Registered schemes' constitution

By Marc Kemp
Funds Tax

In brief

ASIC has said it will grant relief to assist responsible entities (RE) of registered schemes to make changes to their constitutions to qualify for the new attribution managed investment trust (or AMIT) regime without holding a unitholders' meeting. Partner Marc Kemp and Law Graduate Antonia Ross review the key elements of the announcement.

Key elements

  • Purpose: the proposed relief is expected to assist REs to implement the new tax system for management investment trusts (which commenced on 5 May 2016) by allowing them to make changes needed to benefit from the system without getting unitholder approval.
  • Relying on the relief: to rely on the relief, REs will need to post a statement on their websites explaining their intention to amend the constitution, their reasons for doing so, the effect of the proposed amendments and unitholders' right to request a meeting if they would prefer a meeting to be held.
  • Meeting of members: a meeting to approve the proposed amendments will need to be held if 5 per cent or more of the total number of members request a meeting within seven days of the RE's statement being posted on the schemes' website. If no request is made, the RE will be permitted to amend the constitution without unitholder approval.
  • ASIC instrument: ASIC aims to release an instrument giving effect to this relief on or before 22 June 2016.

What does it all mean?

REs should consider if their scheme constitutions require any amendment to take advantage of the AMIT regime, and (if they do) prepare an accompanying statement to be placed on the scheme's website. Of interest will be the extent of the changes that the relief permits to be made to scheme constitutions.

REs will also be granted relief from the duty to treat members who hold interests of the same class equally to the extent that it prevents an attribution being made under the new tax system.

We will provide an update when the instrument is available.