Going Bankrupt Australia can be complicated and confusing. A question we typically get asked here at Bankruptcy Experts Melbourne is ‘what happens to my super if I declare Bankruptcy’? The solution for most is simple, if your super is usually in a regulated fund or industry fund like Sunsuper or Host Plus then virtually nothing happens; your super is 100 % safe when it involves Going Bankrupt.
What if I have a Self Managed Super Fund?
This is a growing concern, take into consideration the increasing number of members of Self-Managed Super Funds (“SMSFs”) in recent years; the ATO tells us it has expanded Australia-wide from 758,589 in 2009 to 1,011,689 in 2014. So what happens to these Superfunds when it comes down to Going Bankrupt?
Remember Bankruptcy Experts Melbourne is not indicating this post is the complete story, if you have any questions feel free to call us on 1300 795 575. Whether or not you call us or someone else it does not matter, just please don’t walk into bankruptcy blind when it comes to your SMSF actually we encourage you obtain both legal and financial advice before proceeding with any of the actions recommended in this article.
What is a Disqualified Person?
First and foremost, if you are taking into account Going Bankrupt, you can not be a part of a SMSF. Why? Because if you are coping with bankruptcy, you will be identified as a ‘disqualified person’. And a disqualified individual cannot operate as an Individual Trustee. This poses a problem due to the fact that usually most of the SMSFs are just 2 people, which means each of these members need to also be the individual trustees. The position of trustee poses a lot of legal rules, and if you are in this role I would highly recommend you to end up being familiar with them all– including the fact that you can not ‘know or suspect’ that one of you are bankrupt. So you can notice how an individual bankruptcy can be rather detrimental to a SMSF and as you can assume the process of Going Bankrupt for a SMSF is rather convoluted.
How long do I have so as to restructure my SMSF Fund once I’m bankrupt?
So what happens if one of the members of an SMSF does enter Bankruptcy?
For starters, the SMSF will have to be reorganized. This means that you will want to consider your extensive structure and ensure it is meeting the basic conditions, including having a new trustee that is not encountering issues with Bankruptcy. The Australian Tax office will give you a 6 month ‘grace period’ to get this done before you face penalties. And bear in mind, sometimes the best plan would be to simply roll the fund into an industry or corporate fund.
Beyond these large scale reorganizing issues, there is a lot of paperwork to deal with too, and you need to be constantly keeping the ATO informed of what is happening. This suggests you ought to let them know that you have a bankruptcy concern with your current trustee, that they are being removed as soon as possible know who the new trustee/director is. The Bankrupt will also need to inform the ATO using the form NAT 3036 (Found on the ATO website) and they will need to also notify ASIC of their resignation.
Through that 6 month period you will need to remove the Bankrupt from the SMSF– including their property and assets. Remember if you are unsure call Bankruptcy Experts Melbourne for some free advice on 1300 795 575.
What if I have a single member fund?
If you are a single member fund, then you will need to appoint a new director, and it will then be their duty to oversee the sale and relocation of assets into a managed fund. If there are two or more members, than the bankrupt member will need to resign and the other member will take away the property and halve the proceeds. They would then have to decide if they wish to remain as a single member SMSF, or if they would like to roll all of it into a managed fund. If both members are entering bankruptcy, then they will need to sell all assets immediately and transfer the liquid assets to the managed fund.
From this you can notice how when it comes to Going Bankrupt, even when one single member is running into issues, it can affect the very existence of an SMSF. If you are at the moment facing this matter yourself, or with a partner in a SMSF, please seek financial advice to make sure you are satisfying the ATO requirements.
A simple solution …
As I recommended earlier, a simple solution to your SMSF problem is to put your super back into a normal regulated managed fund prior to bankruptcy and save yourself all the problems outlined above. Going Bankrupt is never easy, but receiving proper advice is the best 1st step. If you want to discuss your possibilities further, contact us at Bankruptcy Experts Melbourne or visit our website: bankruptcymelbourne.com or just give us a call on 1300 795 575.