SMSF’s are regulated by the ATO and have specific eligibility criteria that members and trustees must follow. While anyone 18 years old or over can be a trustee or director of an SMSF, they mustn’t be under a legal disability, such as mental incapacity, or a disqualified person.
The ATO can render an SMSF trustee as a disqualified person if they see the need, particularly in relation to illegal early access breaches. There are other ways a person may become disqualified and some may not even realise they have been. Continuing to act as an SMSF trustee or director of the corporate trustee while disqualified is an offence, further penalties may apply.
A person is disqualified if they:
Have been convicted of an offence involving dishonesty.
Are or have been subject to a civil penalty order under the super laws.
Are insolvent under administration (including being an undischarged bankrupt).
Have been disqualified by a court or regulator (for example, by the ATO or APRA).
The ATO has a Disqualified trustees register to see if an individual has previously been disqualified. The register provides information and easy search options to help determine whether a potential trustee has been disqualified. It is updated quarterly and includes all individuals who have been disqualified since 2012 (when the information was first published electronically).
Inactive low-balance accounts (ILBAs) are a new category account that needs to be reported and paid to the ATO. This was introduced in the Treasury Law Amendment (Protect Your Superannuation Package) Bill 2019 that came into effect on 1 July 2019 after first being announced in the 2018-19 Federal Budget.
ILBAs are designed to protect accounts from fee erosion. Where possible, the ATO will proactively consolidate super on behalf of an individual.
A superannuation account is considered an ILBA if the following criteria are met:
No amount has been received by the fund for crediting to that account for an individuals benefit within the last 16 months.
The account balance is less than $6,000.
A prescribed condition of release has not been met.
The account is not a defined benefit account.
There is no insurance on the account.
The account is not held in a self-managed super fund (SMSF) or small Australian Prudential Regulation Authority (APRA) fund.
Funds are required to identify ILBAs on 30 June and 31 December each year, then report and pay them to the ATO by the statement date.
31 October in the same year for accounts identified on 30 June.
30 April of the following year for accounts identified on 31 December.
Individuals that have an account that they do not want to be transferred to the ATO as an ILBA, can consolidate super accounts using ATO online services through myGov, contact their super fund for more information or authorise their super fund to provide a written declaration to the ATO.
