Superannuation is puzzling enough, not to mention when you have to think about Bankruptcy also. At Gold Coast Bankruptcy Centre we frequently have a lot of people questioning us about what can happen to their super, and if you possess a regulated or industry fund (like most superfunds) then your super is secure, and Bankruptcy will have no effect upon your super. Nonetheless, if you have a Self-Managed Super Fund then you could discover some issues because there are certain things you can not do whilst insolvent related to the management of finances.
This is really an increasing concern with a number of Australians in the last few years; the ATO informs us it has developed Australia-wide from 758,589 in 2009 to 1,011,689 in 2014. So what happens to these Superfunds when it boils down to Bankruptcy?
As I recommended previously, a basic solution to your SMSF concern is to put your super back into a normal regulated managed fund prior to personal bankruptcy and save yourself all the complications described above.
Firstly, if you are thinking about Bankruptcy, you can not be a part of a SMSF. Why? Because if you are confronting insolvency, you will be grouped as a ‘disqualified person’. And a disqualified person can not operate as an Individual Trustee. This poses a complication because usually most of the SMSFs are just 2 people, which implies the two of these users must also be the individual trustees. The position of trustee sets a bunch of legal guidelines, and if you are in this position I would strongly advise you to become aware of them all– for example the fact that you can not ‘know or suspect’ that one of you are insolvent. Therefore, you can notice how an individual insolvency could be rather harmful to a SMSF and as you can envision the procedure of Bankruptcy for a SMSF is somewhat complicated.
Regardless if you phone us or somebody else it does not matter, just please do not walk into bankruptcy blind when it comes to your SMSF. In reality because Bankruptcy is so complex with SMSFs we urge you to get both legal and financial recommendations before proceeding with any of the steps suggested within this article.
So what takes place if one of the members of an SMSF does enter Bankruptcy?
For starters, the SMSF will need to be restructured. This means that you will certainly want to take into consideration your whole structure and ensure it is satisfying the basic terms, incorporating things like having a new trustee that is not coping with problems with Personal bankruptcy. The Australian Tax office will provide you a 6 month ‘grace period’ in order to get this completed before you face punishments. And consider, in some cases the most optimal strategy would be to simply roll the fund into an industry or corporate fund.
Beyond these large-scale restructuring matters, there is a lot of paperwork to handle too, and you have to be constantly keeping the ATO notified of what is taking place. This indicates you need to let them know that you have a bankruptcy issue with your current trustee, that they are being removed as soon as possible and let them know who the new trustee/director is. The Bankrupt will additionally have to update the ATO using the form NAT 3036 (Found on the ATO website) and they need to also notify ASIC of their resignation.
Throughout that 6 month time period you will have to remove the Bankrupt from the SMSF– including their property and assets. Remember if you are uncertain call Gold Coast Bankruptcy Centre for some complimentary assistance on 1300 795 575.
What if I use a single member fund?
However, if you are a single member fund the Bankruptcy can be a bit varied as you will need to appoint a new director (as it can not be you from now on) you are going to need to make a lot of challenging choices with this therefore consulting with a specialist is going to be vital. You can get in touch with Gold Coast Bankruptcy Centre for some free assistance on 1300 795 575.
From that you can notice how when it comes to Bankruptcy, although one single member is managing troubles, it can have an effect on the very existence of an SMSF. If you are at this point facing this concern yourself, or with a partner in a SMSF, feel free to get financial advice to make sure you are meeting the ATO demands.
Bankruptcy is certainly never uncomplicated, but finding proper suggestions is the best initial step. If you wish to go over your options further, contact us at Gold Coast Bankruptcy Centre or visit our website: www.goldcoastbankruptcycentre.com.au or just call us on 1300 795 575.