By Graeme Colley
Despite the continued interest in property by self-managed super funds, the rules about what can and can’t be done are often misunderstood.
In this article we'll try and clear up the confusion by explaining each of the ways that property can be held by an SMSF.
An SMSF can buy a property outright if it has the cash. This is the simplest form of ownership as the fund owns all rights attached to the property.
An alternative solution to buying the property outright is for the SMSF to own part of it as ‘tenants in common’, maybe with a fund member. This allows the SMSF to have an interest in the property, say, a residential property owned with the fund member who is a ‘related party’. Providing it is not leased to the member or another related party then it may be okay. Don’t forget that property owned directly by the super fund, although owned as ‘tenants in common’, is unable to be mortgaged.
The ownership of property as tenants in common is considered a tax law partnership for ABN purposes. But if the property is a commercial property it is necessary to register the SMSF for GST. A Statement of Income and Expenditure should be prepared for the partnership to work out the net income to be distributed to each part owner. There is no need for a partnership TFN as each partner simply discloses their share of net income from the property in their respective tax return.
One practical issue with the collection of rents and payment of expenses is that each party needs to receive the correct amount of net rent. This may be difficult to achieve in the long run and may end up with the SMSF breaching the rule to keep fund assets separate from those of the related party. It can be solved by the fund and the other owner(s) having a joint bank account to receive income and pay expenses.
If the property is purchased as tenants in common it is important the correct names are on the purchase contract. Both the names of the SMSF trustee(s) as trustee for the superannuation fund and the joint purchaser would usually be recorded on the contract. For land purchased in Victoria it is possible for the contract to include an ‘and/or nominee’ clause which enables the contract to be in another’s name but at the time of settlement will nominate the superannuation fund or other joint owner of the property.
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As another option, a ‘non-geared’ unit trust or company may provide a solution where an SMSF and a related party hold units in a private unit trust or shares in a private company. The tricks here are client discipline and understanding the issues. If the unit trust or company fails to meet the strict requirements of the rules, any breach will mean compliance problems for the fund.
It is possible for the ‘non-geared’ company or trust to easily fall foul of the rules in SIS regulation 13.22D if they do one of the following:
Ungeared trusts or companies holding property in this way allow the SMSF and the other unit holders to finance the acquisition of the property without the other unit holders making contributions via the fund to finance the purchase. This structure has advantage over the tenants in common structure, as the SMSF can increase its (indirect) interest in the property. In contrast, a ‘tenants in common’ structure does not allow the SMSF to acquire any additional portion of the interest in residential property where the ‘joint tenant’ is a related party. This is because of the operation of rules which prohibit the fund acquiring certain investments from related parties (section 66 of the SIS Act). This does not apply in the case of business real property.
The use of a non-geared unit trust or company allows the SMSF to acquire the units held by the related party or parties over time to increase its ownership of the trust or company to of 100%. The units must be transferred at market value, so this may require future external valuations, and there may be income tax and stamp duty considerations.
The practical issues of collecting rents and paying expenses is easily solved by using the trust or company which allows it to have a bank account to which rents are added and expenses paid. At the end of the financial year, the net income is determined and paid to the unit holders.
Any trust or company to be used for this purpose would need to be in place prior to executing a purchase contract in the name of the trustee of the unit trust. There’s also establishment costs of the unit trust and company as well as the annual financial statements, tax return and the annual ASIC fee for any company.
Shortfalls in financing property can be funded by using an LRBA. Where an LRBA is used to acquire property, it must be in place prior to entering into the contract for purchase and the correct name must be placed on the contract. The name on the contract will depend upon the state that the property is situated. Usually it is the trustee of the security trust, but it is worthwhile to seek legal advice on the correct entity to be named.
The main issues with LRBAs is getting the parties to understand how they work as there are a lot of components to the beast.
Care and attention should be paid to LRBAs where the loan to the SMSF is made by a non-arm’s length party. Any related party loan must comply with the ATO’s rules for an SMSF related party limited recourse loan as part of an LRBA. In general, the terms of a related party loan will comply with the ATO’s rules if:
Getting the documentation right needs the oversight of an eagle eye, due to the many parties that can be involved in the arrangement, and the ease and potential for making mistakes with the paperwork. Correcting errors after the LRBA has been completed can add another expense layer for some.
The purchase of property by an SMSF can have many paths depending on how it will be purchased and the parties to it. Taking the effort to cross the ‘T’s and dot the ‘I’s is essential to ensuring property sits neatly within the fund and is not a toxic cocktail that can only be unmixed at a price.
The main lesson for SMSFs investing in property is that there are many ways to do it and the most suitable way depends on the circumstances. That’s why getting advice on the how, when and why of property investment is always wise.