Appreciate for your input Kenneth.

ATO in below link states where asset can not be held under fund name i.e. restriction in the state law, in that case perhaps custodian trustee may apply.

In property situation where corporate trustee is in place, this situation do not arise in any state jurisdiction.

I found below from ATO portal:

"You need to manage your fund’s investments separately from the personal or business investments of members, including your own. This includes ensuring the fund has clear ownership of its investment assets."

further it states "To protect fund assets in the event of a creditor dispute, and prevent costly legal action to prove who owns them, assets should be recorded in a way that ...

• distinguishes them from your personal or business assets

• clearly shows legal ownership by the fund.

https://www.ato.gov.au/individuals-and-families/super-for-individuals-and-families/self-managed-super-funds-smsf/investing/ownership-and-protection-of-assets

Reg. 4.09A only has two conditions, must be separate from personally held by the trustee ( i.e. under individual names), second, separate from employer sponsor or an associate of employer sponsor", It seems asset in that case can be held under custodian trustee name. But ATO guidelines put condition that where "asset can not be held under fund name".

It is common for assets to be held in a custodian relationship in SMSFs. For example, many wraps are a custodian relationship where the assets are held in the name of the custodian, not in the name of the fund. Clearly the ATO do not consider wraps to be a contravention of reg 4.09A.

As long as there is documentation evidencing the custodian relationship, there is no contravention of reg 4.09A. There is also no problem with a custodian relationship in terms of the notes from the ATO website. In a custodian relationship the assets are clearly distinguished from personal and business assets. And the custodian documentation (if drawn up correctly) clearly shows the legal ownership by the fund.

Appreciate your response.

I understand law do somehow permit or say do not elobrate for the fund to not hold assets under any entity name, though it may not be corporate trustee of the fund.

If entity is not corporate trustee, no loan was in existence, how it can be inferred that it belongs to a suepr fund, hence protected from personal liability claim ?

I wonder if ATO expects ACR lodgement in this senario because S67A structure do not exists which allows property to be held under custodian trustee.

My understanding is ATO is currently preparing guidelines for Reg. 4.09A Separation of Assets.