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I have a fund with 3 members. One is resident and 2 will be moving overseas for three years The 2 non resident trustees will provide resident trust with POA to act on their behalf. Are the 2 non resident trustees required to be removed to ensure the SMSF retains residency status or is 1 resident director with POA enough to ensure management and control resides in Australia?
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Hi Lina
Following on from my comments above I also refer to SIS & another option.
Section 17A(3) of SIS states that other persons may be trustees and that:
"(b) the legal personal representative of a member of the fund is a trustee of the fund or a director of a body corporate that is the trustee of the fund, in place of the member, during any period when:
(i) the member of the fund is under a legal disability; or
(ii) the legal personal representative has an enduring power of attorney in respect of the member of the fund".
That is the above allows the non-residents to resign as a trustee or as a director of the trustee company. Under an enduring power of attorney they appoint an Australian based person to act as trustee or director of the trustee company on their behalf. The examples that I have been involved with over the years have done this.
Preferably specialist legal advice is sought by the trustees if they have concerns re the residency tests.
Thanks
SMSF AAA