{"id":9139,"date":"2019-02-11T12:51:23","date_gmt":"2019-02-11T01:51:23","guid":{"rendered":"http:\/\/www.dbalawyers.com.au\/?p=9139"},"modified":"2022-11-29T21:33:37","modified_gmt":"2022-11-29T10:33:37","slug":"the-trustee-member-rules-explained-part-1","status":"publish","type":"post","link":"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-1\/","title":{"rendered":"The trustee\u2013member rules explained: Part 1"},"content":{"rendered":"<p><em>By <\/em><em>William Fettes<\/em> <em>(<\/em><a href=\"mailto:wfettes@dbalawyers.com.au\"><em>wfettes@dbalawyers.com.au<\/em><\/a><em>), Senior Associate, DBA Lawyers<\/em><\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"size-medium wp-image-9141 alignright\" src=\"http:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2019\/02\/bigstock-Portrait-Of-Confused-Young-Eur-250672321-300x300.jpg\" alt=\"\" width=\"300\" height=\"300\" srcset=\"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2019\/02\/bigstock-Portrait-Of-Confused-Young-Eur-250672321-300x300.jpg 300w, https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2019\/02\/bigstock-Portrait-Of-Confused-Young-Eur-250672321-150x150.jpg 150w, https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2019\/02\/bigstock-Portrait-Of-Confused-Young-Eur-250672321-768x768.jpg 768w, https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2019\/02\/bigstock-Portrait-Of-Confused-Young-Eur-250672321.jpg 900w\" sizes=\"(max-width: 300px) 100vw, 300px\" \/><\/p>\n<p>The trustee\u2013member rules are one of the most fundamental concepts underlying the operation of self managed superannuation funds (\u2018SMSF\u2019). These rules are found in s\u00a017A of the <em>Superannuation Industry (Supervision) Act 1993<\/em> (Cth) (\u2018SISA\u2019) and form part of the key conditions that must be satisfied for a fund to meet the definition of an SMSF.<\/p>\n<p>The trustee\u2013member rules set out the \u2018rules of the game\u2019 for the structure of a fund, and in broad terms, the rules require that all members are trustees (or directors of a corporate trustee) and vice versa. It is critical that a fund conforms with s\u00a017A, including the trustee\u2013member rules, in order to maintain complying status and receive concessional tax treatment.<\/p>\n<p>Of course, there are particular exceptions and subtleties that apply to the operation of these rules and we aim to clarify some of the major misconceptions in this article.<\/p>\n<p>(All section references are to the SISA.)<\/p>\n<h3><strong>Funds with more than one member <\/strong><\/h3>\n<p>Among other things, s 17A(1) provides that funds other than sole member funds will be an SMSF if and only if:<\/p>\n<ul>\n<li>if the fund has a corporate trustee \u2014 each director of the corporate trustee is a member of the fund and each member is a director; or<\/li>\n<li>if the fund has individual trustees \u2014 each member is a trustee and each trustee is a member.<\/li>\n<\/ul>\n<p>Accordingly, in the ordinary course SMSFs with more than one member would generally be expected to have a perfect correspondence (ie, symmetry) between trustees\/directors and members, unless a relevant exception applies.<\/p>\n<h3><strong>Sole member funds<\/strong><\/h3>\n<p>In contrast, the rules operate slightly differently for sole member funds and relevantly s 17A(2) provides that a fund will be an SMSF if and only if:<\/p>\n<ul>\n<li>if the fund has a corporate trustee with a sole director \u2014 the sole director is a member; or<\/li>\n<li>if the fund has a corporate trustee with two directors \u2014 one of directors is the member; or<\/li>\n<li>if the fund has individual trustees \u2014 there are two individual trustees, one of whom is the member.<\/li>\n<\/ul>\n<p>This means that the expectation of perfect alignment between fund members and trustees\/directors does not apply for sole member funds. More specifically, a single member fund can have an individual co-trustee (or co-director of a corporate trustee) who is not themselves a fund member. Indeed, two individual trustees are required for the former structure as a single member fund cannot have a sole individual trustee.<\/p>\n<h3><strong>Exceptions<\/strong><\/h3>\n<p>Naturally, the trustee\u2013member rules contain a number of exceptions whereby the structure of a fund can deviate from the above composition rules and nonetheless remain an SMSF. We now consider certain relevant exceptions below.<\/p>\n<h3><strong>What happens when a member dies?<\/strong><\/h3>\n<p>One of the most often encountered yet misunderstood scenarios\u00a0is what happens to the composition of an SMSF when a member dies. As a general rule, the trusteeship\/directorship of a deceased person ceases on death, whereas their membership status is contingent on the SMSF deed and the extent to which they retain benefits in the fund.<\/p>\n<p>This potentially leaves the fund in an uncertain position, eg, in relation to who can make decisions in regard to the payment of relevant member\u2019s death benefits.<\/p>\n<p>In these scenarios, the trustee\u2013member rules permit a legal personal representative (\u2018LPR\u2019) to represent the deceased member as a trustee\/director from the point in time of the death of the member to when the death benefits become payable. In this context, a member\u2019s LPR refers to the executor(s) of their will or otherwise their administrator(s) in the case of intestacy.<\/p>\n<p>Importantly, LPRs must be validly appointed as trustees\/directors to take advantage of this exception in s 17A(3)(a) as this appointment is not automatic (refer to <em>Ioppolo &amp; Hesford v Conti<\/em> [2013] WASC 389 [20]).<\/p>\n<p>Naturally, the SMSF governing rules and\/or the constitution and structure of the trustee company generally determine how such appointments can be made.<\/p>\n<h3><strong>What happens when a member has a legal disability? <\/strong><\/h3>\n<p>There is a separate exception in s 17A(3)(b)(i) for SMSF members under a legal disability. This provision allows for LPRs (in this context, guardians appointed by a state or territory tribunal) to represent the relevant member at the trustee-level.<\/p>\n<p>It should be noted that the definition of an LPR in s\u00a010 imprecisely refers to these types of LPRs as \u2018the trustee of the estate of a person under a legal disability\u2019, however, it is broadly accepted by the ATO that a guardian duly appointed under state or territory guardianship law is an LPR for this purpose (see ATO ID 2010\/139).<\/p>\n<h3><strong>What happens when an enduring power of attorney is in place?<\/strong><\/h3>\n<p>Where a member has appointed an attorney under an enduring power of attorney (\u2018EPoA\u2019), the attorney can also act in place of a member at the trustee-level under s 17A(3)(b)(ii).<\/p>\n<p>This allows a member to effectively cease being a trustee\/director where an attorney under an EPoA has been duly appointed as a trustee\/director.<\/p>\n<p>Attorneys as LPRs provide an important safeguard for protecting the interests of members who may lose legal capacity. EPoAs also play an important role in the context SMSF residency where members intend to be based overseas for a period of time, eg, to ensure that the high-level decision-making for the fund continues to be exercised in Australia.<\/p>\n<p>In SMSFR 2010\/2, the ATO outlines its view on the operation of this exception. In broad terms, the ATO consider that a member must generally cease as a trustee\/director to take advantage of this provision, except for in the case of a corporate trustee where the LPR is appointed as an alternate director.<\/p>\n<p>DBA Lawyers does not recommend the use of alternate directors in an SMSF context, as alternate directors can give rise to ambiguity about who is empowered to act at any given point in time. In our view, appointing a successor director provides a safer means to cover risk in relation to loss of capacity and death.<\/p>\n<h3><strong>What happens when a member is underage?<\/strong><\/h3>\n<p>In broad terms, a minor cannot be an individual trustee of a trust or a director of a company (ie, due to them being under a legal disability because of age).<\/p>\n<p>However, this does not mean that minors cannot be SMSF members. Section 17A(3)(c) expressly provides that an underage member who does not otherwise have an LPR can be represented at the trustee-level by their parent or guardian allowing for the trustee\u2013member rules to be satisfied.<\/p>\n<p>Naturally, this exception ceases when the underage member attains age 18. At that point in time, the member would need to be made a trustee\/director as soon as possible \u2014 ie, within 6 months of the member turning 18.<\/p>\n<h3><strong>Conclusion<\/strong><\/h3>\n<p>As evidenced by this article, there are numerous subtleties and complexities that arise in relation to the operation of the trustee\u2013member rules. It is critical that advisers and SMSF members give careful consideration to these rules to ensure that the complying status of their funds is preserved.<\/p>\n<p>This article provides a general summary only and does not consider all relevant aspects of s\u00a017A and broader superannuation law. Expert legal advice should be sought in regard to the trustee\u2013member rules to ensure that any complexities that arise are not overlooked, particularly in the event of a member\u2019s death or loss of capacity or if there is any doubt about the current fund structure.<\/p>\n<p>In part two of this series, we will examine a number of tips and traps in regard to the trustee\u2013member rules and provide a detailed summary of considerations that should be borne in mind when operating an SMSF.<\/p>\n<h3>Related articles<\/h3>\n<ul>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/changing-smsf-trustees-why-advisers-should-be-more-alert-to-the-tips-and-traps\/\">Changing SMSF trustees- why advisers should be more alert to the tips and traps<\/a><\/li>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/investments\/leave-smsf-changes-trustee-lawyers\/\">Leave SMSF change of trustee to the lawyers<\/a><\/li>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/smsf-deeds\/7692\/\">Perry v Nicholson [2017] QSC 163: important lessons on SMSF succession planning<\/a><\/li>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-2\/\">The trustee-member rules explained: Part 2<\/a><\/li>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/smsf-strategy\/why-admit-a-conditional-member-in-an-smsf\/\">Why admit a conditional member in an SMSF?<\/a><\/li>\n<li><a href=\"https:\/\/www.dbalawyers.com.au\/smsf-deeds\/the-advantages-of-conditional-membership-in-an-smsf\/\">The advantages of conditional membership in an SMSF<\/a><\/li>\n<\/ul>\n<p style=\"text-align: center;\">*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *<\/p>\n<p>This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional.<\/p>\n<p><strong>DBA LAWYERS<\/strong><\/p>\n<p>11\/2\/2019<\/p>\n","protected":false},"excerpt":{"rendered":"<p>By William Fettes (wfettes@dbalawyers.com.au), Senior Associate, DBA Lawyers The trustee\u2013member rules are one of the most fundamental concepts underlying the operation of self managed superannuation funds (\u2018SMSF\u2019). These rules are found in s\u00a017A of the Superannuation Industry (Supervision) Act 1993 (Cth) (\u2018SISA\u2019) and form part of the key conditions that must be satisfied for a [<a class=\"read-more\" href=\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-1\/\">read more<\/a>]<\/p>\n","protected":false},"author":22,"featured_media":9141,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[33,34,35,37,38],"tags":[],"ppma_author":[138],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v22.5 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>The trustee\u2013member rules explained: Part 1 | Leading SMSF Law Firm<\/title>\n<meta name=\"description\" content=\"There are numerous subtleties and complexities that arise in relation to the operation of the trustee\u2013member rules. It is critical that advisers and SMSF members give careful consideration to these rules to ensure that the complying status of their funds is preserved.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-1\/\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Daniel Butler\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"7 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-1\/\",\"url\":\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-1\/\",\"name\":\"The trustee\u2013member rules explained: Part 1 | Leading SMSF Law Firm\",\"isPartOf\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/#website\"},\"primaryImageOfPage\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-1\/#primaryimage\"},\"image\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/smsf-compliance\/the-trustee-member-rules-explained-part-1\/#primaryimage\"},\"thumbnailUrl\":\"https:\/\/www.dbalawyers.com.au\/wp-content\/uploads\/2019\/02\/bigstock-Portrait-Of-Confused-Young-Eur-250672321.jpg\",\"datePublished\":\"2019-02-11T01:51:23+00:00\",\"dateModified\":\"2022-11-29T10:33:37+00:00\",\"author\":{\"@id\":\"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/51e17c75fbc6987d17bcc7c68f6879c3\"},\"description\":\"There are numerous subtleties and complexities that arise in relation to the operation of the trustee\u2013member rules. 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Confusion and pensive concept\"},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/#website\",\"url\":\"https:\/\/www.dbalawyers.com.au\/\",\"name\":\"DBA Lawyers\",\"description\":\"Leading SMSF Law Firm\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.dbalawyers.com.au\/?s={search_term_string}\"},\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/51e17c75fbc6987d17bcc7c68f6879c3\",\"name\":\"Daniel Butler\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/image\/2169bc3da061d4bd5f02e1a67c0df79e\",\"url\":\"https:\/\/secure.gravatar.com\/avatar\/d78c2b0f9e09daf27cca87ab8a52fe85?s=96&d=mm&r=g\",\"contentUrl\":\"https:\/\/secure.gravatar.com\/avatar\/d78c2b0f9e09daf27cca87ab8a52fe85?s=96&d=mm&r=g\",\"caption\":\"Daniel Butler\"},\"description\":\"Dan is recognised as one of Australia's leading SMSF lawyers complemented by his taxation and commercial expertise. 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Confusion and pensive concept"},{"@type":"WebSite","@id":"https:\/\/www.dbalawyers.com.au\/#website","url":"https:\/\/www.dbalawyers.com.au\/","name":"DBA Lawyers","description":"Leading SMSF Law Firm","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.dbalawyers.com.au\/?s={search_term_string}"},"query-input":"required name=search_term_string"}],"inLanguage":"en-US"},{"@type":"Person","@id":"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/51e17c75fbc6987d17bcc7c68f6879c3","name":"Daniel Butler","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.dbalawyers.com.au\/#\/schema\/person\/image\/2169bc3da061d4bd5f02e1a67c0df79e","url":"https:\/\/secure.gravatar.com\/avatar\/d78c2b0f9e09daf27cca87ab8a52fe85?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/d78c2b0f9e09daf27cca87ab8a52fe85?s=96&d=mm&r=g","caption":"Daniel Butler"},"description":"Dan is recognised as one of Australia's leading SMSF lawyers complemented by his taxation and commercial expertise. He has worked predominantly in the fields of tax and superannuation over the past 36 years, is a qualified Chartered Tax Adviser, Chartered Accountant and has an MBA from the University of Melbourne. Dan is a regular seminar presenter on tax and SMSF topics and has published extensively in these areas. Dan regularly presents for the major professional bodies including the SMSF Association, The Tax Institute, Chartered Accountants Australia and New Zealand and DBA Network. Dan is a member of the ATO's Super &amp; Employment Change Committee, The Tax Institute's National Superannuation Committee, the Law Institute of Victoria's Tax Committee and is involved with a number of other tax and SMSF committees. Dan presents on the subject of Taxation of Superannuation at the University of Melbourne's Master of Laws\/Tax program. Dan is also a Specialist SMSF Advisor\u2122.","url":"https:\/\/www.dbalawyers.com.au\/author\/daniel\/"}]}},"authors":[{"term_id":138,"user_id":22,"is_guest":0,"slug":"daniel","display_name":"Daniel Butler","avatar_url":"https:\/\/secure.gravatar.com\/avatar\/d78c2b0f9e09daf27cca87ab8a52fe85?s=96&d=mm&r=g","first_name":"Daniel","last_name":"Butler","user_url":"","description":"Dan is recognised as one of Australia's leading SMSF lawyers complemented by his taxation and commercial expertise. He has worked predominantly in the fields of tax and superannuation over the past 36 years, is a qualified Chartered Tax Adviser, Chartered Accountant and has an MBA from the University of Melbourne.\r\nDan is a regular seminar presenter on tax and SMSF topics and has published extensively in these areas. Dan regularly presents for the major professional bodies including the SMSF Association, The Tax Institute, Chartered Accountants Australia and New Zealand and DBA Network.\r\nDan is a member of the ATO's Super &amp; Employment Change Committee, The Tax Institute's National Superannuation Committee, the Law Institute of Victoria's Tax Committee and is involved with a number of other tax and SMSF committees. Dan presents on the subject of Taxation of Superannuation at the University of Melbourne's Master of Laws\/Tax program. Dan is also a Specialist SMSF Advisor\u2122."}],"_links":{"self":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts\/9139"}],"collection":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/users\/22"}],"replies":[{"embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/comments?post=9139"}],"version-history":[{"count":2,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts\/9139\/revisions"}],"predecessor-version":[{"id":14182,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/posts\/9139\/revisions\/14182"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/media\/9141"}],"wp:attachment":[{"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/media?parent=9139"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/categories?post=9139"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/tags?post=9139"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/www.dbalawyers.com.au\/wp-json\/wp\/v2\/ppma_author?post=9139"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}