in Australia, meaning they need an Australian trustee.
The more important thing is that a beneficiary is represented as an appointor (though even this may not be crucial), because the appointor(s) can remove the trustee and appoint a new one if they like. This effectively means the appointor has overall control of the trust at the end of the day.
Yes, we can prepare a "foreign exclusion" deed of variation for any discretionary trust.
If you would like to order this variation to an existing deed, please complete this order form and email to info@docscentre.com.au along with a scanned copy of the executed deed.
Yes, our discretionary trust deed does enable the trustee to “stream” or categorise different types of income, to the extent that this may be done under the applicable tax laws.
However, restrictions apply in relation to the ability of a trustee to “stream” income of a trust, irrespective of the provisions of the trust deed.
Resettling a trust simply means that a new trust has been created out of an existing trust. This may result in the termination of the original trust or result in the original trust continuing alongside a new trust.
The creation of a trust in these circumstances can have significant capital gains tax and duty implications. Where a trust is resettled, and a new trust is created:
- there may be a notional disposal of any CGT assets held by the original trust to the new trust. This could trigger capital gains tax usually based on the market value of the trust assets at the time of the disposal;
- in some States, the creation of a new trust over dutiable assets will be a dutiable transaction triggering a duty liability usually based on the unencumbered value of the trust assets at the time of the trust creation;
- in Queensland and WA, the transaction may amount to a trust acquisition or a trust surrender whether or not the transaction is a resettlement. This may trigger a duty liability usually based on the unencumbered value of the trust interest affected;
- in other states, it might mean a dutiable change in beneficial ownership;
- carry forward losses may be lost or trapped in the original trust and cannot be used to reduce future taxable income of the new trust;
- beneficiaries may be deemed to dispose of their
interests in the original trust and acquire interests in the new trust with
income and capital gains tax consequences.
The Settlor is the person who "settles" or creates a trust, by providing the settled sum to the Trustee. The settled sum is the initial trust property.
When selecting the settlor, the best practice is to have an unrelated person act in that role e.g. a close, though unrelated, family friend.
We do not accept relatives of the beneficiaries or trustees as Settlors.
Yes we can provide Hybrid Trusts.
These types of trusts involve both fixed elements like a unit trust (and may even issue units), but also give the trustee an element of discretion in relation to the distribution of income and/or capital.
Although these types of trusts have their uses, they are often quite specific to the needs of the relevant individuals setting them up.
We can prepare a deed of vesting and supporting documents to wind up a trust. These documents will be prepared by our in-house legal team in accordance with the terms of the deed, so we ask that you upload an executed copy of the original deed to the online order form.
If the trustee is a company and it is also going to be wound up, this should not happen until after the trust has been vested, as the trustee will be a party to the Deed of Vesting.
To order a deed of vesting online, simply log into your account.
If we have recently established a trust for you, and you discover that you want something changed in the deed, we can generally make the change and update the documents for you in some circumstances. We can only do this if:
· The trust deed has not been signed.
· If already signed, the trust deed must not have been provided to third parties.
· The trust has not opened a bank account.
· The trust has not entered into any contract or arrangements with third parties.
· The trust deed has not been stamped.
A fee may apply, and changes must be made within 7 days after the initial completion of your order.
Any changes in other circumstances will require a deed of amendment. Please contact us at info@docscentre.com.au if this is the case and our team will send you the appropriate order form.
As a registered Duties Online organisation, we can process the duty in Victorian and New South Wales for deeds that we have established. (Please note that for NSW stamping, we need the executed deeds in hard copy to process the duty and unfortunately cannot accept a scanned copy.) For Victorian stamping, we encourage you to email us a scanned copy.
Read more about our optional stamping service for Discretionary, Unit and Child Mainentance Trust establishments.
We can prepare a trust deed amendment to make the following changes to an existing trust:
- Change the Trust Name
- Change the Trustee(s)
- Change the Appointor(s)
- Wind Up/Vest a Discretionary Trust
- Wind Up/Vest a Unit Trust
Our legal team will review your existing deed and prepare the amendment as a supplementary deed to be kept with the original trust deed. The deed and supporting documents will be prepared in accordance with the rules as set out in the original trust deed.
Where more than one of these changes is to be made, we provide bundled pricing. The price is $350 for the first amendment, $220 for each additional change requested.
In some rare cases an initial deed of amendment may be required to add the power to make the amendment. In these cases a further $350 applies to make that amendment to the deed to enable the change you want to make.
We are able to stamp most deeds that are a little late, however if they are extremely late then we may not be able to assess online.
There may be interest to pay based on the time between signing the trust deeds and them being assessed for duty.
It's up the the relevant state revenue office to determine whether there will be penalties or interest to be paid for late assessments, and we are unable to calculate this until we attempt to process the duty online. As a guide, the VIC and NSW SRO will often waive penalty interest under $20 for deeds that are a few months late, but not if they are years late.
To avoid late interest fees from the SRO trust deeds should be stamped in Victoria within 30 days of signing and within 3 months of signing in New South Wales.
See more information about our trust stamping service.
It is generally preferable to have separate trustees for the following reasons:
- it avoids the need to prove which assets belong to which trust. If two trusts have the same trustee and one gets into financial difficulty, it could be extremely costly for the trustee to prove which assets are beneficially owned under which trust; and
- there is a risk that a creditor could get access to the assets of all trusts for which the trustee acts, i.e., creditors of one trust may access assets of the others.
Yes. When you set up a Victorian or NSW trust with us, you can also order our Stamping Service. Once the trust deeds are signed, we can arrange for stamping in Victoria or NSW once they’re returned to us.
Our stamping service is only available to accounting and financial professionals. If you are not a professional adviser, please contact your local revenue office for assistance.
We believe that it should be fine to change the name of the corporate trustee, without any adverse consequences for the trust.
As the company itself will be remaining as trustee of the trust and only its name will be changing, we don’t think it should be necessary to prepare and documents for this change. When the company receives its certificate of name change from ASIC, a copy of the certificate should be kept with the trust deed to show that the trustee’s name has changed.
Note that some banks may insist on a deed on confirmation or similar to confirm that although the company name has changed, the trustee of the trust remains the same. We think this shouldn‘t be necessary, but can assist in this regard if so requested (our fee to prepare a deed of confirmation would be $350).
Resettling a trust simply means that a new trust has been created out of an existing trust. This may result in the termination of the original trust or result in the original trust continuing alongside a new trust.
The creation of a trust in these circumstances can have significant capital gains tax and duty implications. Where a trust is resettled, and a new trust is created:
- there may be a notional disposal of any CGT assets held by the original trust to the new trust. This could trigger capital gains tax usually based on the market value of the trust assets at the time of the disposal;
- in some States, the creation of a new trust over dutiable assets will be a dutiable transaction triggering a duty liability usually based on the unencumbered value of the trust assets at the time of the trust creation;
- in Queensland and WA, the transaction may amount to a trust acquisition or a trust surrender whether or not the transaction is a resettlement. This may trigger a duty liability usually based on the unencumbered value of the trust interest affected;
- in other states, it might mean a dutiable change in beneficial ownership;
- carry forward losses may be lost or trapped in the original trust and cannot be used to reduce future taxable income of the new trust;
- beneficiaries may be deemed to dispose of their
interests in the original trust and acquire interests in the new trust with
income and capital gains tax consequences.
The main thing to be careful about is the restrictions on investments that SMSFs can make.
In particular there are the "in-house asset rules", which generally prohibit a super fund from investing more than 5% of the fund's assets in a related party. Normally the unit trust will be a related party, and the acquisition of the units will be an investment - so you will need to be careful about this (especially if the SMSF already has other in-house asset investments!).
For example, if the SMSF has $100,000, the maximum it can generally invest in related parties (in total) is $5000.
There are exceptions to this, but it's best to obtain specialist advice if you would like an SMSF to invest in a unit trust.
Income from a unit trust may also be "non-arm's length income" in the hands of the fund and taxed at penalty rates.
In addition, to be safe, SMSFs should only really invest in fixed unit trusts, so that they have a fixed interest in the trust's assets (and the trustee cannot "siphon" funds out of the trust by, for example, issuing units to someone else for less than they are worth).
For example:
- Assume a unit trust starts out with no assets.
- SMSF buys 100,000 units in the unit trust for $1 each.
- Individual buys 100,000 units in the unit trust for $1 in total.
- The unit trust now has $100,001, and, theoretically, the SMSF has a 50% interest in that (worth $50,000.50), and the individual also has a 50% interest in that (worth $50,000.50). So the individual has effectively siphoned funds out of the super fund.
- This can't happen with a fixed unit trust - units must be issued for what they are worth.
- But, you'll still need to consider in-house asset rules!!
Note: If we receive an order setting up a unit trust with an SMSF subscriber, unless we receive explicit instructions to the contrary, we will assume that the investment in the unit trust is consistent with the SMSF's investment strategy.
Note also that we provide a separate (non-geared) unit trust deed that is specifically tailored to having an SMSF as a unitholder. You can order this Non-Geared Unit Trust online. Of course, this unit trust deed by itself does not guarantee compliance by the SMSF unitholder with the superannuation legislation.
Where a trust incurs tax losses, certain rules need to be satisfied in order to claim those losses. The rules for claiming the losses depend on whether the trust is a 'fixed trust' or a 'non-fixed trust'.
A trust is a fixed trust if persons (i.e., individuals, companies, trusts etc.) have fixed entitlements to all of the income and capital of the trust, but this does not necessarily mean that all unit trusts will be fixed trusts.
For a unit trust to be a fixed trust, the trust deed must specify that units can only be redeemed or issued for a price determined on the basis of the net asset value, according to Australian accounting principles, of the unit trust at the time of redemption or issue. Our deed contains clauses to this effect.
If the trust deed allows for other methods of valuing new units or the redemption of units then the trust will be a 'non-fixed trust'.
Generally, a fixed trust can carry forward any losses it makes, to be offset against future income, if it satisfies the "50% stake test". Basically, this test requires that the same individuals must have had, at all relevant times, more than a 50% stake in the fixed trust (i.e., more than a 50% stake in the income and capital of the trust between them). A fixed trust must also satisfy the 'income injection test'.
For a non-fixed trust to be able to carry forward its losses, it may not only need to satisfy the 50% stake test, but also the 'pattern of distributions test', the 'control test' and the 'income injection test'. Although this is more difficult, it is important to note that a non-fixed trust can still carry forward losses provided it satisfies the relevant tests.
Unfortunately, once you have ordered a deed from us, we do not make any significant structural changes to the deed unless the deed has not been executed.
Our concern with making major structural amendments to a trust deed is that this may cause a resettlement of the trust, which can have adverse tax and stamp duty implications (although it is by no means certain that a change such as this will resettle a trust).
We do not get involved in anything that may resettle a trust. As alluded to above, we do not really make any changes to deeds once the trusts are set up unless it hasn't really done anything (in which case we can provide replacement deeds for a fee). You may wish to contact a solicitor who can provide advice in relation to this, who could also tailor any amendment to the deed to your circumstances.
Unfortunately, the fixed unit trust deed and the ordinary unit trust deed are entirely different deeds, with different provisions, and to make a change to the deed now may constitute a resettlement (which can have stamp duty and capital gains tax (CGT) implications). Whether this change would resettle the trusts (it would mainly involve adjusting how units can be valued) is unclear.
Nevertheless, in some cases (i.e., where it is clear that the wrong deed was used by mistake when the trust was established), it may be possible for a deed of rectification to be prepared to reflect the original intention of the parties when the trust was established and to correct the mistake. Whether a deed of rectification can be prepared needs to be considered on a case by case basis, having regard to the risk of resettlement.
Yes, we can prepare documents for simple changes in unitholders and/or unitholding in a unit trust for the transfer, redemption or issue of new units.
If you have a {{supplier_name}} deed, the procedure for making changes is also set out in clauses 6 and 7 of our current deed) and we provide a template transfer notice, unit certificate, application for new units and instrument of transfer of units at the back of each unit trust deed we prepare.
Land tax legislation imposes land tax on property held by a trust on the basis that the trust is either a fixed trust or a special trust. A fixed trust may claim a generous land tax free threshold whereas a special trust cannot. A fixed trust requires the beneficiaries to have fixed entitlements to all trust income and capital. As such a fixed trust will usually be a unit trust (which is the case with our fixed trust).
A family unit trust may also be classified as a fixed trust when its land holdings in NSW have a taxable value of $1 million or less and 95 per cent or more of the units are owned by the same family group.
Note that where any of the unit holders are discretionary trusts, the land tax free threshold may be lost in whole or in part.
Although we do not advise on State taxes (or any taxes), it is quite likely that our standard fixed unit trusts are "special trusts" for NSW land tax purposes under the Office of State Revenue's new interpretation. Our standard fixed unit trust is a fixed trust for income tax purposes, not NSW land tax.
However, we do now also provide a separate trust deed that would be a fixed trust for NSW land tax purposes (as confirmed by the NSW OSR), as well as for income tax purposes. You can order this type of trust here.
- the trust deed allows for different classes of Units (like a company can have different classes of shares), and the distribution of income is "subject to any special rights or restrictions in relation to Units of any class". Therefore, if there are different classes of units with different rights (e.g., "Income only Units", or "Capital only units"), then this may affect how income may be distributed - though there will still be no discretion and distributions will still depend on unitholdings.
- also, if all of the unitholders agree, the trustee can accumulate income, and it is then to be treated as capital, although capital can only be distributed in proportion to unitholdings (subject to there being different classes of units, as explained above).
Note that there may be adverse tax consequences where a unitholder receives a capital distribution.
However, some "managed investment schemes" are required to be registered under Chapter 5C of the Corporations Act 2001.
Basically, most unit trusts would probably fall within the definition of "managed investment scheme", but if they have less than 20 unitholders, they don't have to worry about registering with ASIC - Refer S.601ED of the Corporations Act 2001.
Yes, we can prepare documents for simple changes in unitholders and/or unitholding in a unit trust for the transfer, redemption or issue of new units.
For NTAA Corporate unit trusts the procedure for making changes is also set out in the deed (refer to clauses 6 and 7 of our current deed) and we provide a template transfer notice, unit certificate, application for new units and instrument of transfer of units at the back of each unit trust deed we prepare.
Most unit trust deeds (like ours) do not have a settlor, although some do. By way of contrast, a discretionary trust deed must have a settlor.
This is largely to do with the payment of the initial amount that is required to establish a trust. For a unit trust, this amount is generally paid by the initial unitholders, in return for the units that are issued to them. The initial unitholders therefore in a sense fulfil the “settlor” role for unit trusts.
A discretionary trust has beneficiaries, rather than unitholders, and so it is necessary for a settlor to pay a nominal amount to establish a discretionary trust.
Also, discretionary trusts, which have been around for much longer than unit trusts, have traditionally been “settled” by a person (the settlor) who wishes to establish the trust.
Changing the trustee normally requires a deed of variation. To do this, we need to see the existing trust deed, establish how a variation of the deed can be accomplished, and then, usually, prepare the deed of variation, often to be signed by the trustee (usually the unitholders also need to consent in writing - we provide this, too). The deed of variation needs to be prepared on the basis of the client's deed - we cannot really use a "pro-forma" deed.
We provide our deed of variation service for $350. We do not issue a new deed - you will basically attach the deed of variation that we issue to your existing trust deed.
This is up to you!
We have flexible options in our online forms for you to choose from; the deed can either give the chair a casting vote to break deadlocks, or not give the chair a casting vote, which means that in the event of a deadlock that cannot be broken, the unitholders can request that the matter be referred for decision by arbitration. (The relevant clause in our trust deed is 16.1)
Giving the chairperson a casting vote allows for deadlocks to be resolved relatively easily, but also gives the chairperson the power to sway the vote on matters should there be an equal number of unitholders both for and against a particular issue.
Therefore, if you elect not to give the chairperson a casting vote, this avoids one person possibly wielding a disproportionate amount of power at meetings, but also means that resolving deadlocks may not be so easy (and could potentially be protracted and quite costly).
Unfortunately, no. All our unit trust deeds in effect require all units to be fully paid when the units are issued to the unitholders. This includes the unit trust, fixed unit trust, fixed unit trust for NSW land tax and non-geared unit trust.
No. It is the case in all states and territories of Australia that only a unit trust with foreign unitholders would (possibly) be regarded as a foreign trust. A unit trust that only has Australian residents as unitholders would not be regarded as a foreign trust.
A unit trust where all the unitholders are Australian residents would not be regarded as a foreign trust, although this could change if a foreign person subsequently became a unitholder.
The main thing to be careful about is the restrictions on investments that SMSFs can make.
In particular there are the "in-house asset rules", which generally prohibit a super fund from investing more than 5% of the fund's assets in a related party. Normally the unit trust will be a related party, and the acquisition of the units will be an investment - so you will need to be careful about this (especially if the SMSF already has other in-house asset investments!).
For example, if the SMSF has $100,000, the maximum it can generally invest in related parties (in total) is $5000.
There are exceptions to this, but it's best to obtain specialist advice if you would like an SMSF to invest in a unit trust.
Income from a unit trust may also be "non-arm's length income" in the hands of the fund and taxed at penalty rates.
In addition, to be safe, SMSFs should only really invest in fixed unit trusts, so that they have a fixed interest in the trust's assets (and the trustee cannot "siphon" funds out of the trust by, for example, issuing units to someone else for less than they are worth).
For example:
- Assume a unit trust starts out with no assets.
- SMSF buys 100,000 units in the unit trust for $1 each.
- Individual buys 100,000 units in the unit trust for $1 in total.
- The unit trust now has $100,001, and, theoretically, the SMSF has a 50% interest in that (worth $50,000.50), and the individual also has a 50% interest in that (worth $50,000.50). So the individual has effectively siphoned funds out of the super fund.
- This can't happen with a fixed unit trust - units must be issued for what they are worth.
- But, you'll still need to consider in-house asset rules!!
Note: If we receive an order setting up a unit trust with an SMSF subscriber, unless we receive explicit instructions to the contrary, we will assume that the investment in the unit trust is consistent with the SMSF's investment strategy.
Note also that we provide a separate (non-geared) unit trust deed that is specifically tailored to having an SMSF as a unitholder. You can order this Non-Geared Unit Trust online. Of course, this unit trust deed by itself does not guarantee compliance by the SMSF unitholder with the superannuation legislation.
Not really! We originally provided superannuation funds solely through DBA Butler Lawyers and these orders were all processed by DBA Butler’s legal team.
We have since been able to offer this service “in house” by obtaining documents from external law firms (including Holding Redlich and Hall & Wilcox). Using their deeds and documents, we are able to prepare all of the paperwork, etc, for superannuation funds, and the final product is checked by our own legal team. This arrangement has allowed us to offer those deeds at a lower price.
Obviously the deeds look different because they're drafted by different law firms, but they all comply with the current Super Fund laws, taxation laws etc.
The following Q and A’s primarily look at the deeds we provide in-house.
Yes. The NTAA Corporate deeds should be flexible enough to take into account future changes in the law, but as changes occur (which is often) our lawyers then draft changes to our new deeds as quickly as they can whilst maintaining their high quality.
If you would like to upgrade your SMSF deed, you can do so by ordering a deed of variation online.
To be a self managed superannuation fund (or SMSF), the fund needs to meet the definition of a SMSF in S.17A of the Superannuation Industry (Supervision) Act 1993.
One of these requirements is basically that, for all funds except for sole member funds, all of the members must be trustees (or directors of the corporate trustee), and all of the trustees (or directors of the corporate trustee) must be members.
However, where a fund has only one member and individual trustees, it is required to have two individual trustees.
Yes, that's true. As usual, there are a few exceptions to the general rule above. In the case of children, S.17A(3)(c) allows the parent or guardian of the child member to be a trustee (or director of the corporate trustee) of the fund in place of the member (even if the parent or guardian is already a trustee/director of the corporate trustee).
Unfortunately, in order to maintain our low prices and high services levels, we generally don't prepare any funds which go outside the general rules set out above. That is, we usually only set up SMSFs where all of the members are trustees (or directors of the corporate trustee), and all of the trustees (or directors of the corporate trustee) are members (or where a fund has only one member and two individual trustees).
Nevertheless, if so requested, we may consider amending our SMSF documents (e.g., to allow for a parent or guardian of a child to be a trustee/director of the corporate trustee in the child's place). Please contact us before placing your order if you have this situation.
In most situations it will be better for an SMSF to have a corporate trustee, rather than individual trustees. The major disadvantage of a corporate trustee is the up-front cost of establishing the company. However, there are longer-term benefits of having a company which generally outweigh the extra costs.
The following table looks at the advantages and disadvantages of a corporate trustee over an individual trustee:
| CORPORATE TRUSTEE | .......... | INDIVIDUAL TRUSTEES |
|---|---|---|
| Sole member SMSF | Sole member SMSF | |
| You can have an SMSF where one individual is both the sole member and the sole director. | A sole member SMSF must have two individual trustees. | |
| Continuous succession | Ceases upon death | |
| A company has an indefinite life span; in other words, it cannot die. Therefore, a corporate trustee can make control of a SMSF more certain in the circumstances of the death or incapacity of a member. | If the SMSF has individual trustees, eg, a mum and dad SMSF, then timely action must be taken on the death of a member to ensure the trustee/member rules are satisfied (SMSF rules do not allow a sole individual trustee/member SMSF). | |
| Lump sums and pensions | Lump sums only payable on commuting pension | |
| An SMSF with a corporate trustee can pay benefits either as pensions or as lump sums. | Some practitioners argue that the member must surrender or commute their pension entitlement if they wish to obtain a lump sum (as an SMSF must have its primary purpose of paying a pension). According to this argument, a fund cannot simply pay a lump sum benefit, and extra paperwork is needed to evidence the pension entitlement first being requested and then being commuted. | |
| Administrative efficiency | Extra and costly paperwork | |
| When members are admitted to, or cease, membership of the SMSF, all that is required is that the person becomes, or ceases to be, a director of the corporate trustee. The corporate trustee does not change as a result. Therefore, title to all the assets of the SMSF remains in the name of the corporate trustee. | To introduce a new member to an SMSF with individual trustees requires that person to become a trustee. As trust assets must be held in the names of the trustees, this will require the title to all assets to be transferred to the new trustees when a member is admitted to or exits the fund. | |
| Greater asset protection | Less asset protection | |
| As companies are subject to limited liability, a corporate trustee will provide greater protection where a party sues the trustee for damages. | If an individual trustee suffers any liability, the trustee's personal assets may be exposed. | |
| Estate planning flexibility | Extra administration and costs | |
| A corporate trustee ensures greater flexibility for estate planning, as the trustee does not change as a result of the death of a member. | The death of a member requires there to be a change of trustee, and this gives rise to considerable administrative work and costs at an inopportune time. |
The ATO also provides some helpful information here.
It's best to ask the bank about this, but make sure that you have fully read the letter that came with the documents and followed the Documentation Summary.
Also, make sure that you have either completed the ATO form, or applied online, to receive an ABN or TFN for the super fund. You have 60 days after execution to complete the ATO form (although under other regulations the ATO needs notification of the contact details and other basic information in relation to the Fund and the trustee within seven days after the establishment of the Fund, so it's best to complete and send this form within seven days).
Once you have received the ABN and TFN the ATO has confirmed that it will be a regulated fund, check with the bank to be sure it does not need anything else.
The Superannuation Product Identification Number (SPIN) was used for surcharge reporting purposes.
To apply for one, the fund needed to lodge a form and pay the relevant fee. The form could be obtained from the APIR Web site (www.apir.com.au).
However, since the superannuation surcharge has been abolished a SPIN should no longer be necessary (at least for new funds).
For further information, refer to http://www.apir.com.au/public/spinDirectory.jsp
An SMSF with individual trustees must have the primary purpose of paying pensions. Some practitioners argue that this in effect means that an SMSF with individual trustees cannot simply pay a lump sum benefit, and that extra paperwork is needed to evidence the pension entitlement first being requested and then being commuted.
While we do not necessarily agree with this view, it is better to err on the side of caution and have the extra paperwork in relation to the pension entitlement first being requested and then being commuted (or alternatively arrange for the SMSF to have a corporate trustee rather than individual trustees).
This may potentially result in the Australian Taxation Office deeming the fund to be non-complying and this can be disastrous, as a non-complying fund's assets (not income, but assets) can be taxed at 45%.
The deed does not specifically state that the trust can purchase business real property from its members or their associates, but that should be fine under the deed.
Clause 11.2 provides the trustee with wide powers to invest the fund’s assets, subject to complying with superannuation laws. In this regard, the SIS Act specifically allows SMSFs to acquire business real property from related parties at market value (refer S.66(2)(b)).
You should note, however, that clause 11.4 requires that the trustee and any director of the trustee disclose any interest in any investment in the manner prescribed by the Corporations Act and superannuation law whenever they have a direct or indirect interest in the investment or may benefit directly or indirectly from the investment.
Transition to retirement pensions (especially before 1 July 2007) are also known as "non-commutable pensions". Clause 31.1(b) of our latest deed permits the payment of a benefit as a non-commutable pension and clause 38 sets out the conditions that apply to these payments. Also, "pension" as defined in clause 2 of our latest deed specifically includes a transition to retirement income stream.
More information can be found on transition to retirement pensions at http://www.ato.gov.au/super/content.asp?doc=/content/74219.htm and also at http://www.ato.gov.au/super/content.asp?doc=/Content/74202.htm.
Although someone may have bought an SMSF deed before they were fully updated, the deeds are drafted broadly to take into account future changes.
In this case, the deeds in February 2007 specifically set out the terms and conditions of certain pensions that can be paid, but clause 27.2(d) of that deed also allows the fund to pay "any other form of pension which is acceptable to the Regulator or is within the requirements of the Relevant Law on such terms as the Trustee may determine".
Holding Redlich (the law firm that drafted the 2007 version of our SMSF deed) have provided us with the following general information about the pension clauses of that deed:
"Clause 27 provides a facility for such a lump sum benefit to be converted to an income stream benefit on terms agreed between the Pensioner and the Trustee which are within the range of outcomes possible for each type of income stream. The types of income stream benefit payable under the deed include an Allocated Pension/Non-Commutable Allocated Pension (payable under the conditions set out in clause 28) and a Market-Linked Pension/Non-Commutable Market-Linked Pension (payable under the conditions set out in clause 29) and such Defined Benefit and other Pensions as are permitted under the Relevant Law."
The new "account-based pensions" (which can be paid by super funds from 1 July 2007) are basically a type of allocated pension, with more generous minimum amounts that can be withdrawn each year (and no maximum). For more information about these, and the amounts that can be withdrawn, refer http://simplersuper.treasury.gov.au/documents/decision/html/final_decision-02.asp
and also http://www.ato.gov.au/Super/Self-managed-super-funds/Accessing-your-super/Paying-benefits/#Incomestreams and about retirement income streams generally: http://www.fido.gov.au/fido/fido.nsf/byheadline/Retirement+income+streams:+fact+sheets?openDocument
The definition and terms of payment of an "account-based pension" can be found in Regulations 1.03 and 1.06(9A) of the SIS Regulations 1994 - refer http://www.austlii.edu.au/au/legis/cth/consol_reg/sir1994582/s1.03.html and http://www.austlii.edu.au/au/legis/cth/consol_reg/sir1994582/s1.06.html.
Our current deed provides for the payment of an account based pension at clause 31.1(b) and clause 38 sets out the conditions that apply to these payments.
Finally, where a member is receiving an allocated pension (commenced before September 2007), we can if requested arrange for this allocated pension to be converted to an account-based pension.
Our trust deed does allow for the separation of assets between members. Clause 11 sets out the trustee's investment powers with clause 11.2 outlining the numerous investment choices that can be made by the trustee and clause 11.5 specifically contemplating the trustee making separate investments for certain beneficiaries or members. The trustee is able to implement any number of investment strategies. One member can choose to have his/her account invested in accordance with a particular investment strategy that may for example, invest in a certain type of asset. Other members can choose to go with another investment strategy that may invest in quite different assets.
To go about separating assets the Trustee needs to prepare the appropriate investment strategies and provide members with information about the respective strategies. Where the Trustee establishes more than one investment strategy for certain members of beneficiaries, clause 20 requires the trustee to:
- record on whose benefit the specific investments are made for the purposes of determining allocations to the member’s account; and
- properly allocate to the applicable account credits and debits in proportion to the specific investment.
Our SMSF deed does allow for an SMSF to invest in crypto currencies such as bitcoin.
Under our current deed, refer in particular to clause 11.2(c), and also to clause 11.2(n) and the first paragraph of clause 11.2 (just before paragraph (a)).
However, it should be remembered that all investments of an SMSF are subject to the applicable superannuation legislation, in particular, to the Superannuation Industry (Supervision) Act 1993 (SIS Act) and its regulations, irrespective of the provisions of the SMSF deed.
If you have established it through us, select
- An ATO regulated Self-Managed Superannuation Fund
Yes, the number of members can be up to the maximum permitted under superannuation law.
Yes. The NTAA Corporate deeds should be flexible enough to take into account future changes in the law, but as changes occur (which is often) our lawyers then draft changes to our new deeds as quickly as they can whilst maintaining their high quality.
If you would like to upgrade your SMSF deed, you can do so by ordering a deed of variation online.
Our SMSF deed does allow for an SMSF to invest in crypto currencies such as bitcoin.
Under our current deed, refer in particular to clause 11.2(c), and also to clause 11.2(n) and the first paragraph of clause 11.2 (just before paragraph (a)).
However, it should be remembered that all investments of an SMSF are subject to the applicable superannuation legislation, in particular, to the Superannuation Industry (Supervision) Act 1993 (SIS Act) and its regulations, irrespective of the provisions of the SMSF deed.
Yes, the number of members can be up to the maximum permitted under superannuation law.
The trust deed for the fund must allow for the ABP to be paid. Trust deeds drafted before mid-2007 will not expressly allow for an ABP to be paid, as the legislation in relation to ABPs was only finalised at that time. If the existing trust deed was drafted before mid-2007, we would recommend that it now be upgraded for this reason alone (if requested, we can now arrange for the trust deed to be upgraded).
The trust deed for the fund must allow for the TRIS to be paid. Trust deeds drafted before mid-2007 will not expressly allow for a TRIS to be paid, as the legislation in relation to TRISs was only finalised at that time. If the existing trust deed was drafted before mid-2007, we would recommend that it now be upgraded for this reason alone (if requested, we can now arrange for the trust deed to be upgraded).
If the variation clause in the current SMSF trust deed provides that the approval of the Principal Employer is required to vary the trust deed, then they will need to be involved to update the deed and will then have no further role.
This means that the principal employer (often a company) should be a party to the variation documents that we prepare, even if that company does not now have any involvement with the fund.
Note that, apart from being a party to the variation documents that we are to prepare, the Principal Employer does not have to have any further involvement with the fund.
Therefore, in order to update the deed and subsequently remove the principal employer from any further role in the fund, please provide the details of the principal employer in the Other Parties tab on the online deed of variation form.
The trust deed for the fund must allow for the ABP to be paid. Trust deeds drafted before mid-2007 will not expressly allow for an ABP to be paid, as the legislation in relation to ABPs was only finalised at that time. If the existing trust deed was drafted before mid-2007, we would recommend that it now be upgraded for this reason alone (if requested, we can now arrange for the trust deed to be upgraded).
The trust deed for the fund must allow for the TRIS to be paid. Trust deeds drafted before mid-2007 will not expressly allow for a TRIS to be paid, as the legislation in relation to TRISs was only finalised at that time. If the existing trust deed was drafted before mid-2007, we would recommend that it now be upgraded for this reason alone (if requested, we can now arrange for the trust deed to be upgraded).
In each financial year, the total amount of pension payments that a pensioner may receive is not subject to a maximum limit, although it must be at least the minimum annual payment amount. Schedule 7 to the Superannuation Industry (Supervision) Regulations 1994 (Cth) sets out the minimum annual payment amount, which is determined by the pensioner’s account balance and the prescribed percentage factor for their age. The pensioner’s age at the commencement date and on each 1 July thereafter is used to determine the percentage factor.
In each financial year (unless the pension commences between 1 June and 30 June) the pensioner must receive at least one pension payment. If the pension commenced between 1 June and 30 June, there is no need for any payment in the financial year in which the pension commenced.
The minimum annual payment amount must be pro-rated when the commencement date of the pension is other than 1 July, having regard to the number of days the pension is payable in that financial year.
So long as the pensioner has a positive pension account balance, pension payments must continue throughout the pensioner’s lifetime.
Payments under an ABP can be paid as agreed by the trustee from time to time (i.e., annually, quarterly, monthly, etc).
Generally speaking, all investment income and capital gains earned within the pension account are tax free. In other words, earnings on assets supporting the ABP are tax free.
It should be noted, however, that certain types of income (eg, taxable contributions and certain private company dividends) are never exempt from tax, even in a pension fund.
Where the pensioner is aged 55-59 then the gross pension amount less the tax free component of the pension payment is assessable as normal income and subject to tax at the pensioner’s marginal tax rate plus the Medicare levy. These pension payments are (like salary or wages) subject to income tax, although the application of the 15% tax offset reduces the amount of tax payable.
That is, the taxable component of a pension payment attracts a 15% rebate (also known as an offset). For example, the maximum amount of tax that will apply to the taxable component of the ABP payment for a pensioner on a 30% tax rate is reduced to 15%. Note that the pension rebate does not result in a refund if tax is payable at less than a 15% rate (and the pension rebate is only applicable for pensioners aged 55 to 59.)
However, if the pensioner is aged 60 or over, the entire pension is received tax free and is not required to be included in the pensioner’s personal income tax return.
Yes, an ABP can be reversionary (although it does not have to be). This means that the pension continues to be paid after the death of the primary pensioner to another person (i.e., a reversionary pensioner). According to the ATO, where an ABP is reversionary, the Trustee generally should not have any discretion to determine the persons to whom the death benefit is to be paid or the manner of payment.
If an ABP is to be reversionary, it should ideally be documented as such before it is commenced. If permitted under the trust deed, an ABP can subsequently be made reversionary after it has commenced to be paid (see below). A reversionary ABP may override any current or future binding or non-binding death benefit nomination subject to the trust deed.
Upon the death of the pensioner, the ABP can only be transferred to:
- a spouse; or
- a child who is
- under 18; or
- under 25 and financially dependent on the pensioner; or
- disabled; or
- another person who either is financially dependent on or in an interdependency relationship with the deceased.
If a reversionary pension is chosen, then the tax treatment of the reversionary pension is dependent on the age of the pensioner and the reversionary. If either or both of the pensioner and the reversionary beneficiary are aged 60 or over, then the reversionary beneficiary will receive the pension without paying tax on it, and PAYG is not required. However, if both the pensioner (when they died) and the reversionary beneficiary are under age 60 then the taxable component of the pension is taxable and PAYG must be withheld from the taxable component.
If it is permitted under the trust deed, an ABP may subsequently be made reversionary after it has commenced to be paid. You should check the trust deed to ensure that conversion of the reversionary nature of a pension following its commencement is allowed. If it is permitted, you may request that a ‘non-reversionary’ pension become reversionary to a reversionary beneficiary by notifying the Trustee and otherwise complying with the requirements of the trust deed.
Unfortunately, no. Depending on the pensioner’s life span, or the amount of income that is withdrawn under the ABP, there is a risk that the pensioner’s superannuation pension account could be exhausted prior to the pensioner’s death. Also, the pensioner’s pension account balance is subject to investment risk, meaning that its value may rise and fall, as it is not guaranteed. It may therefore be appropriate for members to consult a financial adviser before deciding whether or not to commence an ABP.
The main difference between these two pensions is that, unlike an ABP, a transition to retirement income stream (TRIS) may be commenced as soon as the member has reached their preservation age, even if they continue to be in the workforce.
Also, unlike an ABP, there is a maximum limit to the amount that may be paid under a TRIS each year (being 10% of the pension account balance for that financial year).
Note that where a TRIS is being paid, once the pensioner satisfies a condition of release with a nil cashing restriction (such as retiring after reaching preservation age or turning 65), the TRIS may then be ‘converted’ to an ABP (or to a lump sum).
Yes, provided the trust deed for the SMSF so allows, a pensioner can roll their ABP back into ‘accumulation’ phase at any age. However, once in the accumulation phase income will generally be taxed at 15%.
A pensioner can also roll-over their pension account balance to another complying superannuation fund to commence an ABP (though they must generally stop the ABP first).
When a pension is commuted within a particular financial year, the minimum annual payment amount of the ABP must be pro-rated and paid, having regard to the number of days the pension was payable in that financial year. For instance, if the ABP was commuted exactly half way through the financial year, then the minimum annual payment amount for that year would be half the amount that would otherwise apply.
No. Once an ABP has commenced, the superannuation law provides that the capital supporting the ABP cannot be added to by way of contribution or roll-over.
Contributions can continue to be made for the pensioner after the ABP has commenced, however, they would be paid into a separate accumulation account for the pensioner, rather than into the pension account.
Not necessarily.
More particularly, in order to calculate the proportion of an SMSF’s income that is exempt, there are two possible approaches that may be adopted.
First of all, the assets that will support the pension may be segregated, and held solely to enable a fund to discharge its pension liabilities (however, note that the ability for an SMSF to utilise segregation may be removed from 1 July 2017, if any one member of the fund has a total superannuation balance greater than $1.6 million). In this case, it is necessary for specific assets to be identified to ensure they are isolated from other assets. Gains and losses associated with those assets can then be traced via the accounting system. Typically, a trustee resolution may be used to document the list of segregated assets.
Alternatively, rather than segregating the assets, it is possible to pro-rate the pension exemption based on the balance of the assets applied towards the pension compared to the total fund balance.
An actuarial certificate will be required if some or all of the assets backing a pension are unsegregated. However, where all of the assets backing an ABP are segregated, an actuarial certificate is not required by the fund.
Expert advice should be obtained if there is any doubt in deciding whether or not to segregate assets, due to the complexities involved.
Yes, even for a pensioner aged 60 or over, the tax free component may still have some relevance. More particularly, the tax free component will again become relevant on the death of the pensioner in the event that the benefit then becomes payable to a non-dependant, such as an adult child. (I.e., the adult child, as a non-tax dependant, would receive the tax-free component tax free, whereas the taxable component would be subject to tax of 15%.)
Yes, a deceased member’s benefits in an SMSF may be paid to another member by way of a new ABP, although in that case the trustees of the SMSF should obtain detailed legal advice as death in an SMSF gives rise to many issues.
On the death of a member receiving an ABP, if there is no reversionary beneficiary nomination, any remaining amount in the pension account for the ABP (as well as any other benefits of the deceased member in the SMSF) may then be paid by the trustee of the SMSF in accordance with the SMSF’s trust deed, either to one or more dependants of the deceased member, and/or to the estate of the deceased member to be dealt with according to their Will.
‘Dependants’ include a spouse (including de facto partners and same sex partners), children, and any other person that was financially dependent on the pensioner at the time of death or any person who was in an ‘interdependency relationship’ as defined in the superannuation legislation with the pensioner.
A pensioner can make a binding death benefit nomination (BDBN) (provided that the trust deed for the fund allows for BDBNs to be prepared) during their lifetime and bind the trustee to pay benefits according to the pensioner’s direction. Otherwise, the decision of how to pay death benefits is by default left to the trustee’s discretion.
As stated above, if the ABP is reversionary, it will then continue to be paid after the pensioner dies to the reversionary pensioner. A reversionary beneficiary nomination may override any current or future BDBN or non-binding death benefit nomination subject to the trust deed.
Generally speaking, a condition of release with a nil cashing restriction must have been satisfied by the member after reaching their preservation age before they can commence an ABP from their SMSF.
A member’s preservation age is between 55 and 60, depending on when they were born (members born before 1 July 1960 have a preservation age of 55, whereas members born after 30 June 1964 have a preservation age of 60).
For example, a member may commence an ABP once they have retired (for the purposes of the superannuation law) after reaching their preservation age, or once they have attained the age of 65.
|
Date of Birth |
Preservation Age |
|
Before 1 July 1960 |
55 years |
|
Between 1 July 1960 and 30 June 1961 |
56 years |
|
Between 1 July 1961 and 30 June 1962 |
57 years |
|
Between 1 July 1962 and 30 June 1963 |
58 years |
|
Between 1 July 1963 and 30 June 1964 |
59 years |
|
After 30 June 1964 |
60 years |
Broadly, a member can commence a TRIS once they have reached their preservation age (even if they continue to work).
A member’s preservation age is between 55 and 60, depending on when they were born (members born before 1 July 1960 have a preservation age of 55, whereas members born after 30 June 1964 have a preservation age of 60).
|
Date of Birth |
Preservation Age |
|
Before 1 July 1960 |
55 years |
|
Between 1 July 1960 and 30 June 1961 |
56 years |
|
Between 1 July 1961 and 30 June 1962 |
57 years |
|
Between 1 July 1962 and 30 June 1963 |
58 years |
|
Between 1 July 1963 and 30 June 1964 |
59 years |
|
After 30 June 1964 |
60 years |
In each financial year, the total amount of pension payments that a pensioner may receive must be at least the minimum annual payment amount. Schedule 7 to the Superannuation Industry (Supervision) Regulations 1994 (Cth) sets out the minimum annual payment amount, which is determined by the pensioner’s account balance and the prescribed percentage factor for their age. The pensioner’s age at the commencement date and on each 1 July thereafter is used to determine the percentage factor.
Unless and until the pensioner satisfies a condition of release with a nil cashing restriction, then the amount of the pension payments each year cannot exceed 10% of the pension account balance on 1 July in the financial year in question (or on the commencement day of the pension, in the year in which the pension commences).
In each financial year (unless the pension commences between 1 June and 30 June) the pensioner must receive at least one pension payment. If the pension commenced between 1 June and 30 June, there is no need for any payment in the financial year in which the pension commenced.
The minimum annual payment amount must be pro-rated when the commencement date of the pension is other than 1 July, having regard to the number of days the pension is payable in that financial year.
So long as the pensioner has a positive pension account balance, pension payments must continue throughout the pensioner’s lifetime.
Payments under a TRIS can be paid as agreed by the trustee from time to time (i.e., annually, quarterly, monthly, etc).
Our TRIS kit has been drafted so that once the pensioner satisfies a condition of release with a nil cashing restriction (such as retiring or attaining age 65), then no maximum limit applies, and the TRIS then in effect automatically converts to a normal account-based pension unless otherwise agreed between the pensioner and the trustee.
As there is no maximum annual payment limit imposed for an account-based pension, the pensioner could, on satisfying a ‘full’ condition of release, withdraw the entire pension account balance. However, the minimum limits imposed by law on pensions will continue to apply to the account-based pension. The conversion to an account-based pension will allow income from the assets supporting the account-based pension to obtain a tax exemption (subject to the $1.6 million cap on the commencing balance of pensions from 1 July 2017).
Up to 30 June 2017, generally all investment income and capital gains earned within the pension account are tax free. In other words, earnings on assets supporting the TRIS are tax free. From 1 July 2017, the tax exemption on earnings supporting a TRIS will be removed, and earnings will generally be subject to a tax rate of 15% (effective for the 2017/18 financial year).
It should be noted, however, that certain types of income (eg, taxable contributions and certain private company dividends) are never exempt from tax, even in a pension fund.
Yes, a TRIS can be reversionary (although it does not have to be). This means that the pension continues to be paid after the death of the primary pensioner to another person (i.e., a reversionary pensioner). According to the ATO, where a TRIS is reversionary, the Trustee generally should not have any discretion to determine the persons to whom the death benefit is to be paid or the manner of payment.
If a TRIS is to be reversionary, it should ideally be documented as such before it is commenced. If permitted under the trust deed, a TRIS can subsequently be made reversionary after it has commenced to be paid (see below). A reversionary TRIS may override any current or future binding or non-binding death benefit nomination subject to the trust deed.
Upon the death of the pensioner, the TRIS can only be transferred to:
- a spouse; or
- a child who is
- under 18; or
- under 25 and financially dependent on the pensioner; or
- disabled; or
- another person who either is financially dependent on or in an interdependency relationship with the deceased.
If it is permitted under the trust deed, a TRIS may subsequently be made reversionary after it has commenced to be paid. You should check the trust deed to ensure that conversion of the reversionary nature of a TRIS following its commencement is allowed.
If it is permitted, you may request that a ‘non-reversionary’ TRIS become reversionary to a reversionary beneficiary by notifying the Trustee and otherwise complying with the requirements of the trust deed.
Unfortunately, no. Depending on the pensioner’s life span, or the amount of income that is withdrawn under the TRIS, there is a risk that the pensioner’s superannuation pension account could be exhausted prior to the pensioner’s death. Also, the pensioner’s pension account balance is subject to investment risk, meaning that its value may rise and fall, as it is not guaranteed. It may therefore be appropriate for members to consult a financial adviser before deciding whether or not to commence a TRIS.
The main difference between these two pensions is that, unlike a TRIS, an account-based pension (ABP) generally can only be commenced once the member has satisfied a condition of release with a nil cashing restriction (such as retiring after reaching preservation age, or attaining age 65). That is, unlike a TRIS, it is not sufficient for the member to simply reach preservation age in order to commence an ABP – the member must also then retire for the purposes of the superannuation legislation.
Also, unlike a TRIS, there is no maximum limit to the amount that may be paid under an ABP each year – if the member so wishes, the entire pension account of an ABP can be paid at any time.
Yes, provided the trust deed for the SMSF so allows, a pensioner can roll their TRIS back into ‘accumulation’ phase at any age. However, once in the accumulation phase income will generally be taxed at 15% (note this will be the case for all TRISs after 1 July 2017, anyway).
A pensioner can also roll-over their pension account balance to another complying superannuation fund to commence a TRIS (though they must generally stop the TRIS first).
When a pension is commuted within a particular financial year, the minimum annual payment amount of the TRIS must be pro-rated and paid, having regard to the number of days the pension was payable in that financial year. For instance, if the TRIS was commuted exactly half way through the financial year, then the minimum annual payment amount for that year would be half the amount that would otherwise apply.
No. Once a TRIS has commenced, the superannuation law provides that the capital supporting the TRIS cannot be added to by way of contribution or roll-over.
Contributions can continue to be made for the pensioner after the TRIS has commenced, however, they would be paid into a separate accumulation account for the pensioner, rather than into the pension account.
Not necessarily.
More particularly, in order to calculate the proportion of an SMSF’s income that is exempt, there are two possible approaches that may be adopted.
First of all, the assets that will support the pension may be segregated, and held solely to enable a fund to discharge its pension liabilities (however, note that the ability for an SMSF to utilise segregation may be removed from 1 July 2017, if any one member of the fund has a total superannuation balance greater than $1.6 million). In this case, it is necessary for specific assets to be identified to ensure they are isolated from other assets. Gains and losses associated with those assets can then be traced via the accounting system. Typically, a trustee resolution may be used to document the list of segregated assets.
Alternatively, rather than segregating the assets, it is possible to pro-rate the pension exemption based on the balance of the assets applied towards the pension compared to the total fund balance.
An actuarial certificate will be required if some or all of the assets backing a pension are unsegregated. However, where all of the assets backing a TRIS are segregated, an actuarial certificate is not required by the fund.
Expert advice should be obtained if there is any doubt in deciding whether or not to segregate assets, due to the complexities involved.
Yes, even for a pensioner aged 60 or over, the tax free component may still have some relevance. More particularly, the tax free component will again become relevant on the death of the pensioner in the event that the benefit then becomes payable to a non-dependant, such as an adult child. (I.e., the adult child, as a non-tax dependant, would receive the tax-free component tax free, whereas the taxable component would be subject to tax of 15%.)
On the death of a member receiving a TRIS, if there is no reversionary beneficiary nomination, any remaining amount in the pension account for the TRIS (as well as any other benefits of the deceased member in the SMSF) may then be paid by the trustee of the SMSF in accordance with the SMSF’s trust deed, either to one or more dependants of the deceased member, and/or to the estate of the deceased member, to be dealt with according to their Will.
‘Dependants’ include a spouse (including de facto partners and same sex partners), children, and any other person that was financially dependent on the pensioner at the time of death or any person who was in an ‘interdependency relationship’ as defined in the superannuation legislation with the pensioner.
A pensioner can make a binding death benefit nomination (BDBN) (provided that the trust deed for the fund allows for BDBNs to be prepared) during their lifetime and bind the trustee to pay benefits according to the pensioner’s direction. Otherwise, the decision of how to pay death benefits is by default left to the trustee’s discretion.
As stated above, if the TRIS is reversionary, it will then continue to be paid after the pensioner dies to the reversionary pensioner. A reversionary beneficiary nomination may override any current or future BDBN or non-binding death benefit nomination subject to the trust deed.
We can provide documents completed with the fund details to start a new pension for an Account Based Pension (ABP) or Transition to Retirement Income Stream (TRIS).
Login using your email address and password. Click on SMSFs and then under the heading Tools to Manage a Fund select the pension you want to start (ABP or TRIS). Complete and submit the form and we will prepare the documents, simple!
Watch this step by step video guide to ordering an ABP or TRIS online. For more information on starting an ABP or TRIS (new pension), see this news article from our in-house legal team.
The procedure and consequences of the exit of partners is usually included in a partnership agreement. The existing partners and the new partners can agree as to the terms of the admission of a new partner.
Note that when the membership of a partnership changes, that partnership is often considered to have come to an end, and a new partnership, with new partners, comes into existence.
A partnership does not need an agent. However, in cases where there are more than 2 partners, it can have practical advantages. Because a partnership is not a legal entity, any arrangement/contract that the partnership enters into must be approved/signed off by all partners. That can be practically difficult. Using an agent reduces the day to day need to involve all partners. The agent generally will carry on the practical operations of a business but is responsible to the partners who are ultimately liable for the partnership debts.
On the “Complete“ tab click the option next to the XPM icon and then click “Next.”
You will be asked which records you wish to push to XPM. Check the box next to the appropriate records then click “Save.”
Note:
The Settlor will typically be the accountant or financial planner but
if you do want to create that person as a client in XPM you will need to
complete their date of birth in the order form.
You will then see a confirmation message. Click “Close” and then “Next”
Select the order from My Cart and then click “Checkout” and complete the payment process.
Your order has now been completed and you will receive an email confirming the entity has been established in XPM.
XPM
will now show the new entity record and update the relationships where
the individual has been populated from the XPM integration or if the
details entered in the order form match exactly to those recorded in
XPM.
You will also receive an email like below if the Xero Practice Manager push succeeded.
Search for and click on your order via My Orders.
Click on the Details icon.
Click “Push to Xero PM.”
You will be asked which records you wish to push to XPM. Check the box next to the appropriate records then click “Save.”
Note:
The Settlor will typically be the accountant or financial planner but
if you do want to create that person as a client in XPM you will need to
complete their date of birth in the order form.
A prompt will inform you that the push process has started. The same prompt will refresh when the process is done.
You will also receive confirmation via email that the entity has been established in XPM.
Placing an order is as simple as clicking Order Now or selecting the order type from the menu headers! Once you have logged in (using your registered email address and password) you will be able to place as many orders as you need completing our user friendly online forms. If, for instance, you're ordering a trust with a new corporate trustee, you can order the company, add it to your Cart and then order the trust. The company details will be stored in our system, making the trust form easy to fill out and you can process both orders through the Cart together!
If you are more comfortable with paper forms, please contact us and we can send to you via email. These PDF forms can be directly typed onto and then emailed to us for processing. Please note that an administration fee applies to paper forms that can be ordered online and online orders will be processed in priority to paper forms. If your order is urgent then we recommend ordering online (and you'll enjoy the cheaper prices!).
If you make an error in an order the best thing to do is not panic! Contact us as soon as you notice and we'll be able to advise on the best course of action, depending on the situation for the particular order.
Unfortunately, in instances where a mistake has been made in a registered company, any correction will need to be made directly with ASIC. More information about mistakes in companies here.
Avoid errors by ensuring you complete a thorough review of all information before submitting an application. You can also download a checklist and email it to your client to check prior to submitting; your order will stay in Draft status until you're ready to continue.
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Unfortunately, no. Our service operates by taking instructions from members (generally accountants) who have already considered all of the issues relevant to your situation - unfortunately, we do not and cannot provide legal advice, and you may wish to seek advice from an accountant or solicitor.
We provide very competitively priced business structures, and rely on providing standard form documents to accountants who know enough about what their clients need to simply complete our instruction form and send it in. The documents are checked by lawyers, but our agreements with them do not extend to providing legal advice.
If anyone needs anything more complicated, we normally advise them to seek specialist advice.
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