Residency Rules

Trustees must ensure that their SMSF remains an Australian SMSF. SMSFs that breach the residency rules are taxed at the marginal rate of 49% rather than the concessionary rate of 15%, so make sure that your SMSF qualifies as an Australian superannuation fund.

Trustees can set up and manage a self-managed superannuation fund from overseas if they are outside Australia temporarily. The ATO’s temporary absence rules generally allow a Trustee to be overseas for no more than 2 years, though exceptions can be made due to certain circumstances.

What is the test for Residency?

The SMSF should meet the following three criteria:

  1. The SMSF was established in Australia, or at least one of the SMSF’s assets must be located in Australia
  2. The central management and control of the SMSF is ordinarily undertaken in Australia; and
  3. At least 50% of the SMSF Membership must be in Australia, measured by market value (the Active Member test).

The 3 criteria are discussed below.

Criteria 1: Fund established in Australia

An SMSF is established in Australia when the initial contribution to the SMSF is paid to and accepted by the Trustees in Australia. The Trust Deed does not have to be signed and executed in Australia.

However, an SMSF established outside Australia will satisfy the test if at least one of the Fund’s assets is situated in Australia.

Criteria 2: Central management and control must be in Australia

According to the ATO, the central management and control involves the high-level decision-making processes and activities of the SMSF. The SMSF will be resident where the central management and control takes place.

Criteria 3: The Active Member test

The third test is the ‘active member’ test. This is satisfied when at least 50% of the market value or Fund value is held by active members who are Australian residents.

 

More information

Click here to view the ATO’s guidance on SMSF residency and find out more about super fund residency rules. Further, from the ATO Legal Database, see the relevance of the 2-year rule:TR 2008/9

The ‘two-year rule’

The central management and control of the fund can be taken as ordinarily in Australia even if it is temporarily outside Australia for periods of no more than two years. Unfortunately, the two-year rule is sometimes misunderstood. To clarify: it is not an exception available to all Trustees irrespective of the facts and intentions surrounding their absence.

If an absence is permanent, the two-year rule does not apply. Even an absence of less than two years could be ‘permanent’ and the central management and control could therefore be outside Australia (e.g. if a Trustee or Trustees departed with the intention of being away indefinitely but  returned after only 18 months due to ill health).

Conversely, in certain situations, an absence of more than two years may be acceptable. This could be the case for example if a Trustee, leaving the country with the intention of being away for a defined period of less than two years in order to fulfil some specific purpose, was forced to remain overseas due to unforeseen circumstances. In a case such as this, the ATO would normally be satisfied that central management and control of the SMSF continued to be ordinarily in Australia.

If 50% of the Trustees are in Australia and 50% overseas, the central management and control of the fund is in Australia if both sets of Trustees equally participate in exercising the central management and control, however, the ATO takes the view that this would rarely be the case.

Power of Attorney

Trustees can still be part of a SMSF even if they are overseas on a permanent basis. This is made possible by taking out a Power of Attorney for the management and control of the SMSF. While overseas, Members are . not allowed to contribute to the SMSF.

Click on the button below to see what you need to do to appoint a POA

 

 

  • Chris

    I’m hung up on the SMSF “residency test” (https://www.ato.gov.au/Super/Self-managed-super-funds/In-detail/Establishing-and-maintaining/Residency-of-self-managed-super-funds/)
    as tax residency makes an even bigger difference than I realized before leaving
    Australia!

    Relevant facts are as follows:
    • All the SMSF’s (the Fund’s) assets are in Australia;
    • All four members of the Fund left Australia in October 2013 for
    a contractual employment opportunity in USA. All four members of the SMSF
    intend to return to Australia in January 2015;
    • The SMSF (the Fund) was established in Australia prior to the
    October 2013 departure;
    • The Fund has two members / trustees (my wife and me). The
    other two members are my children (who are ineligible to be trustees due to
    their age); and
    • I am on paid leave from the Commonwealth Public Service and a
    member of the Public Sector Superannuation Scheme (PSS).

    My assessment of the Fund against the three components of the SMSF
    “residency test” is as follows:
    • “fund was established in Australia, or at least one of the
    fund’s assets is located in Australia”: Clearly satisfied;
    • “central management and control of your fund is ordinarily in
    Australia”: Satisfied given both trustees will be “temporarily out of
    Australia” for 15 months and therefore meet the “up to two years” of the ATO
    guidance; and
    • “your fund must have active members who are Australian [tax] residents
    and who hold at least 50% of the sum of the amounts that would be payable to
    active members if they decided to leave the fund.”: Satisfied since all four
    members remain tax residents of Australia during the period in the USA by
    virtue of my attachment to the Commonwealth Public Service and membership of
    PSS.

    There is no issue here (the Fund remains resident) and I was happy.

    I am now considering extending out my period of absence and
    therefore changing the last two of the original facts as follows:
    • I take Leave without Pay (ie. rather than paid leave) from
    the Commonwealth Public Service. I will remain a member of the PSS, although I
    will be inactive for the period of Leave without Pay;
    • All four members of the SMSF intend to return to Australia in
    January 2017 (not January 2015 as originally planned); and
    • I will likely buy (rather than rent) a house to live in
    while in the USA (but still maintain my house in Australia). This transaction
    will obviously be outside the SMSF!

    Assessing the Fund against the three components of the SMSF
    “residency” test:
    • “fund was established in Australia, or at least one of the
    fund’s assets is located in Australia”: Still clearly satisfied;
    • “central management and control of your fund is ordinarily in
    Australia”: The trustees will be “temporarily out of Australia” for over three
    years and fail the “up to two years” of the ATO guidance. However, we do intend
    to return to Australia in January 2017 and I can demonstrate this aspect (eg. I
    have a job, own property, am currently paying to hold a place at a private
    school for my kids etc); and
    • “your fund must have active members who are Australian [tax] residents
    and who hold at least 50% of the sum of the amounts that would be payable to
    active members if they decided to leave the fund.”: Satisfied since all four
    members remain tax residents of Australia during the period in the USA by
    virtue of my attachment to the Commonwealth Public Service and membership of
    PSS. The fact that my employer and I cease making contributions for the period
    of Leave Without Pay is irrelevant.

    Given I always intend to return to Australia, I believe the intent
    of the second component of the ‘residency test” is satisfied (and the Fund
    remains resident). However, this is inconsistent with the (necessary)
    definitive guideline provided by ATO. I therefore want to make sure of the
    outcome when applied by the Fund’s auditors and indeed ATO.

    A couple of questions arise:
    (a) Do you agree with the above logic (ie. my family and the
    Fund will be [tax] resident)?;
    (b) Who is the “umpire” of residency? Is it ATO or
    have they devolved it to accountants / auditors of the SMSF and / or self
    assessment?
    (c) Do I need to lodge a binding determination with the ATO (or
    the Fund’s auditor) to ensure this outcome is applied to the SMSF?
    (d) The residency test is phrased “in Australia”, but doesn’t
    define this term. By way of example, would it make a difference if the Trustees
    exercised the “strategic and high level decision-making processes of the fund”
    (eg. annual meeting) at the Australian Embassy in Washington (presumably part
    of “Australia”)?
    (e) The other solution I’ve heard suggested is to appoint
    someone as my representative (eg. my brother) who is physically within
    Australia. Is it simply a case of me (as a Trustee) assigning my authority to
    him (to sign annual returns etc) for the duration of my time in the USA? Would
    this make any difference?

    Thank you for your help.

    • Hein Preller

      Chris,

      The main criteria in assessing residency for an SMSF are the intention of
      Trustees. The ATO ruling is not always crystal clear in all cases. In the past, the
      ATO had a 2-year rule and if you went over this time limit, it was a strong
      indication the Fund could be a non-resident. However, if you stay overseas longer than 2 years but you can demonstrate your intention is to return to Australia on a permanent basis, the ATO will most likely consider the SMSF to be a resident Fund.

      There’s a list of criteria the ATO use to assess the intention of Trustees. These criteria is summarised as follows:

      – The intent and actual length of the taxpayer’s stay in the overseas country;

      – Whether the taxpayer intends to stay in the overseas country only temporarily or to leave Australia on a permanent basis;

      – Whether the taxpayer has established a home (in the sense of dwelling place; a house or other shelter that is the fixed residence of a person, a family, or a household), outside Australia;

      – Whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence;

      – The duration and continuity of the taxpayer’s presence in the overseas country; and

      – The durability of association that the person has with a particular place in Australia, i.e. maintaining bank accounts in Australia, informing government departments such as the Department of Social Security that he or she is leaving permanently and that family allowance payments should be stopped, place of education of the taxpayer’s children, family ties and so on.
      More info here: http://law.ato.gov.au/atolaw/view.htm?Docid=ITR/IT2650/NAT/ATO/00001

      Your last point on approving minutes at the embassy is a potentially valid point – I
      agree this is part of Australia and regarded Australian soil. Most likely not necessary to go to this extent though.
      Lastly, you can consider using a Delegation of Authority (Power of Attorney) if the nature of the Fund changes to a non-resident. This will ensure the central management and control remains in Australia.

      Trust this answer your questions.

  • Victoria Kong

    Residency issues

    2 members of a SMSF have gone overseas in Feb 2015. Did not appoint enduring
    power of attorney to an Australian resident as at this stage they don’t think
    they will be overseas for more than 2 years. The fund is due to settle a
    property under LRBA in June 2015.

    Questions

    – trustee company – does an Australian resident need to be appointed as
    director of the trustee company and a member of the SMSF?

    – Can the property under the LRBA still be settled in the super fund?

    – What options do they members have now to comply with the residency requirements? Can they still appoint an Australian resident to have power of attorney?

    • superannuationwarehouse

      Victoria,

      If Fund Members are overseas on a temporary basis, this would not breach any residency rules. In general, the ATO looks at the intention of Members to determine if they left Australia on a temporary or permanent basis.

      The question you raise is if a Fund can go about its normal business if the Members are overseas on a temporary basis. The fact that they want to purchase property does not have any direct relationship to the residency status.

      On your question if an Australian resident need to be appointed as director
      of the trustee company and a member of the SMSF – the Members would remain unchanged in the Fund and the POA if for the Trustee function only.

      On the next question – can the property under the LRBA still be settled in the super fund – yes, on the basis the Members are overseas on a temporary basis, the Fund can proceed.

      Please remember the property under LBRA can still be purchased in the Fund. However, a Bare Trust structure must be set up to facilitate the loan. The Fund owns 100% of the Bare Trust and has 100% ownership of the investment property. The main purpose of the Bare Trust is to keep title over the property until the loan is paid off. The property will revert back to the Fund when the loan is repaid.

      Trust this give you the answers you are after.

      • Victoria Kong

        Thanks Hein for your clarification.

        So, the most important issue is the intention of the members, i.e. if they left Australia on a temporary or permanent basis.

        If temporary, say, less than 2 years, then the super fund can go on its normal business and settle the property under the LRBA and the 2 members will still have to remain non-active, i,e, no contributions/rollovers for the members into the fund while they are not Australian tax residents.

        For the trustee company, the trustees should give Power of Attorney to an Australian resident to act as directors while they are overseas. Is this correct?

        • superannuationwarehouse

          Victoria,

          In the past, the ATO used 2 years as the benchmark. If you were overseas longer than this, it was regarded a permanent absence and you were not a resident.

          The approach is softer now and they look at your intention. They look at where you call home (place of abode per the ATO terminology), and this is where your residency is. So you can be overseas for several years and still be regarded a resident SMSF.

          Only when you note there is a residency issue, then you do the POA. The POA ensures the management and control of the SMSF remains in Australia, and therefore it will remain a resident Fund.

          Trust this is clear.

  • Greg

    Hello.

    I am a 51 yrs old Australian resident for tax purposes.
    I live in Australia permanently and am employed by a foreign company without an Australian office. I do work a 4 / 4 week rotation.

    I am paid in USD and pay income tax in Australia. My company pays an
    8% pension directly into the employee’s monthly salary and it is up to the employee what
    they do with it. They will not pay anymore and will only pay into one account in
    the employees name. How can I start an SMSF and take advantage of the $35k
    contribution threshold without being either;

    a. Self employed in Australia, or
    b. An employee of an Australian registered company.

    Can it be done ?

    Thanks

    • superannuationwarehouse

      Greg,

      We had a similar question to your situation before and contacted the ATO for guidance.
      Your observation is correct in that your situation its not:

      a.
      Self employed in Australia, or

      b. An employee of an Australian registered company.
      This sounds just unfair as you cannot add to your super in a tax-efficient way.
      Please leave it with me for a few days to get a potential answer.

      Hein

  • Victoria Kong

    Hi,
    Can non active members do rollover into their SMSF while they are overseas if the rollover was fund contributed in the past while the members were active and resident members?
    Thanks.

    • superannuationwarehouse

      Victoria,

      You can roll over if you are overseas on a temporary basis.

      When the majority of the members (by value) are overseas on a permanent basis, a Fund can be made non compliant.

      It is usually quite easy to set an argument forward to prove the member is overseas on a temporary basis.

      Thanks
      Hein

      • Wills

        Hi, I’m asking the same question as Victoria but my accountant informs me that I cannot roll over funds from my retail super into our SMSF. Which is puzzling because the funds in my retail super were contributed while I was an Australian resident for tax purposes. Please clarify.

  • Cyril Nathaniel

    Hello,
    Someone age 55 from NZ living in Australia set up a SMSF. Now going back to NZ permanently. Would they access their super? any tax implication?
    Thanks

    • superannuationwarehouse

      Cyril,

      If its an SMSF and the majority of Members leave Australia permanently, the SMSF will be regarded as non-resident and therefore non-compliant.

      The two options are:
      1. Appoint a Power of Attorney to ensure the management and control of the Fund remains in Australia, hence keeping it as a resident Fund; or
      2. Roll the balance to a retail or industry super Fund where you will not have residency issues, as the majority of Members are resident.

      Trust this answers your question.

  • Alex Druk

    I am a sole member of a super fund trustee. I am 62 and my fund is in pension phase. I have got my house and mortgage in Australia. My daughter is in Australia too.
    I am divorced.
    I have been away from Australia since 2011.
    For 2 years I was not working, traveling the world. In 2013 I have got employment in the Netherlands with 1 year contract. In July 2014 I submitted my SMSF tax return and was treated as an Australian resident with intention to return to Australia during the 2014-2015 financial year. However, the circumstances changed, I was given another 1 year contract and my health has deteriorated at the same time. Currently I do not have Australian health cover and using my Dutch health cover for the treatment.I did not return to Australia as I had expected.
    Now, with the end of the 2014-2015 financial year is coming up, my fund is under threat of becoming non-resident. Is it possible under these circumstances to apply for an extension of my Super Fund residency status?

  • Dan

    Hi, I am moving overseas permanently but have an SMSF with just 100k in it, wrapped up in managed funds that I will probably never touch until retirement 20 years away, (I also have a company super account). Do I have to wrap the SMSF up even though I wont touch it and ‘may’ return to Australia to retire?

    • Hein Preller

      Dan, if you are the only Member of the Fund or have a majority interest in the SMSF, you need to be a resident for the Fund to be considered a compliant SMSF.
      If you leave Australia on a permanent basis, the two most likely options are to:
      1. Roll over to a retail superannuation fund; or
      2. Appoint a POA to ensure the management and control of the Fund remains in Australia, making it a resident Fund.

      Trust this answers your question.

  • Dan

    Thank you that does answer my question.

  • Steve K

    Can one individual act as Power of Attorney for both directors of a corporate SMSF trustee, or does each director need a different individual to act in the Power of Attorney role?

    • superannuationwarehouse

      Steve,

      This is almost more of a legal question rather than accounting. Remember we are an accounting firm. So my answer is not from a legal perspective.

      Each Director can do a POA. If Each Director happen to give the POA to the same person, its one person representing the Corporate Trustee. Within the Corporate Trustee, the POA represent 2 parties, the Trustee 1 and Trustee 2. I do not see any issues with this.

      Trust this gives you some guidance.

  • Matthew L

    Hi,
    I am currently residing overseas, and am considered a non-resident for tax purposes. I opened a SMSF in September 2014. I will be returning to Australia early 2016. My wife and I are the only trustees of the account. Because I am a non-resident for tax purposes, I assume that means I would likely fail the residency test – would this be correct? I have a power of attorney, although I haven’t specifically allocated them to the SMSF – is this something I have to do? We have not been contributing to the SMSF during our absence.
    What are the implications of being non-complying? Will I have to wrap it up and move back to a retail fund, or could I keep it open and just pay 45% on any income or gains?

    • David S

      Hi,
      I was wondering if you ever got anymore information about this? I am currently residing overseas as a non-resident for Tax purposes and would like to setup an SMSF before i return back to Australia to live and work.

      • Matthew L

        Hi David,

        Yep, I finally had to reach out to the ATO through some tax lawyers to get an answer. Without going too much into it, you cannot set up a SMSF (legally) until you are back in Australia. The implications are that you do not meet the residency test and therefore you are subject to a 45% levy – ON THE ENTIRE AMOUNT!! since the rollover is treated as a contribution in this case. I was able to reach an agreement with the ATO in my case to wind up the SMSF immediately and avoid this.

        So, long story short, wait til you get back to Australia before you set it up.

        Good luck!

        • David S

          Hi,

          Thanks for the information.

      • superannuationwarehouse

        David, the residency rules makes it too much of a grey area to set up an SMSF when you are overseas. In addition, most banks will require you to be in Australia when opening up a bank account.

        Best would be to wait until you are back in Australia before setting up the SMSF.

        • David S

          Bit of a shame, would have been nice to have it all sorted before returning home. Oh well.

          Thanks for the information.

  • Confused by SMSF

    Is a SMSF required to have an active member at all times? My wife and I are overseas and non-resident. Before we departed we both appointed a Legal Personal Representative (via a Power of Attorney). We are the funds only members and are both non-active. I am unsure if the fund still requires an active member in our circumstances. I assume not – but am unable to find a definitive answer. Any thoughts or suggested further reading would be appreciated.

  • Wills

    Hello,

    My husband and I are trustees of our SMSF. We are temporarily overseas for
    employment. Are we able to roll-over funds from our retail superfund into our
    SMSF without breaching SMSF residency rules, more specifically the active member rule?

    My accountant tells me I cannot make contributions or roll overs but in one of
    your Q & A’s it says you can make a roll-over whilst overseas.
    I know the active member test refers to contributions and in some articles I’ve read, contributions includes “roll over benefits”. My reasoning is that the funds for the roll over were contributions made while we were still Australian residents for tax purposes.

    Any assistance is greatly appreciated.

    • superannuationwarehouse

      Wills, if you are overseas on a temporary basis, no problem, you can operate your SMSF as per normal. It may be an issue to set up an SMSF while overseas. But the operating from overseas is no issue. People travel and transfer for work overseas all the time.

  • Harjit

    Hi,

    If there are two member in SMSF can they give POA to two different persons.

    Example
    Member “A”
    Member “B”

    Both Member A & B give POA to Mr “C” & Mr “D”

    Or

    Member A give POA to Mr C
    &
    Member B give POA to MR D

    Regards
    Harjit

  • SMSF

    Hi,

    I have a question relating to SMSF – Residency.

    We have a SMSF & both directors have now become a non tax residents as our permanent place of abode is overseas. Therefore, our SMSF is technically non compliant.
    How long do i have to shut the SMSF down post becoming a NTR as i need to liquidate assets? If i have the fund assets sold and SMSF wound down by 30 June would that be ok?
    Would you have any TR or cases that are similar to this.

    Really appreciate your assistance on this !

    Thanks.

    • Hein Preller

      At the time you become a non-resident, so would the SMSF.

      Remember you can use many arguments noting why you are still a resident, for example your work overseas is temporary, employed from Australia, main residence in Australia, banking affairs in Australia, medical records kept here etc.

      Another alternative is to appoint a POA ensuring the management and control remains in Australia.

      Having the Fund as non-compliant has harsh tax consequences, so best is not to go there.

      Trust this helps.

  • superman

    Hi,

    Do you have any economical recommendations regarding what to do with a SMSF in the following case?

    – US citizen, moving overseas (leaving Australia)

    – permanent visa still active and cannot be cancelled (meaning the funds cannot be released without a significant tax hit – so not an option)

    – prefer to invest in a variety of securities, including precious metal ETFs.

    I noticed some places will not accept US citizens for their supers (ie IngDirect). I’m looking for a place which will accept US citizens not living in Australia.

    Any advice would be appreciated.

    Thanks

    • Hein Preller

      superman,

      The potential issue you are faced with is that if you do leave Australia on a permanent basis, the Fund may be made non-compliant. By far the easiest option is to wrap up your SMSF and transfer all funds to a retail super fund, for example Australian Super. As most members in these retail funds are local, this fund will be regarded a local compliant Fund.

      The potential issue is if there’s assets in the SMSF that is not easily convertible to cash or you prefer to invest in asset classes not offered by the retail funds. In this case, you can either:
      1. argue you are absent from Australia on a temporary basis and continue the SMSF

      2. appoint a POA, thereby ensuring the management and control of the Fund remains in Australia.

      Trust this gives you the answers you are after.

  • mr_squigle

    My wife & myself have a SMSF and have for many years. We are hoping to move to America and obtain residency there. As directors I understand that to remain compliant we would have to appoint a new director to keep the fund compliant. Thus being residents of America could we keep receiving a pension without being hit with the top marginal tax rate. Also if & when we move back to Australia could we then take control of the fund.

  • Derek

    Currently there are 3 members in our SMSF. One of the members is intending to move overseas for an extended period. In other words, planning to be non-Australian resident for tax purpose.

    From this article I do not see why there is a need to wrap up the SMSF and transfer benefits of all members to a retail fund. Correct me if I am wrong of course.

    What is the problem if we only make one of the 3 members exit the SMSF? When ringing ATO they also said if only one member wants to leave Australia permanently the member has to exit from SMSF but they do not mention the SMSF has to be wrapped up as what I see in the comments given below.

    Can we argue that this member holds less than 50% value of the overall SMSF asset values therefore this member does not need to leave the fund?

    • superannuationwarehouse

      Derek,

      If a Member with a minority interest in an SMSF move overseas, I agree with you, its not a requirement to close down the Fund. To ensure compliance, make sure your Fund meets all three criteria in the Residency test as explained in the page above.

      If a Member is overseas on a temporary basis, the Fund can continue operating. If a Member leaves on a permanent basis, a possibility is utilising a Power of Attorney for that particular Member. For more information follow this link:

      http://www.smsfwarehouse.com.au/smsf-education/power-of-attorney/

      Trust this gives you the answers you are after.

  • SML

    If an SMSF contains shares in an unlisted company and the members are heading overseas long term (not necessarily indefinite, but more than 2 years) then industry/retail funds are not an option (unless other arrangements are made for the unlisted shares). The options as I understand them are to arrange a POA or, I’m told, to transfer to a Small APRA. What are the pros and cons of choosing one path over the other? All advice much appreciated.

    • superannuationwarehouse

      SML,
      You are correct in that a retail fund will not take on unlisted shares you have in the SMSF, or for that matter any other assets the SMSF owns, apart from cash.
      The cost of a small APRA Fund is usually prohibitively expensive and only Trustee companies can manage these funds. We are an accounting firm, so if you were with us, the only route is to either ensure residency or do a POA, ensuring the SMSF remains resident.
      Trust this gives you some guidance.

      • SML

        thank you for the prompt response. Much appreciated. queries please::

        If the fund can’t ensure residency are there negatives to having a POA?
        Can the fund ( through POA) be active?
        Must the POA meet certain criteria ( other than residency)?
        Can the members make contributions ( happy not to )?

        Again – many thank.

        • SML

          – apologies – I have just found the link to your page answering the bulk of the above ( and to the ATO). I expect the answers will be there.

          Thank you.

  • CMS

    Hi there – looking for some advice. Currently have a SMSF with two members/trustees who were both due to be overseas for work for 2 years so satisfied the rules. This period has been extended with another overseas job posting opportunity. We would like to continue to hold our SMSF as we are intending to return to Australia once this new opportunity is completed. Can you please confirm the best way to do this without the extra tax implications?

    • superannuationwarehouse

      CMS,
      We don’t give advice on what you should do in your SMSF, but I can tell you what the rules are and it is up to you to operate within these rules.
      If your intention is to come back to Australia, the posting will be regarded as temporary in nature. There is a 2 year rule that is the benchmark for temporary absence. The intention of Trustees are also assessed. So if you place of abode is Australia, you absence is regarded as temporary. Factors the ATO considers in determining residency is where you primary residence is, where medical records are kept, your intention to return to Australia, where holidays are spent and where you call home.
      The ATO page has good guidance on this as well, see here:
      http://law.ato.gov.au/atolaw/view.htm?DocID=TXR/TR20089/NAT/ATO/00001&PiT=99991231235958
      Another option to consider is appointing a POA, but do this when you are in Australia. More guidance here:
      http://www.smsfwarehouse.com.au/smsf-education/power-of-attorney/
      If unsure, ask for written advice from the ATO. We can do this for the Funds we manage:
      http://www.smsfwarehouse.com.au/running-smsf/ato-specific-advice/
      Trust this steer you in the right direction.

  • Richard

    I currently live in NZ for 10 years, I was born in Aust and have super in both countries. My wife is born in NZ but also has super in Aust(she lived for 6 years). Are we able to establish a SMSF?

    We are unlikely to return in the near future so I can’t see us satisfying the residency test

    • Hein Preller

      Richard,
      I cant see you meeting the residency test either. The 2 areas of failing to meet the criteria of residency are:
      1. You are not in Australia at the time when the SMSF is set up
      2. Your intention does not seem to be to live in Australia.
      Therefore, as you are the will and mind of the SMSF, the residency criteria is not met.

  • Shane

    I have lived in Ireland for the last 11 years. My mother still lives in Australia and is my power of attorney. Am I able to set up a SMSF with my Australian super?

    • Hein Preller

      Shane,
      If you are not in Australia when setting up an SMSF, the Fund will not be regarded as compliant. Also, when you as Trustee don’t live here, there is a risk the SMSF can be regarded as non-compliant and then taxed by the ATO at a rate of 49%.
      Best to not even risk this.

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