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The Australian Tax Office has sent caution letters to the operators of 2,000 SMSFs about illegal ‘divided washing’ practices, as trustees are again being told to take heed of warnings or risk facing tough new penalties.
The advice follows a string of <a href="https://www.smartcompany.com.au/finance/investment/42864-smsf-trustees-warned-not-to-take-financial-advice-from-real-estate-agents">recent warnings about SMSF trustee obligations</a> and the introduction of <a href="https://www.smartcompany.com.au/finance/superannuation/42422-eight-things-you-need-to-know-to-get-your-smsf-ready-for-the-end-of-the-financial-year">weighty new penalties brought in</a> at the start of this month.
In a <a href="https://www.ato.gov.au/Media-centre/Speeches/Other/Update-from-the-ATO-on-recent-compliance-activity,-areas-of-concern-with-SMSFs-and-the-ATOs-future-priorities/">speech</a> given at the CPA Conference yesterday, ATO assistant commissioner Matt Bambrick revealed the tax office had sent around 2,000 self-amendment letters to SMSFs it identified as having potentially implemented a share trading strategy known as dividend washing.
The warning cautioned SMSF trustees that such a practice was a breach of tax rules.
Crowe Horwath tax director Tim Holloway told SmartCompany dividend washing, which is based on a specific tax ruling, is a strategy to gain double franking credits on shares.
“It occurs where you have any type of entity that owns shares in a company, which then sells those shares ex-dividend,” says Holloway.
“Which means, when the shares go to a new owner, the new owner does not have the entitlement to get the franking credits. Even though they’re selling the shares, the previous owner still has an entitlement to the franking credits.”
Holloway explains that when an entity then buys the same number of shares in the same company, on what is called “special market”, which trades on a different basis to the normal market, they are effectively buying shares that still have an entitlement to the franking credit and therefore doubling their credits, despite owning the exact same amount of shares.
“They have the credits attaching to the shares they sold, and they have managed to actually get credits because they bought on this special market,” says Holloway.
“The ATO holds the view that the only reason you’ve done this, is to get that benefit of the double franking credits, because if you didn’t get that benefit the transactions would not be commercial,” he says.
Holloway says while it is hard to tell how common the practice is, the fact the ATO sent out 2,000+ letters implies it has seen incidences of dividend washing, or what look to be dividend washing.
“Clearly they are a few of these incidences and the ATO are acting upon it,” says Holloway.
Holloway says the penalty the ATO might impose on an SMSF found to be dividend washing would depend on whether the actions were found to be done on purpose.
“If they feel that it’s deliberate, then you can get hit with pretty significant penalties,” says Holloway.
In his speech, Bambrick highlighted additional “emerging risks” for SMSFs to be aware of, including: the potential to contravene purposes tests by attending overseas SMSF conferences; dividend stripping, where a company distributes retained earnings to a member just as they retire; and illegal early release of super benefits.
Bambrick said the new penalty regimes allowed the ATO to impose penalties that were more in line with a breach than it previously could.
“The accuracy and independence of SMSF auditors has always been critical to our compliance monitoring but now we’ll be relying even more on these auditors to identify and rectify minor breaches,” said Bambrick.
“In dealing with non-compliance by SMSF trustees, we may take one or several courses of action, depending on the seriousness of the contravention and the circumstances involved.”
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>.
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ATO cracks down on dirty SMSFs, warning against ‘dividend washing’ 

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Self-managed superannuation fund experts have hit back at claims SMSFs are getting a tax-free ride through franking credits and tax exemptions, saying these tax minimising tools are available to all super funds.
As reported by <a href="https://www.afr.com/p/national/how_almost_smsfs_avoided_tax_bOEp84dAnoopreCGMKkE0J">Fairfax</a>, statistics from the Australian Tax Office show almost 300,000 SMSFs were able to eliminate or minimise tax on their super and net $2.5 billion in franking credits in 2011-12.
In that year, 424,360 self-managed funds generated gross taxable income of $32.9 billion, but $15 billion of that was entirely exempt from income tax because the funds were in the pension phase, according to Fairfax.
But two SMSF experts have said those claims are largely sensationalised and trustees were working within tax rules that have been in place for a long time.
“This is nothing new,” says Kathy Evans, principal of superannuation and SMSF at Crowe Horwath.
“[SMSF trustees] are just working with rules, and they are no different to other structures that help taxpayers minimise their tax.”
Because SMSFs invest in shares, they are credited the tax paid by the companies they invest in the form of franking credits. They are essentially subsidised on their 30% tax rate by the company, because otherwise the ATO would receive two lots of tax on the same investment.
But Graeme Colley, director of technical and professional standards at the SMSF Professionals’ Association of Australia, says most of the large super funds also invest in shares and are also entitled to these franking credits.
“If you a shareholder – it doesn’t matter who you are… you are entitled to them,” says Colley.
Colley says there are no further tax exemptions offered to SMSFs that are not also offered to other super funds.
“There are no words in the legislation that say, ‘this is how SMSFs get taxed and this is how the big funds get taxed’. They’re all taxpayers,” he says.
Evans says these tax rules have been in place since the 1990s and SMSF trustees are just working within the rules to get the most of out their retirement funds.
She says suggestions SMSFs are purely for the wealthy are inaccurate, and she sees many trustees who could not be classified in that category.
“These people have worked hard all their life, they’ve paid their tax and have got plans in place to assist with their retirement. They are working within the legislation,” says Evans.
Both Colley and Evans say calls to get rid of franking credits or to change the dividend imputation system of taxation should be viewed with caution.
“It may become a disincentive. If they mess with the rules, people will lose interest and I don’t think that’s a good thing,” says Evans.
“We need more people saving for their retirement.”
Colley says if you change legislation for SMSFs, then it will need to be reconsidered across the board.
“Picking on one set of taxpayers is unfair,” he says.
This article first appeared on <a href="https://www.smartcompany.com.au" target="_blank">SmartCompany</a>.
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SMSFs don't get a free tax ride, experts say

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Suggestions that young and naïve investors are rushing to set up self-managed super funds have been debunked by figures from the Australian Taxation Office.
Graeme Colley, director of technical and professional standards at SMSF Professionals' Association of Australia (SPAA), told SmartCompany that despite an increase in <a href="https://www.smartcompany.com.au/finance/superannuation/35704-younger-generation-interest-in-smsf-on-the-rise">popularity with the younger generation</a>, the latest statistics show SMSFs are still very much the heartland of the wealthy and the mature.
“From what we see, it’s still the 50 plus category,” says Colley.
The September ATO figures show the greatest proportion of SMSFs are funds of between $200,000 and $2 million. The number of funds within this range has risen from 63.9% in 2009-10, to 65.7% in 2012-13.
In contrast, funds under $150,000 have been in a decline over this four-period from 20.5% to 17.2%.
Colley says there has been unfounded media speculation young people were rushing into setting up SMSFs.
“What the industry didn’t want to see happen was people brashly going into SMSFs without seeing if it was the right option for them. But we are not seeing that from these figures,” says Colley.
Colley says while the popularity of SMSFs is certainly on the increase, there has been a “steady as she goes” approach to SMSF investment.
“It’s more of a ‘look before you leap’ situation, we don’t want a runaway freight train,” he says.
Colley believes there has recently been a considerable focus given to the education and training of SMSF managers, in the wake of <a href="https://www.smartcompany.com.au/legal/politics/44700-fofa-changes-scrapped-by-senators-as-financial-planners-plead-for-certainty" target="_blank">changes to the financial planning industry.</a>
He says the ATO statistics also put to bed the myth that SMSFs with low balances have an "unhealthy" concentration of their assets in residential property.
“That doesn’t seem to be the case. Funds with property investment seem to be in the $300,000-$400,000 plus range. It is a common sense investment, rather than people with massive mortgages.”
"The notion that SMSFs are piling into residential property with their ears pinned back is simply not supported by the ATO figures,” says Colley.
The SPAA expects another 20,000 SMSF will be created in 2015.
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>.
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SMSFs still the heartland of the mature and wealthy 

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Self-managed super fund trustees are being put off from seeking financial advice by the slew of <a href="https://www.smartcompany.com.au/finance/44332-public-register-for-dodgy-financial-planners-aims-to-clean-up-industry">recent scandals in the financial planning sector</a>, according to taxpayer advocate group Taxpayers Australia.
Reece Agland, superannuation products and services manager at Taxpayers Australia, said the organisation has considerable anecdotal evidence to suggest trustees are being spooked by recent events, such as the Commonwealth Bank scandal.
“Talking with our member and SMSF clients, they are saying they are scared to go to a financial planner now because of all bad news and they are concerned they’ll receive bad advice,” says Agland.
Susie Salmon, head of superannuation and SMSF financial services at Crowe Horwath, said while she has not seen any evidence of this herself, SMSF trustees are generally more cautious than others with their super.
“SMSF trustees are more wary than other superannuants. They want to make sure they know how their investments are going,” says Salmon.
She says trustees are also more concerned with their independence, and the recent scandals have shown some financial planning institutions have a lack of independence.
Agland says a lack of trust in financial advice may lead trustees to miss out on investment opportunities or products. He says trustees must seek as much knowledge as they can to ensure the health of their SMSF.
“Even if [trustees] are scared to go to a financial planner, they should educate themselves to make better decisions.”
Meanwhile, the fears follow good news for Australian super, as a global superannuation index this week announced Australia as the number two global superannuation system.
The Mercer World Pension Index places Aussie super just behind Denmark in an annual survey of 25 superannuation systems, due in large part to our superannuation guarantee.
Salmon agrees the super guarantee and forced contributions have landed the country such a high ranking.
“The number one reason why we are so big and will become much larger is because we are forced,” she says, pointing out Australia is the only county in the world to institute such involuntary contributions.
“I’d expect we’d be number one soon. We are seen as one of the leaders in superannuation. They [the rest of the world] always look towards the Australian market.”
She also says Australians feel more invested in their super than other countries because the money is “our own personal” money instead of the government’s.
Salmon says because of their strong interest in controlling their own investment, SMSF trustees are key contributors to the strength of the Australian superannuation system.
Graeme Colley, director of technical and professional standards at the SMSF Professionals' Association of Australia, said he agrees the SMSF sector is a major factor behind the ranking, given SMSFs are the fastest growing segment of Australian super and the funds, on average, hold about $1 million each.
“They are contributing, not only by the amount they’ve got in the funds, but from an investment point of view, they are certainly doing their part,” says Colley.
This article first appeared on <a href="https://www.SmartCompany.com.au" target="_blank">SmartCompany</a>.
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Will financial scandals push SMSFs to go it alone?

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Trustees of self-managed super funds are being warned about the legal implications of accepting advice from real estate agents when investing their funds in property.
The warning comes as <a href="https://www.smartcompany.com.au/finance/superannuation/42422-eight-things-you-need-to-know-to-get-your-smsf-ready-for-the-end-of-the-financial-year" target="_blank">hefty new penalty regimes that punish trustees misusing their SMSFs</a> came into place at the start of July.
Australian Securities and Investments Commission commissioner, Greg Tanzer, raised the issue yesterday when he spoke at the annual CPA Australia Self-Managed Super Funds Conference.
“ASIC is aware that there has been a sharp rise in promoters recommending that investors either set up or use an existing SMSF to invest in property,” Tanzer said in his <a href="https://www.asic.gov.au/asic/pdflib.nsf/LookupByFileName/Regulators-perspective-on-the-regulation-of-SMSFs--speech.pdf/%24file/Regulators-perspective-on-the-regulation-of-SMSFs--speech.pdf" target="_blank">speech</a>. “These promoters may not be complying with the law.”
Tanzer said ASIC was concerned that, with the increased popularity of SMSFs and property investment, real estate agents and property advisers may not have realised they may be providing financial product advice and may need an Australian Financial Services (AFS) licence, or authorisation under an AFS licence.
“Specifically, we are concerned about advertisements claiming that consumers can use their superannuation to purchase a property using the NRAS and receive ‘$100,000 tax free’,” said Tanzer.
“These advertisements do not provide a balanced message about the features, benefits and risks of investing in NRAS property through an SMSF,” he said.
Graeme Colley, director of technical and professional standards at the SMSF Professionals’ Association of Australia, told SmartCompany a trustee cannot seek advice which is regarded as financial product advice from anyone without an Australian financial service licence or authorisation of one.
“If you seek advice, make sure it is from are a licenced financial planner,” says Colley.
Colley says it is likely that most real estate agents are unaware that what they are doing could be illegal. He says agents frequently give advice about investing in personal property, but should be aware that there are different laws concerning SMSFs.
“The same rules don’t apply as investing in personal property,” says Colley, who says even a ‘barbecue conversation’ regarding where money should be invested is considered financial advice.
Colley and the SMSF Professionals’ Association of Australia are calling for legislation to be put in place to give ASIC further control over the type of advice given and by whom.
He warns SMSF trustees to “get a second opinion” if advised to roll over their superannuation to set up a SMSF fund and invest in property.
Colley also warns anyone nearing retirement age about the potential danger of investing their SMSF in property. He says for those near retirement who invest in real estate – and who then find that they can’t get a tenant or need cash flow – contribution age rules may stop them from putting money back into the fund.
“The older you are the more careful you need to be,” he says.
This article first appeared on <a href="https://www.SmartCompany.com.au" target="_blank">SmartCompany</a>.
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SMSF trustees warned not to take financial advice from real estate agents

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The corporate watchdog has deregistered 440 self-managed super fund auditors who did not undertake or pass the competency exam necessary to be registered.
The move to have stricter controls over the industry comes as the <a href="https://www.smartcompany.com.au/finance/superannuation/31900-smsfs-continue-to-grow-reaching--22-billion">SMSF sector continues to gain popularity </a>in Australia.
The Australian Securities and Investments Commission said of the 440 auditors whose registration was cancelled, 373 did not attempt the exam and 67 did not pass the exam.
SMSF auditors, of which there are around 7,000 in Australia, are given up to two attempts to pass the competency exam.
ASIC said 1,421 auditors were required to sit the exam before July 1 this year, but the regulator extended the cut off to August 31, 2014.
Graeme Colley, director of technical and professional standards at the SMSF Professionals' Association of Australia, said the matter had been referred on to ASIC by the Australian Taxation Office after the ATO cross-checked the number of audits each auditor was declaring and undertaking.
Colley says auditors, many of whom would be accountants, had declared they only undertook a handful of audits a year to escape sitting the competency test, but the ATO figures had caught up with them.
“The ATO has crosschecked the actual with the theoretical,” says Colley.
“They’ve realised, wait a minute, these people are telling porkies. They haven’t done the test and they are not meeting the qualification requirements.”
Colley says many small accountants would have tried to avoid the exam out of fear or embarrassment.
“Would you want to go do an exam if you haven’t done one in ten years?” he says.
Colley says the move to cancel the registration is a positive outcome for the SMSF sector because it will make sure auditors adhere to the highest standard of education.
“It means those that are there now to look after self-managed super funds are making sure audits are done properly,” he says.
Deregistered auditors have 12 months to re-apply for registration and pass the competency exam in no more than two attempts.
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>.
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440 SMSF auditors deregistered after failing or not sitting the exam

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An ageing population, distrust in the super system and a dependency on foreign debt will put significant strain on Australia’s retirement income system over the next 40 years and will potentially leave Aussies without enough super to retire on, according to a panel of industry experts that included David Murray, the head of the <a href="https://www.smartcompany.com.au/finance/42840-what-the-murray-financial-industry-report-means-for-your-business" target="_blank">Financial System Inquiry</a> (FSI).
Murray told a breakfast in Melbourne the superannuation system needed clearer objectives in the coming years.
"We need to make sure the objective of the system is clear. If it’s not, and we don’t make some improvement, we will increasingly have to ask the question: Would we have been better off without this system?” said Murray.
“It’s not clear that we’ve made an overwhelming strong start in the superannuation system. There are a lot of people that start at 3% that won’t have adequate outcomes in retirement.”
The panel, which was hosted by the Self Managed Super Fund Association, also included former Keating government advisor Don Russell, economist and former Reserve Bank board member Warwick McKibbin, and SMSF Association chief Andrea Slattery.
Ageing population
McKibbin, an economic modeller, argued while <a href="https://www.smartcompany.com.au/finance/superannuation/31367-smsf-experts-say-ageing-population-a-concern-for-industry" target="_blank">Australia’s ageing population</a> was not facing as much pressure as some countries, such as Japan and certain areas in Europe, we are still at the mercy of an increasing rate of old age dependency.
“Demographics is always destiny,” said McKibbin, who pointed to research showing while world economies would continue to grow, work participation rates will conversely decline.   
“Just from demographics alone, we can see there will be a fundamental slowdown in the world economy,” he says.
“The people who are working can’t support the number of old age people.”
Superannuant apathy
Russell, who was one of the architects of compulsory superannuation system, argued the public is becoming increasingly apathetic about super, and the superannuation industry was guilty of not having done enough to convince people to lock away their money for 40 years.
“Unless we can continue to convince people it’s a good deal to have their money locked, people will start saying, ‘I’ll have my money now’,” said Russell.
He said the failure of the industry to speak with one voice had discredited it in the eyes of many people and had strengthened criticism of compulsory super.
Foreign reliance
Murray, the former chief of the Commonwealth Bank, used the analogy of Australia as a bank customer to illustrate our reliance on foreign debt, saying the country could be classed as “a prolific borrower”.
He said while the country is generally “a style of borrower that does prefer to pay their debts”, it was now at risk of <a href="https://www.smartcompany.com.au/growth/economy/42017-australia-s-aaa-credit-rating-at-risk-we-ask-three-economists-does-it-matter">the consequences of irresponsible budgetary management</a>.
“Well, what [does Australia] do when things are crook? Generally they have managed the budget fairly responsibly. Well we’ve reached a point where we don’t anymore,” said Murray.
Russell agreed Australia was too reliant upon other economies and was at risk of “being run over” if it slowed down reform to the super system.
“The US is of such a size, if it sits in the middle of the road, everyone goes round it. If Australia stops in the middle of the road, it gets run over. It’s not an option for us to be stopping,” he said.
SMSF sector
Meanwhile, the two-day conference also canvassed the condition of the self-managed super fund sector, with Slattery saying a growing number of people were “taking responsibility” for their super in the face of the challenges on the system.
In her keynote address, Slattery said recent reports, including the FSI, had given the SMSF sector “a clean bill of health”.
“We all know the figures. Of $1.85 trillion invested in superannuation at 30 June 2014, $560 billion is in SMSFs,” said Slattery.
“That’s 31% of all superannuation funds, with SMSFs now representing the majority of those that are self-sufficient in their retirement with 93% of members drawing income streams in the retirement phase.”
Slattery also pointed to “sobering” statistics that show approximately 84% of Australians are currently retiring on $21,000 or less a year through APRA-regulated funds.
SMSF investors making growth a priority
While concerns remain clear for the superannuation system as a whole, the conference also drew attention to research showing “green shoots” for SMSF investments.
The SMSF Investor Product Needs Report released on Tuesday shows trustees are now swinging away from cautious investments and are beginning to make growth a priority.
“For the past few years, the pendulum has been on the fear side; it was moving back towards optimism, but a lot of caution has emerged in 2014,” said the report.
The survey of 2681 investors with an SMSF, which examines investment trends in the six-year period from 2009 to 2014, says SMSF investors are in a period of “cautious optimism”, and while maximizing income remains important, trustees are focusing more on growth.
Slattery said in a statement the study “put to bed” the myths that SMSF investors don’t like making decisions, are apathetic, and basically sit on large cash reserves.
“As the report says, SMSF investors tend to lead the general investor population in investing behaviour and, as such, it’s critical to watch what they are doing,” she said.
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>.
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Kirsten Robb

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