By Graeme Colley
With SMSF-owned real estate, there are tax deductions and concessions available, but these vary depending on the property type and how it’s used.
If your SMSF owns residential property, such as a free-standing home, terrace or apartment, the lease will usually be for set periods under a written lease for six months, a year or longer period as agreed. The tenant will usually pay a bond as part of the lease and it will be held by the relevant government organisation until the lease has been terminated. Expenses relating to the property can be claimed from the day the property becomes available for lease. In many cases, your SMSF may employ a property agent to collect the rent and look after the day to day administration.
Any rent your SMSF receives less the relevant allowable deductions is included in the fund’s taxable income. Deductions can be claimed for rates and taxes, administration costs and maintenance of the property.
Deductions for residential property can include the following.
Don’t forget, just like all taxpayers, SMSFs cannot claim a deduction for the total cost of improvements to a rental property when they are incurred. Capital improvements such as the cost of adding a new room, remodelling a kitchen or bathroom or adding a pergola will be used to calculate the cost base of the property for CGT purposes. However, your SMSF can claim a capital works deduction based on the estimated cost of wear and tear to the property and any qualifying improvements.
Since 1 July 2017 there are restrictions on claiming tax deductions for depreciating second-hand goods, but it is still possible to claim deductions on depreciating new assets.
If your SMSF owns a ‘holiday house’, it’s like owning a residential property but it’s more likely to be in an area which attracts holiday makers.
The holiday house will have many expenses common to a residential property. However, because the property is usually leased short-term, more servicing and upkeep may be required. Also, your SMSF’s holiday house may include kitchen utensils, bed linen and furniture. A deduction is usually available for replacement of utensils, bed linen, depreciating furniture and more regular cleaning of the property.
There’s always the temptation that a fund member, trustee or one of their relatives may wish to use the property in the off season. This can be a problem for the fund as the value of the property will be included in the fund’s in-house assets. Your SMSF’s in-house assets are limited to no more than 5% of the value of its total assets at market value. A breach of the in-house assets test can result in penalties being imposed by the ATO and could require the sale of the holiday house.
A bed and breakfast (B&B), as the name suggests, is usually short-term residential accommodation with breakfast included in the price. The standard of accommodation differs from place to place, however, the property is usually serviced and restocked regularly.
In addition to expenses incurred for a residential property, your fund’s B&B may incur some of these expenses:
It is worthwhile keeping payment receipts to substantiate deductions. Any expenses relating to the B&B should be paid by the fund where possible, say, using its own credit or debit card. However, this may not be practical, and if the trustees pay the expenses personally, reimbursement should be made as quickly as possible.
Commercial property comes in all shapes and sizes from small shops to factories etc. You may end up leasing the property from the fund on an arm’s length basis. Many expenses relating to the commercial property may be the tenant’s responsibility and you may be required to make good the property after it is vacated.
In some situations, any plant and equipment that is installed in the commercial building may be unique to the tenant’s business and may require a special fit-out. The cost of the fit-out would usually be incurred by the tenant as part of any lease agreement. However, if you or a related party are the tenant and pay for the cost of the fit-out, care needs to be taken so that the cost incurred is not treated as a ‘contribution’ on the termination of the lease. The ATO’s taxation ruling TR 2010/1 provides information on whether certain expenses incurred on behalf of the fund could be treated as a contribution because the fit-out has resulted in an improvement to the commercial property owned by the SMSF.
Your SMSF may own vacant land for various purposes, such as a parking space for a business, farming land leased to a family business, or for property development.
If the land is used for genuine income-earning business purposes, the SMSF is entitled to a tax deduction for expenses. These could include rates and taxes, repairs to gates and fencing or other structures on the land such as roads.
If the land is not held for income earning purposes – such as the intention to sell or develop it at a later stage – tax deductions are not permissible. Generally, under this scenario, expenses are added to the cost base of the property for capital gains tax purposes.
Whether it can be substantiated that a fund holds vacant land for future income-earning purposes is a matter of contention between taxpayers and the ATO.
Draft legislation was released last year to ban deductions for expenses, effective 1 July 2019. The legislation would apply to all vacant land owned by SMSFs and individuals, regardless of when the land was purchased.
The legislation has some exceptions that continue to allow deductions: for expenses relating to vacant land which is used to carry on a business by a related party; or where the land is used in a business of leasing and where an unrelated party is involved.
Here are some examples of how the legislation could work if passed:
Example 1: The Nguyen Family Super Fund, an SMSF, owns a block of land on which the trustees intend to build a rental property. The block of land is fenced and has a large retaining wall, but it currently doesn’t include any permanent structure. As there is no permanent structure on the land the fund cannot deduct any holding costs for the land.
Example 2: The Crown Family Super Fund, an SMSF, owns vacant land which is rented to the son of a fund member who uses it in his farming business. As the son is carrying on a business to earn assessable income and is a related party for purposes of the proposed legislation (spouses, children under 18 years old, affiliates and connected entities), the fund can deduct costs of owning the land.
The interesting thing about the proposed legislation denying expenses for non-income producing vacant land is to clarify the income tax law as it currently stands. However, if it is passed the amended law will apply to SMSFs and individual taxpayers.
SMSFs are permitted to own property, either directly or indirectly, or even one that is financed under a limited recourse borrowing arrangement. However, whether a tax deduction is available for expenses depends on the purpose and use of the property – whether its residential, commercial, a B&B or vacant land.
