A technical manager has emphasised the importance of the consent to act for SMSFs and has confirmed it is not only individual trustees who are required to sign the document.
“The trustee isn’t [properly] appointed until they’ve agreed in writing [to act in that capacity], so it’s a super important document and it includes directors as well,” Heffron senior SMSF technical specialist Annie Dawson told attendees of the Heffron Super Intensive Day 2021 held last week.
“Where people often get confused is when you’re being appointed as a director under the [corporations] law you have to consent in writing under that legislation, but the consent to act [under] the SIS (Superannuation Industry (Supervision)) rules is a separate and additional requirement.”
The wording on the form is slightly different for individual trustees as opposed to directors of a corporate trustee, Dawson noted.
“[So the consent] is very important to have in writing prior to the fund coming into existence. Usually in practice of course, though, everything is just dated on the same day,” she said.
She also acknowledged the consent to act form is completely different to the SMSF trustee declaration and that one cannot be substituted for the other.
“From a client’s perspective all of these documents look the same, they sound the same, [but] the consent to act though and the trustee declaration are different and both needed,” she said.
“[With regard to the trustee declaration] the ATO wanted to make sure the people on board in coming into the fund are very clear and understand exactly what their responsibilities are and what they need to do to fulfil their job as the trustee or director.
“So if you look at the fine print on that document, [it makes trustees confirm] they will comply with the sole purpose test [and] it lists out all of the trustee duties, all the covenants, laws about accepting contributions, paid benefits and those types of things.”
She pointed out the trustee declaration only needs to be signed within 21 days of the time the individual takes on the role and not prior to the establishment of the fund like the consent to act.