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SMSFs are tightly regulated and SMSF trustees must ensure investment in this asset is permitted by the SMSF trust deed and is aligned with the fund’s investment strategy.

It is common for SMSF trust deeds to have a clause that permits the SMSF to invest in any other type of asset permitted by the Superannuation Industry (Superannuation) Act 1993 and Superannuation Industry (Superannuation) Regulations 1994. If this is the case, the deed may allow an investment in bitcoin but SMSF trustees should always obtain professional advice to confirm this.

SMSF trustees have responsibilities to:

• act honestly in all matters concerning the fund,
• act in the best interests of all fund members when making decisions about the fund,
• manage the fund separately from their own affairs,
• know, understand and meet their responsibilities and obligations,
• ensure that the SMSF complies with the laws that apply to it.

Investor protections are arguably one of the most important factors to consider for SMSFs holding digital assets. As the crypto asset industry is largely unregulated, trustees need to seriously consider the risks involved in holding them via regulated pathways versus unregulated pathways.

An unregulated pathway is, for example, holding the SMSF’s bitcoin on a Digital Currency Exchange (DCE). The problem with this approach is that most exchanges state in their terms and conditions that the legal title for the holdings on the exchange rests with the DCE (and not the account holder). Not only could this cause issues during annual audits, it could also mean that if anything goes wrong and the DCE becomes insolvent, the trustee’s rights to the SMSF’s bitcoin would only be as an unsecured creditor.

There are also the risks of hacking and theft from DCEs which may or may not be appropriately managed given the largely unregulated space in which DCEs operate.

Finally, self custody (i.e. the bitcoin is stored in a wallet owned by the SMSF) has its own very distinct risks such as the risk of lost keys or passwords.

Alternatively, an SMSF can gain bitcoin exposure through regulated investment vehicles that professionally manage the risks associated with holding bitcoin as an investment.

For example, Exchange Traded Products (ETPs) that passively track the price of bitcoin, allow SMSFs to gain regulated exposure to this asset without having to manage the risks of self-custody or holding the bitcoin on an exchange. Legal title is also easily established by ensuring interests in the ETP are purchased in the name of the SMSF.

However, not all ETPs offer the same risk profile, and trustees need to carefully consider the offer document to ensure an investment in the ETP is appropriate for the SMSF.