WHAT YOU NEED TO KNOW

How we approach our audit when dealing with the death of a member in an SMSF.

OUR AUDIT APPROACH

Part B of our audit report includes an opinion on the trustees’ compliance with regulations 6.17 of the Superannuation Industry (Supervision) Regulations (SISR). Compliance with that regulation requires the trustee to observe regulation 6.21, which states that a member’s benefit must be cashed as soon as practicable after the member dies. It is, therefore, this which is our focus.

It should be noted that we are not providing an opinion on whether all potential beneficiaries have been considered, nor are we providing an opinion on the impact on the transfer balance account of the beneficiaries.

MATTERS TO CONSIDER

Potentially the most important issue following the death of a member of an SMSF becomes who controls the fund. The member’s legal personal representative can act as a trustee (or director of the corporate trustee) of the fund until the death benefit commences to be paid. However, the fund has to ensure any necessary changes are made within six months to ensure compliance with section 17A of the Superannuation Industry (Supervision) Act 1993 (SISA). We will review compliance with this section and ensure any changes are documented in a signed amendment deed or an equivalent document. An ATO Trustees’ Declaration should also be signed by any new trustee/director within 21 days of their appointment (section 104A of SISA).

WHO HAS RECEIVED THE DEATH BENEFITS

The obligation is on the trustees to identify the potential beneficiaries and distribute benefits accordingly. As noted above, the death benefit must be cashed as soon as practicable after the member dies. The industry rule of thumb is that the payment of death benefits should be made within six months of the date of death; however, in our experience, between 6 and 18 months is more typical. Therefore, a delay beyond six months is acceptable, provided there is a valid explanation (e.g., a delay with probate in the courts).

We will check to see if the trustees have observed a valid, binding death benefit nomination or an existing reversionary pension. Documentation is of utmost importance. If neither exists, the trustees have ultimate discretion regarding whom and how the death benefits will be paid.

Only SIS dependants and the estate can directly receive a death benefit; all other beneficiaries must be paid via the estate. SIS dependants include spouses, anyone in an interdependency relationship with the member, children (regardless of age) and anyone financially reliant on the member.

It will be up to the trustees to provide us with evidence to confirm an individual’s status as an SIS dependant.

HAS THE DEATH BENEFIT BEEN ‘CASHED’

Without a reversionary pension in existence, death benefits can be paid as either a lump sum or pension, subject to any restrictions in the fund’s trust deed. Trustees should recall that all pension payments must be paid in cash when deciding how to pay death benefits. In contrast, a lump sum can be paid in cash or in-specie. For example, a single asset transfer (non-cash) can consist of multiple benefit payments coming from different member accounts.

Further, trustees should note that the ATO has confirmed in ATO ID 2015/23 that mere journal entries are insufficient for a lump sum benefit to be considered as ‘cashed’ and that regulation 6.21 of the SISR strictly states that no more than two lump sums (cash or non-cash) are permitted when paying a death benefit out of the fund.

These are all matters that will be considered during our audit.

CONSIDERATION FOR TAX

Death benefits will only be tax-free for the beneficiary if they are paid to tax dependants. Tax dependants include a spouse; former spouse; anyone in an interdependency relationship with the member; minor children, and adult disabled children. Financially independent adult children are generally not included.

Although, if the necessary conditions are satisfied, a parent and adult child may be in an interdependent relationship. For an interdependency relationship to exist, there must be a close personal relationship, i.e., both parties living together, one or both parties providing financial support to the other, and one or both parties providing domestic support/personal care to the other. Such a relationship has been found to exist in these two private rulings from the ATO (Authorisation Numbers: 1051560119930 & 1051770106043).

Where the death benefit beneficiary is likely to be subject to tax on the benefit they receive, the fund needs to consider its withholding tax obligations.

When a member dies in accumulation phase, capital gains tax on the disposal of investments necessary to pay death benefits must be considered. Where the member was receiving a complying income stream at the time of their death, the fund is deemed to be in pension phase until the death benefit is cashed despite a non-reversionary pension ceasing upon the member’s death. The fund will still be entitled to exempt current pension income in relation to any assets sold to facilitate the payment of the benefit.

As part of our financial statement audit, we will consider the tax implications when assessing the fund’s tax liabilities.

CHECKLIST FOR REQUIRED AUDIT EVIDENCE

• Death certificate.
• Documentation to confirm the deceased member’s legal personal representative.
• Signed change of trustee/director documents, including the signed ATO trustee declaration (if applicable).
• Most recent ASIC statement for the corporate trustee (if applicable), confirming the change in the directorship (as applicable).
• Signed binding death benefit or non-binding death benefit nominations (if applicable).
• Signed pension commencement documents confirming any reversionary pension (if not already provided).
• Signed minutes from the trustees/directors outlining the form in which the death benefits will be paid and to whom (beneficiaries).
  
  

IN CONCLUSION

Although this article focused on how we approach our audit and the issues we encounter, we would like to highlight that, as with all compliance matters, it’s always preferable to avoid problems by effective planning ahead of time rather than having to rectify historical breaches. Therefore, if trustees or you have any doubts about the required actions, pause and seek professional advice before proceeding. It is a dangerous strategy to forge ahead and wait to see what the SMSF auditor may say about the transaction, as by that time, the death benefit possibly would have already been paid and it may be complicated and costly to unwind.

WE’RE HERE TO HELP!

If you have any issues, questions or feedback regarding our monthly SMSF Bulletin or if you’d like clarification or further advice on the content of this month’s edition or any other SMSF audit concern – don’t hesitate to reach out to me at +61 416 123 446 or trosati@rosatiwang.com.