The role an SMSF trust deed plays in allowing the use of the First Home Super Saver Scheme (FHSSS) remains slightly unclear, according to a superannuation specialist lawyer.
DBA Lawyers special counsel Bryce Figot noted at his firm’s latest strategy seminar in Sydney that in a practical sense it should not matter whether or not the SMSF deed specifically allows the use of the FHSSS.
“This is one of the very few times where I don’t think the deed has to allow for it. Why? Because the mechanism under which this works is the ATO gives a release authority,” Figot noted.
“And if the ATO gives a release authority, how can the trustee refuse that? It can’t. It will override the deed essentially.”
However, he pointed out the regulator itself has confused the issue with an instruction contained on its website.
“They say ‘before you start saving you should check that your nominated super fund/s will release the money’,” he said.
“What are they going to do? Say no? They’re going to have to pay it, but it is interesting that the ATO suggests that the fund has the discretion to not pay the money.
“I don’t think they do. I think that’s wrong.”
He pointed out he thought the initiative would not make a significant difference to the housing market shortage.
“Why am I so confident that this is too hard and people won’t take it up?” he said.
“Because we had a very similar system a couple of years ago and what happened to it? It died due to lack of interest.”
