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If your self-managed super fund is intending to sell an investment property and the members plan to begin a superannuation pension in the new financial year, consider delaying the sale until after June 30 if it makes commercial sense.
As tax lawyer Robert Richards says, super fund assets backing the payment of a pension are no longer subject to tax – including capital gains tax.
See our free ebook on the <a target="_blank" href="http://propertyobserver.com.au/ebooks/free-ebook-top-24-tax-strategies">top 24 tax strategies</a> for property investors.
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The sale of self-managed super fund property to eliminate capital gains tax

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The ATO – as tax collector and regulator of self-managed super– repeatedly warns SMSFs about complying with superannuation and tax laws regarding property.
The tax office isconcentrating much attention to geared SMSF property.
Superannuation commentator Trish Power writes in her online self-managed super publication, SuperGuide:
“The Australian Taxation Office is worried about SMSF trustees and property."
"Although the ATO doesn’t express it thisway, the SMSF regulator is particularly worried about the sheer weight of money controlled by SMSF trustees, and a bit edgy that this financially powerful group may go feral.”
For instance, the ATO issued a Taxpayer Alert late last year, which included the warning:
“It is important to ensure that any arrangements entered into by an SMSF to invest in property are properly implemented, particularly those involving limited-recourse borrowing arrangements or the use of a related united trust.”
 
<hr>
 This article is part of Property Observer's <a href="http://propertyobserver.com.au/ebooks/free-ebook-21-dos-and-donts-for-smsf-property-investors" style="color: #000000; font-size: 15px;">free eBook: 21 do’s and don’ts for SMSF property investors</a>.
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Do understand where the ATO is looking

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Fund trustees should consider eventual disposal of a property even before their fund even buys it, says Martin Murden, director of SMSF consulting with the Partners Group in Melbourne.
For instance, many trustees plan for their SMSFs to own a direct property until the point of their retirement.
Such long-term planning helps minimise the risk of having to quickly sell a property to pay membe rbenefits or to switch to higher-yield investments in retirement.
Upon retirement, SMSF trustees can decide whether to:
• Sell the property to distribute retirement benefits to members. (If the property is backing the payment of a superannuation pension at the time of sale, no CGT is payable under current law.)
• Allow a member to acquire the property as a retirement benefit. (The trustees would have to consider possible CGT implications.) Some members use a former fund-owned property as thei rretirement home.
• Keep the property in the SMSF togenerate income for the members’ superannuation pensions.
 
<hr>
 This article is part of Property Observer's <a href="http://propertyobserver.com.au/ebooks/free-ebook-21-dos-and-donts-for-smsf-property-investors" style="color: #000000; font-size: 15px;">free eBook: 21 do’s and don’ts for SMSF property investors</a>.
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Do consider how SMSF will eventually dispose of a property

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SME owners are likely to accelerate existing plans to gear their business premises through their self-managed super funds after renewed debate about whether to bar future superannuation gearing, say advisers to SMSFs and small-medium businesses.
Business owners are among the biggest supporters of self-managed super with superannuation gearing to acquire business premises becoming an increasingly popular strategy.
The recent <a href="https://fsi.gov.au/files/2014/07/FSI_Report_Final_Reduced20140715.pdf" target="_blank">interim report</a> of the Australian government’s current inquiry into the financial system, chaired by David Murray, is calling for views about whether superannuation gearing should be prospectively prohibited.
“If allowed to continue, growth in direct leverage by superannuation funds, although embryonic, may create vulnerabilities for the superannuation and financial systems,” the inquiry observes.
The inquiry’s final report is scheduled to be delivered to the Treasurer by November 14, although it is not known how long the government may take to react to its final recommendations.
SMSF specialist adviser Peter Crump says: “Where there is a hint that an investment opportunity may be closing, people who have been thinking about it should stop vacillating and make a decision – one way or the other.”
Crump, superannuation strategist for financial advice company ipac South Australia, believes that the financial inquiry’s call for views about the possible future barring of super gearing may prompt SME owners who have already been considering gearing their premises to focus their attention.
And Crump says good advisers have a responsibility to alert clients who had been discussing the gearing strategy with them about the possible impact of the financial inquiry.
“I think as advisers, we have a responsibility to keep our clients fully aware; otherwise we have let them down,” he adds. Crump is chairman of the SMSF Professionals’ Association of Australia (SPAA).
SMSF auditor Martin Murden believes the raising of the possible removal of superannuation gearing is a “potential trigger” for SME owners who had been examining whether to gear their business premises through their SMSFs to reach a decision.
Murden, a director of SMSF consulting and auditing with the Partners Wealth Group and author of How to invest in property through your self managed super fund, says the financial inquiry provides something of a deadline for SMEs to make up their minds.
And Naree Brooks, a partner at PwC Private Clients, makes a similar comment: “If SMEs had been thinking about gearing their premises through their SMSFs, the Murray inquiry may bring forward the decision making.”
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Sue Prestney, a partner at PwC Private Clients, says the majority of her medium-sized business clients up to August 1999 had acquired their business premises through their SMSFs, using geared trusts associated with the members. (The law had changed at that date, making such trusts so-called in-house assets of the funds and effectively ending the future gearing of SMSFs in that way.)
Prestney estimates that at least 30% of SMEs who have become her clients since 1999 now hold their business premises in their SMSFs with some of their SMSFs gearing through limited recourse loans, permitted under strict conditions for the past seven years.
“SMEs generally have their resources tied up in their businesses,” Prestney adds, “and usually the only way they can buy their business premises is through their super funds.”
Depending upon the circumstances, the holding business premises in a business owner’s SMSF can provide tax, asset protection, estate planning and business succession benefits.
Since September 2007, super funds have been permitted to borrow to invest – as an exemption to the general bar on borrowing – using limited recourse borrowing arrangements. Geared asset must be held in a holding trust until the loan is repaid.
SMEs owners who hold their business premises in their SMSF must pay an arm’s length rent to the fund, which pays concessional tax on the rental income.
Business property is one the few types of assets that SMSFs are allowed to acquire from their members and other related parties. As well, business property is one of the few types of assets that funds can lease to related parties, including the members’ businesses – without being limited by the in-house asset rules in superannuation law.
The ATO’s latest <a href="https://www.ato.gov.au/Super/Self-managed-super-funds/In-detail/Statistics/Quarterly-reports/Self-managed-super-fund-statistical-report---March-2014/">self-managed super fund statistical report</a> shows SMSFs owed $2.72 billion in limited resource loans in March, up from $497 million in June 2009. These loans represent half a percent of total SMSF assets. The value of commercial property held by SMSFs is three times greater than the value of their residential property.
PwC’s Brooks says the gearing of businesses premises through SMSFs is increasingly popular among SME owners. Brooks believes a “second wave” of business owners are following the strategy, having progressively built-up their super balances under the more restrictive contribution caps. Further, limited recourse loans are more competitively priced.
Surveys by Investment Trends suggest that 38,000 SMSFs hold geared investments and that one of the main reasons why members of large super funds say they intend to setup an SMSF in the future is to invest in property.
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>.
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Small business owners pushing for self-managed super gearing of business premises

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A recent Federal Court case underlines the potentially destructive consequences when the assets of a family’s self-managed super fund are used in an attempt to save a family’s struggling small business.
The trustee of the super fund in this case made six back-to-back loans totalling $190,000 to his brother-in-law who immediately transferred the money to the trustee’s Sunshine Coast convenience store.
A high price is being paid by the SMSF’s two members – Anthony Shaune Lyons and his wife, Julianne Marie – for the decision to use their super money as working capital for their financially-troubled business:
<ul>
<li>Their savings in the SMSF have been lost. None of the superannuation injected into their family business has been repaid and is, according to the court, irrecoverable. (The $190,000 in loans represented almost all of the super fund’s $193,000 in assets.) </li>
</ul>
<ul>
<li>The court has personally fined the trustee Anthony Shaune Lyons $32,500 plus $5000 towards costs for contravening a range of the most fundamental laws including the bar on providing financial assistance to members or their relatives.</li>
</ul>
<ul>
<li>By using their SMSF assets to prop up their failing business, the couple lost the protection of superannuation as a means to quarantine their super savings from the fate of their convenience store. Superannuation is widely regarded as an effective means for small business operators to gain asset-protection subject to certain conditions.</li>
</ul>
The couple is now bankrupt because of personal debts incurred in running their business. Their plight is setout in stark detail in the court’s judgment, <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca1353">Deputy Commissioner of Taxation (Superannuation) v Anthony Shaune Lyons</a>.
Peter Crump, superannuation strategist for ipac South Australia, is emphatically against business owners using their super savings to try to save their financially-troubled businesses.
Crump, who is chairman of the SMSF Professionals’ Association of Australia, says owners of small businesses that are experiencing difficulties may tend to look at their business’s chances of recovering with “very rose-coloured” glasses.
“They may say to themselves, ‘I only need to put in a little more money to see the business through’. It is in a similar vein to gambling,” Crump believes.
The sad experience of the business couple in this court case highlights why SME business owners should:
<ol>
<li>
Not overlook the excellent asset-protection qualities of superannuation  Assets held in a super fund are generally inaccessible to trustees in bankruptcy – provided contributions were not made with the main purpose of defeating creditors. “By moving savings outside super,” says Crump, “you are exposing those savings. Keeping super and business assets separate is one of the key advantages of superannuation.” 
</li>
<li>
Know when to quit a failing business and understand the need for quality professional advice Rather than chasing good money after bad in a failing business, Crump says business owners should listen to expert and independent professional advice about when to quit. “You should have advisers with the courage and conviction to tell you when to quit a business,” he stresses. 
</li>
<li>
Never overlook thefundamental laws of super  The trustee in this court case contravened the most basic laws of super. The trustee breached the sole-purpose test (a super fund must be maintained to provide retirement benefits); the ban on providing financial assistance or loans to fund members and their relatives; the in-house asset rule (with a few exceptions, super funds are prohibited from making loans or having investments with related parties and entities that exceed 5% of its total asset value); and the requirement that transactions must be conducted on an arm’s length basis. 
</li>
<li>
Recognise the “certainty of detection” for illegal payments from a super fund  Crump says a superannuation auditor conducting the compulsory annual audit of a super fund will inevitably detect and ask for an explanation about such transactions as loans to members or their relatives.</li>
</ol>
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>. 
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SMSF money lost in failed attempt to save business: Four ways to protect your SMSF

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Rents are concessionally-taxed at 15% while capital gains are taxed at an effective 10% during your fund’s accumulation or saving phase if the property is held for more than 12 months.
And once the property is backing the payment of a superannuation pension, fund income and capital gains are tax-free under current law.
This means that your SMSF may eventually be able to sell a property in the pension phase without paying any CGT on the profits.
The Labor Government had proposed to tax annual earnings of more than $100,000 from superannuation assets supporting a pension.
However, the legislation wasn’t passed before federal Parliament went into its pre-election recess.
SMSFs in the accumulation phase are entitled to claim the same types of tax deductions as individual investors who buy properties in their own names.
For instance, an SMSF can claim deductions for loan interest, repairs and depreciation, and for any shortfall between the deductible expenses and the rent.
But it is crucial not to overrate the benefits of negative gearing through an SMSF.
 
<hr>
This article is part of the <a href="http://propertyobserver.com.au/ebooks/free-ebook-21-dos-and-donts-for-smsf-property-investors" style="color: #000000; font-size: 15px;">free eBook: 21 do’s and don’ts for SMSF property investors</a>. 
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Do understand the tax treatment of SMSF property

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Assets held in a super fund are legally inaccessible to trustees in bankruptcy – provided contributions or asset transfers were not made with the “main purpose” of avoiding creditors.
This makes super such a prized method of asset protection, particularly as there is no dollar limit on the protection.
Many small-medium business owners, for example, place their busines spremises in an SMSF partly as an asset protection strategy.
Take the example of husband-and-wife business partners who currently own business premises in their own names.
Depending upon the circumstances (including any professional advice received), this couple may decide to either sell the property to their SMSF at market value or make a non-cash contribution of the property to the fund.
<hr>
This article is part of the <a href="http://propertyobserver.com.au/ebooks/free-ebook-21-dos-and-donts-for-smsf-property-investors" style="color: #000000; font-size: 15px;">free eBook: 21 do’s and don’ts for SMSF property investors</a>.
 
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Do know the asset-protection advantages of SMSF property

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Small and medium-sized enterprise (SME) owners are examining alternative ways to acquire and gear their business premises in the event that the government bars self-managed super funds from directly borrowing to invest using increasingly-popular limited recourse borrowing arrangements (LRBAs).
These SME owners are responding to a recommendation in the <a href="https://fsi.gov.au/publications/final-report/" target="_blank">final report</a> of the Financial System Inquiry, chaired by David Murray, that this form of borrowing be prospectively barred. There is speculation that the borrowing rules for SMSFs could significantly change in the months leading to the May budget.
Since September 2007, super funds have been permitted to borrow to invest – as an exemption to the general bar on borrowing – using limited recourse borrowing arrangements. The geared asset must be held in a holding trust until the loan is repaid and creditors cannot make claims against a super fund’s assets other than the geared asset.
SME owners are believed to be among the biggest, if not the biggest, users of limited recourse borrowing arrangements to gear investments – typically to their own business premises – through their SMSFs.
Significantly, business property is one the few types of assets that SMSFs are allowed to acquire from their members and other related parties. As well, business property is one of the few types of assets that funds can lease to related parties, including the members’ businesses, without being limited by the in-house asset rules in superannuation law.
In her latest newsletter, Meg Heffron, co-principal of SMSF administration group Heffron, asks a telling question for SME owners wanting to buy their business premises through their SMSFs: Does the possible demise of limited recourse loan arrangements “represent the end of the world as we know it” for SMSFs to acquire property if they don’t already have the cash?
It seems the answer is a resounding “no”, according to Heffron and Chris Malkin, senior consultant auditor with Baumgartner Superannuation.
Heffron and Malkin says the strategy that SME owners are likely to most use if limited recourse loan arrangements are barred is to arrange for their SMSFs to progressively buy their business premises through ungeared trusts or companies.
“I think ungeared trusts are much underutilised,” says Heffron, “probably because they are poorly understood.”
A typical strategy would involve the members of an SMSF and the SMSF itself owning units in the ungeared trust which acquires the business premises. And then the SMSF progressively acquires more units to eventually gain full ownership. Although the trust is ungeared, the law does not prohibit SMSF members from personal borrowing to acquire units in the trust.
Factors to think about when considering an ungeared trust as an alternative to a limited recourse borrowing arrangement include:
1. Security for the loan
With limited recourse loan arrangements, the geared business premises (or whatever other asset is being acquired) provide security for the loan whereas with a typical ungeared trust arrangement, SMSF members often borrow against the equity in their homes.
2. What’s at stake if the investment fails
This is, of course, linked to point one above. On the face of it with limited recourse loan arrangements, the geared business premises would be at risk if the investment did not succeed. Whereas with the typical ungeared trust arrangement, fund members would have borrowed against the family home and therefore the family home would be at stake. In practice, however, the contrast is not so clear cut.
Malkin emphasises that although with limited recourse loan arrangements, a financier can only make a claim against the geared asset, SMSFs often use almost all of their assets to pay the deposit or initial instalments on the investment. And lenders often require SMSF members to provide a personal guarantee, which typically means that their homes may also be at risk.
“Speaking as an owner of an SME, I usually try to divorce my personal assets from what I do with the business,” Heffron comments. “If I borrow to buy the business premises, I would like to have the loan secured on the business premises – not secured on my personal assets.”
3. Intended improvements to business premises
Under existing law, SMSFs using a limited recourse loan arrangement can only drawdown on the loan to make repairs not improvements to a geared property. (This applies to arrangements entered into after July 7, 2010.)
Heffron says that this bar on using borrowed money borrowed under limited recourse loan arrangements may make ungeared trusts more appropriate for an SME wanting to acquire business premises through their SMSFs and then to make significant improvements. Much depends on the circumstances, including professional advice received.
“The super fund or the family trust can buy more units in the ungeared trust,” says Heffron, “and that will provide the money to make improvements.”
4. Simplicity of strategies
Opinions differ among superannuation specialists about which strategy is simpler – limited recourse loan arrangements or ungeared trusts. Again much will depend on the circumstances.
Heffron believes that the limited recourse loan arrangement is generally simpler if the super fund does not intend to make improvements to the property and wants to simply rent it to the members’ business. This is partly because the geared asset is held in a holding trust until the SMSF makes the final instalments on the loan. There is no CGT event or transaction whenever the super fund makes loan instalments.
By contrast, Heffron says there is a CGT event with the ungeared trust strategy whenever the super fund acquires more units. Also Heffron warns in her newsletter that an ungeared trust is “permanently comprised” and loses its concessional treatment if it breaches the “fairly stringent” rules after a super fund invests in it.
5. Gearing tax benefits
From this perspective, the ungeared trust strategy would typically be the clear winner.
As Malkin explains, an SMSF member personally borrowing to buy units in the ungeared trust acquiring the business premises would be entitled to claim tax deductions for interest payments at his or her marginal tax rate. By contrast, an SMSF borrowing under a limited recourse loan arrangement would only be entitled to tax deductions at the standard superannuation tax rate of 15%.
This article first appeared on <a href="https://www.smartcompany.com.au/" target="_blank">SmartCompany</a>.
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SMSFs and geared business premises: Five factors to consider

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A Federal Court judgment this month provides telling lessons for members of self-managed super funds (SMSFs), including those operating small-medium businesses.
The court personally fined the husband-and-wife directors of their SMSF’s corporate trustee a total of $50,000 for a series of contraventions of superannuation law, including the making of 80 “loans” to members, namely themselves.
Fund money was also used to buy study cattle “for hobby purposes” as well as to pay veterinary bills and other related expenses without the fund earning income from the expenditure. The couple, who were the only members of their SMSF, operates a livestock business in Victoria.
Further, the trustees allowed their son to live in a fund-owned property without paying the rent required under the lease. And the fund had spent $48,500 on furniture before the lease commenced.
This court case – <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca1101">Deputy Commissioner of Taxation (Superannuation) versus Graham Family Superannuation Pty Ltd, Ian Christopher Graham and Carolyn Ann Graham</a> – illustrates the risks when SMSF members mix their superannuation and their non-superannuation finances.
Peter Bobbin, principal of lawyers Rockwell Olivier in Sydney, says: “Without doubt, the couple used the super fund as a personal bank to fund their [pre-retirement] lifestyles.”
There is no suggestion in the judgment that the husband-and-wife trustee directors/members in this case used money from their SMSF in relationship to their business. However, Bobbin and Chris Malkin, the senior consultant auditor with Baumgartner Superannuation, say the case represents a warning for SME owners about the dangers of mixing their super, their business and personal finances.
“This case reminds me of the need for SME owners to quarantine their superannuation from their business activities,” says Bobbin. And Malkin believes that SME owners can face a greater temptation than other members to use their super money for purposes other than for their retirement.
“The simple reason is that the cash-flows of SME owners are sometimes stretched and some may see their super fund as a pseudo bank,” says Malkin.
The couple’s contraventions of superannuation law included breaching superannuation’s sole purpose test, providing financial assistance to members, exceeding the limits on in-house assets and failing to conduct dealings on an arm’s length basis.
This case should reinforce to SMSF members regarding some of the most fundamental provisions in superannuation law. These include:
<ol>
<li>The sole-purpose test: A super fund must be maintained for the purpose of providing retirement or death benefits to members.</li>
<li>The ban on providing financial assistance, including loans, to members or their relatives: Significantly, there is no exemption under the in-house rule (see next point) to the ban on providing financial assistance to members.</li>
<li>The in-house asset rule: SMSFs are generally prohibited from making loans, providing leases or having investments with related parties and entities that exceed 5% of its total asset value. (One of the very few exemptions to the in-house asset rule is business real estate.)</li>
<li>Arm’s length investments: A fund must make investments on an arm’s length, commercial basis.
</li>
</ol>
As Peter Bobbin of Rockwell Olivier says, the ATO in this instance did not revoke the SMSF’s complying status but had decided to pursue the trustees through the court.
When an SMSF is declared non-complying, its assets – less any after-tax, non-concessional contributions – are taxed at the highest marginal rate. This is widely regarded as an ultimate sanction against an SMSF.
Stuart Jones, author of the Australian Superannuation Handbook 2014-15 (published by Thomson Reuters) expects that the ATO is likely to apply its new administrative penalty regime, in force from July this year, to similar cases in the future.
Under the new penalty regime, the Tax Office can directly and personally fine SMSF trustees by imposing an administrative penalty (ranging from $850 to $10,200) intended to match the seriousness of the contravention. Therefore, the ATO does not have to go through the expensive and time-consuming process of seeking court-imposed penalties.
Jones says the commissioner still has the option of applying for a civil penalty court order of up to $220,000 for each offence, or even instituting criminal proceedings in certain cases.
Given the large number of contraventions in the Graham family matter, Malkin suspects the overall penalties would have been significantly higher if it had been dealt with under the new penalty regime.
This article first appeared on <a href="https://www.SmartCompany.com.au" target="_blank">SmartCompany</a>.
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SMSFs warned against using fund as 'personal bank'

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Trustees of self-managed super funds (SMSFs) are increasingly putting their retirement savings in jeopardy by granting high-risk, high-interest loans to unrelated businesses in an effort to boost returns in a low-interest environment.
Chris Malkin, senior consultant auditor with Baumgartner Superannuation, suspects that many of the SMSF trustees granting these commercial loans do not understand the extra risks and legal complications involved.
“Some funds are effectively turning themselves into lenders of last resort,” Malkin says. “High-interest, high-risk loans are hardly appropriate investments for super funds.”
Typically when SMSFs strike difficulties with lending money, <a href="https://www.smartcompany.com.au/finance/superannuation/44336-risky-business-using-a-self-managed-super-fund-as-a-personal-bank" target="_blank">the loans have been made to related parties</a>. However, a recent Federal Court case highlights the potential extra risks for super funds when making high-interest loans to unrelated parties.
In the case of <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca1034" target="_blank">Pozzebon (Trustee) v Australian Gaming and Entertainment Ltd (in liquidation)</a>, a husband-and-wife SMSF agreed in December 2013 to grant a $250,000 secured loan to a Perth-based business, which had agreed to provide security over corporate assets. Five months later, the company went into voluntary liquidation.
The SMSF then claimed that the liquidated company owed the fund $348,713 – $98,713 higher than the amount of the initial loan.
However, the Federal Court ruled the SMSF was an unsecured creditor after finding the fund had not registered the “security interest” on the relatively new Personal Property Securities Register within the required time.
Stuart Jones, author of the Australian Superannuation Handbook 2014-15, says: “The Pozzebon case serves as a warning to SMSF trustees chasing a higher yield that commercial loan investments are intrinsically problematic for most trustees in terms of the skills required to assess and manage the additional risks in such loans.”
Martin Murden, a director of SMSF consulting and auditing with the Partners Wealth Group, says his annual auditing of SMSFs show more funds are granting high-interest commercial loans. And he expects this trend to grow during the current financial year.
Murden believes that most of the SMSFs being drawn into investing in high-interest, high-risk loans already hold a high proportion of their assets in fixed interest and have become dissatisfied with prevailing interest rates.
He says such SMSF trustees typically don’t want to invest in residential real estate because of their concerns about a property bubble yet find the share market too volatile.
Stuart Jones of Thomson Reuters says there is nothing under the Superannuation Industry (Supervision) Act (SIS) to prohibit an SMSF from investing in a loan to an unrelated borrower.
However, Jones says the loan would still need to comply with SIS investment rules including the sole-purpose test, trustee duties, arm’s length dealings and mandatory investment strategy. (Under the sole-purpose test, a super fund must be maintained for the purpose of providing retirement or death benefits to members.)
“The risks associated with a commercial loan would also need to be suitable as part of the fund’s written investment strategy,” Jones stresses. “Therefore, at minimum, a trustee considering an investment loan would need to establish a detailed risk-management plan for the life of the loan.”
Jones says if an SMSF trustee is going to “make loans like a bank”, it needs to assess the loan application and take security, ideally real estate, “like a bank”. This would typically require specialist and accounting advice to assess the loan investment and to ensure security for the loan or priority status among creditors in the event of a default.
This article first appeared on <a href="https://www.smartcompany.com.au" target="_blank">SmartCompany</a>.
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Michael Laurence

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