Taking an extended job posting overseas? If you currently have an SMSF, you’ll need a strategy for managing your super to ensure your fund doesn’t breach any residency rules. Know your options and plan before you go.
When SMSF trustees travel overseas for an extended period, there’s a risk their fund’s “central management and control” (CMC) will be considered to move outside Australia. This causes the SMSF to become non-resident, resulting in very hefty penalty taxes. It’s essential to plan for this before departing overseas.
The first step is to consider whether your absence will be significant enough to create a CMC risk. A temporary absence not exceeding two years isn’t a problem, but whether the ATO considers your absence temporary or permanent will depend on your particular case. Your adviser can take you through the ATO’s guidelines. If you think you’ll have a CMC problem, the next step is to consider possible solutions.
Option 1: Appoint an attorney
Usually, every SMSF member must be a trustee (or director of its corporate trustee). However, an SMSF member travelling overseas can avoid CMC problems by appointing a trusted Australian-based person to act as trustee (or director) for them, provided that person holds the member’s enduring power of attorney (EPOA).
Sounds simple? Just a word of caution: the SMSF member must resign as a trustee (or director) and be prepared to genuinely hand over control to their attorney.
If the member continues to effectively act like a trustee while overseas – for example, by sending significant instructions to their attorney or being involved in strategic decision-making – there’s a risk the CMC of the fund may really be outside Australia.
You’ll also need to comply with the separate “active member” test, which broadly requires that while the SMSF is receiving any contributions, at least 50% of the fund’s total asset value attributable to actively contributing members is attributable to resident contributing members. To illustrate this, in a Mum-and-Dad SMSF where both spouses are overseas, a single contribution from either spouse could cause the fund to fail this test and expose the fund to penalties. In other words, you may need to stop SMSF contributions entirely while overseas. Consider making any contributions into a separate public offer fund.
Option 2: Wind up
Not prepared to give control of your super to an acquaintance? You might consider rolling your super over to a public offer fund and winding up the SMSF. This option completely removes any CMC stress (as control lies with the professional Australian trustee), and you can make contributions into the large fund without worrying about the “active member” test.
However, you’ll need to sell or transfer out the SMSF’s assets first – real estate, shares and other investments – and this may trigger capital gains tax (CGT) liabilities. These asset disposals will be partly or even fully exempt from CGT if the fund is paying retirement phase pensions, so talk to your adviser about your SMSF’s expected CGT bill if you choose this wind-up option.
Option 3: Convert to a small APRA fund
Another option is converting the SMSF into a “small APRA fund” (SAF). Like SMSFs, SAFs have a maximum of four members but instead of being managed by the members they are run by a professional licensed trustee. This takes care of any CMC worries, and on conversion the fund won’t incur any CGT liabilities because the assets remain in the fund – only the trustee structure changes.
The downside is that an SAF may be expensive because you’ll be paying a professional trustee to run your fund. You’ll also need to comply with the “active member test” so, as in Option 1, you may need to stop all contributions into the SAF.
If you’re moving overseas for a while, contact us to start your SMSF planning now. We can help you explore your options and implement a strategy to protect your superannuation against residency problems.