Can I use my own constitution to register a Superannuation Trustee Company with Patricia Holdings?
Of course you can. In order to meet ASIC’s eligibility requirements of a special purpose superannuation trustee company and take advantage of the reduced annual review fee, you will need to make sure that the constitution:
- prohibits distribution of the company’s income or property to its members; and
- specifies that the sole purpose of the company is to act as the trustee of a regulated superannuation fund within the meaning of section 19 of the Superannuation Industry (Supervision) Act 1993.
Can the Super Trustee Company’s capital and profits be distributed to the members?
The company may only act in the capacity of trustee of a regulated super fund. Any assets the company holds must be held for the benefit of the members of the super fund. The capital and profits of a super trustee company cannot be distributed to the members. This should be written in the company’s constitution in order for the company to be eligible for ASIC’s concessional annual review fees.
What happens to the assets of a Super Trustee Company on a winding-up?
All assets held by the company are being held for the benefit of the super fund. This means that on a winding up of the company, the assets would either be distributed to the members at their retirement, or they would be transferred over to a new trustee – this transfer could only be to a different trustee company, to the members in their capacity as individual trustees, or, to an industry super fund.
What is a Self-Managed Super Fund (SMSF)?
A self-managed superannuation fund is a trust structure that provides benefits to its members upon their retirement. The difference between a SMSF and other superannuation funds is that they are, as the name suggests, controlled by the members of the fund. That means the members are also the trustees running the fund for their own benefit. In the case or a corporate trustee, all eligible members of the fund must also be directors of the trustee company.
What would be the point of having different classes of shares in a super trustee company?
A company can issue different classes of shares with the rights and restrictions attached to them relating to distributions, voting and receiving notice of meetings, distinguishing it from other classes. A super trustee company has several restrictions on it though which we believe would make issuing different classes of shares futile.
The company is not only prohibited from distributing it’s income or property to its members, it is only permitted to act as trustee of a regulated superannuation fund meaning it wouldn’t be holding any assets for the benefit of its members or deriving any income anyway. Decisions made by the company on behalf of the super fund are made by the trustees of the fund (the directors) in accordance with the Superannuation Industry (Supervision) Act 1993.
It is for these reasons that the Patricia Holdings Super Trustee Constitution only allows for ordinary or preference class shares to be issued at the time of registration. There is however a clause in the constitution that allows members to issue new classes of shares and vary their rights by way of special resolution as they see fit.
Is a Superannuation Trustee Company considered an ASIC special purpose company?
Yes, the Patricia Holdings Superannuation Trustee Company is considered a special purpose company according to ASIC and is eligible for the reduced annual review fee.
The legal requirements for a special purpose superannuation trustee company are set out in section 3(f) of the Corporations (Review Fees) Regulations 2003 under the Corporations Act 2001 (Cth). The regulations state that the constitution:
- prohibits distribution of the company’s income or property to its members; and
- specifies that the sole purpose of the company is to act as the trustee of a regulated superannuation fund within the meaning of section 19 of the Superannuation Industry (Supervision) Act 1993.
The Patricia Holdings Super Trustee Constitution complies with these regulations.
