Submission on Superannuation Legislation Amendment Bill (No.3) 1999

Superannuation Legislation Amendment Bill (No. 3) 1999
Table of Contents

Submission on Superannuation Legislation Amendment Bill (No.3) 1999

Australian Retirement Income Streams Association Limited (ARISA)

Introduction

The thrust of our submission revolves around the additional burdens being placed on small business, the narrowness of the draft legislation and technical matters. The points we have listed below illustrate these issues. In light of the present Government's commitment to support for small business, particularly in terms of simplifying compliance with a range of legislative/regulatory requirements, it is disappointing to note that there is no significant evidence of simplification in the proposed measures. In fact, the process of transferring regulation of self managed funds from APRA to the ATO involves additional time consuming administrative tasks. Moreover, these will be of an ongoing nature, and not just limited to a transitional period. It is our view that serious consideration should be given to the impact of the proposed arrangements on this important sector of the community.

Definition of self managed funds

Number of Members

Given that all members must be trustees, and that family or business relationships must link all members/trustees, it is not clear to us why the number of members must be limited to four. In many instances, there are more than 2 children in a family, thus precluding the whole family from belonging to the same fund. This situation is exacerbated once Mum and Dad retire and become pensioners (because they remain members of the fund, cf., amendment to s.10 of SIS), and where there are 2 or more children with spouses (working in the family business) who would like to be members of the family super fund.

If it is felt desirable to place an upper limit on the number of members, a number closer to 7 should be considered. There is an argument for having no cap on the number however it would be impractical for operational purposes to have too large a number of trustees. In our view the increase in member capacity will eventually have a limiting effect on the number of funds in existence, and hence mean that there are less funds to regulate.

Requirement for family/business relationships.

Some flexibility in the application of the rules would achieve a more stable, orderly environment for small business, and reduce costs and time spent on administrative tasks. The introduction of a discretion beyond 6 months would assist in situations where business arrangements are fluid, and, for example, partnerships are temporarily suspended or amended. Often changes in business arrangements take considerable time to implement and the superannuation arrangements of the partners are of lower priority. The case of business partners retiring from the workforce needs to be addressed also. Under the Bill as drafted, members with business links who are not related would be forced to split their funds when the business relationship ceases. This could occur at any time, but would have particular impact at retirement. We recommend that either, the business relationship test be a once off test (ie if members have business links at the time of becoming a member) and it not apply thereafter, or, that retirement is not considered to be a cessation of the business linkage.

Technical drafting issue

It is suggested that the wording in 17A(e) should be changed to delete the second occurrence of `each', and replace it with `an'. While we agree that the original wording does not represent the allowed relationships as illustrated by the Explanatory Memorandum, we do not believe that the amendment reflects the intention of the legislation. It would allow for example, a husband and wife, and another husband and wife, without the need for any relationship between the two couples.

Wallis recommendations

Wallis sought to rationalise regulation of the financial services sector and improve the efficiency and simplicity of financial services. We believe that this Bill does not offer any significant operational efficency or simplicity for the small business community or financial services providers with respect to SMSFs.

CGT rollover relief

It is quite surprising that the issue of CGT rollover relief has not been addressed by the Bill.

Initially, some SMSFs may have to involuntarily terminate the membership of some of their existing members (eg., employees). The fund will therefore be likely to incur a CGT liability because disposal of assets will necessarily take place. This situation will be ongoing where business arrangements change, and where divorce leads to breach of the family relationships requirement. Disposal of assets will therefore be forced because of legislative requirements.

We urge you to give consideration to CGT rollover relief to provide a reasonable solution. Further, we urge that a swift decision be made, so that doubt and uncertainty over the coming months can be avoided. In terms of the Government's Retirement Incomes Policy, certainty in relation to superannuation is a crucial factor in maintaining/re-capturing the confidence of the public.

Some rollover relief exists where trust deeds are amended to meet the SIS legislation, however this does not appear to extend to situations where a member may have to be removed from the fund with assets changing ownership as a result.

Ownership of assets

Where there is a change of trustee (because the small fund will be regulated by APRA and use a corporate trustee, or because members(who are also trustees) are forced to leave the fund due to breach of the relationship requirements), an enormous administrative burden is placed on funds to ensure that ownership of the fund's assets is correctly recorded on all the relevant documentation.

Consideration should be given to any relief that may be provided within SIS in such circumstances.

Stamp Duty

Transfer of ownership of assets (see previous point) may require the payment of Stamp Duty, thus incurring additional costs. Even where additional costs are not incurred (ie., documents need to be stamped, but no duty is payable), the administrative burden on small super funds will be an ongoing problem. We urge the Government to consult with the States on this matter to determine whether stamp duty relief would be forthcoming in circumstances where assets change ownership only to comply with this legislation.

Simplification

This issue is raised in our introduction. One very easy way of reducing complexity is to find simple ways of naming categories/types/components etc., in the SIS legislation generally. As far as the current Bill is concerned, consideration should be given to determining simple, short names for the different types of super funds.

Trust deed issues

It seems clear that at some point in the process of transferring SMSFs to the ATO, SMSFs will need to examine their trust deeds. At least as a temporary measure, pressure on small business would be alleviated if some deeming provisions could be inserted into the legislation to enable such amendments to be attended to at a later date.

Seamless transfer

The Bill provides for a transition period for funds to meet the trustee/member requirements. This period closes on March 31 2000. We recommend that this be extended to 30 June 2000 to fit in better with accountants normal cycles, or that the notice under section 252 be made part of the 1999 APRA return to minimise paperwork and compliance effort.

Approved trustee rules

Where small funds are regulated by APRA because they do not meet the new definition of `self managed fund', for whatever reason, we request that consideration be given to amending the rules for approved trustees. Acting as a trustee of a small fund (which would, presumably, be defined as a fund with fewer than x members), while perhaps requiring the same level of knowledge of the SIS provisions, should not require the level of financial backing (NTA) required for trusteeship of large funds. There would not appear to be any reason why a less onerous approved trustee category could not be introduced for small funds.

Non-Resident Members

There is a conflict between this Bill and the provisions dealing with non-resident funds. Under existing legislation, it is possible that a fund can become non-resident, and hence non-complying, where a trustee/member becomes a non-resident. This Bill requires the member to be a trustee (individually or as a director of a trustee company) and hence may force a situation where the fund became non-complying. This must be addressed as it is obviously an unintended consequence.

One Person Funds

For a one person fund, the member must be a trustee and one other linked person must be trustee (individually or as a director of a trustee company). There does not seem to be any reason why there could not be more than one linked trustee other than the member. For example, this may be useful in circumstances where the member is older and relies on children more to manage their affairs.

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