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Gulshan Ahuja

Mar 23, 2021

Change of SMSF Name & ABN Cancelled by ATO

in SMSF Technical Forum

Please provide some guidance on audit in the case of a fund with following issues:

The fund was established in 2011 and then changed its name in 2014 but SMSF deed is still under the old name BUT ABN Look up has changed name for the same ABN.
Fund never lodged tax return since 2015, ABN look up shows ABN is cancelled
Members changed their names as well BUT correct changed names are in ASIC extract
No variation of the deed were ever prepared But there may be unsigned minutes
One of the two directors of the trustee company is disqualified to be a director.
The fund rolled over benefits to another SMSF in 2018 which also never lodged a return.
The Bank closed the bank account for the new SMSF in 2018 and issued a bank cheque which was never banked and is now stale
SMSF is talking to bank and getting a new bank cheque issued.
Same issue with director as above

2 answers1 reply

Comments (3)

THE AUDITORS INSTITUTE

Mar 24, 2021

Hi Gulshan

Thanks.

A disqualified person cannot be a trustee or a member of a Fund. They cannot have their personal legal representative act as trustee on their behalf and remain a member of the Fund.

A legal personal representative can be used to replace deceased members and non resident members as a trustee.

Given the issues raised the Fund / Trustees should consider getting specialist SMSF / legal advice to rectify the various issues.

Thanks

SMSF AAA

THE AUDITORS INSTITUTE

Mar 24, 2021

Hi Gulshan

That sounds a very messy Fund or Funds.

My thoughts are below. I am not sure if the below will be of much assistance given there are multiple issues.

Re the change of name of the Fund you would require a signed copy of the "deed of name change".
Re Super Fund look up normally the ABN has not been cancelled but "regulation details removed". Outstanding returns should be lodged.
Members have changed names & ASIC has been advised. Has ATO been advised re their name changes?
Need to obtain signed minutes re deed of variation.
Re disqualified director of trustee company, they should resign as director. They are also required to advise the ATO immediately in writing re their disqualification.
Did the Fund rollover benefits to a Fund that had its "regulation details removed"? This Fund will need to get its outstanding returns lodged.
Bank should be able to reissue a stale cheque.
Noted.
Director issue is as per 5) if they are disqualified.

The main options for a disqualified trustee is to rollover their benefits to an APRA Fund (eg an Industry Fund) or to a Small APRA Fund (SAF).

Thanks

SMSF AAA

Gulshan Ahuja

Mar 24, 2021

Replying to

Thanks for the reply, just confirming one thing "can disqualified director still stay as a member and give power of attorney to someone to act as director on his behalf?"