Member Leaving a SMSF

In exiting the Member from the Fund’s Membership register the Trustee has conferred with its advisers and note the following is to be completed before the Member leaves:

1. Determine the Member’s balances in the Fund
2. Prepare an exit statement detailing the Member’s balance
3. Remove the Member as Trustee or Director of the Fund’s corporate Trustee
4. Ensure the Trustee has the correct Tax File Number for the Member in order to notify the ATO of the Member leaving the Fund
5. Notify the Member of any loss of insurance
6. Calculate any, if applicable, pay as you go tax liability in relation to any withdrawal or transfer of superannuation benefits
7. Pay any superannuation benefits to the account of the leaving Member choosing
8. Notify the Commissioner of Taxation of the Member leaving the Fund through one of the following:

• online at abr.gov.au
• through a registered agent
• by phone 13 10 20 – you must be the authorised contact for your SMSF
• by lodging the paper form Change of details for superannuation entities (NAT 3036)

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However in some complex areas such as the insertion of a varied range of client instructions into a Will or other such documents the user must be mindful of the extent to which a document is being drafted by the user rather than merely the administrative task of completing a form where the relevant fields are inserted into the reviewed and signed  legal document provided by Abbott & Mourly.

The above advice is born out of numerous cases dating back to Re Sanderson, Ex parte Law Institute of Victoria [1927] VLR 394, 397 where the Court held:

“if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with action usually taken by a solicitor – I think he then does act as a solicitor.”

Likewise in ACCC v Murray (2002) 121 FCR 428, 448 where Murray was building a franchise business that involved the legal writing and drafting of Wills from scratch based on the client’s personal circumstances.  The Court held that this process was legal work.

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