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All posts in category Investment Strategies

Stamp Duty on Transfers of Property to an SMSF

Immediately after I published my last blog Stamp Duty Requirements on Change of SMSF Trustees I got questions on stamp duty on property transfers to a Self Managed Superannuation Fund. At first I attempted to the answers myself but to ensure ongoing accuracy I am pleased to have Caroline Harley, one of the best lawyers in the SMSF sector review and update this information.

Caroline Harley | Special Counsel

So here is the current breakdown on stamp duty for property investors or small business owners looking to move property they own personally in to their SMSF.

Stamp duty imposed by State and Territory governments should always be researched and considered before transferring land to an SMSF. Concessions or exemptions from duty may be available depending on the State or Territory in which the land is situated.

This concession can be very significant. If the SMSF purchases NSW land/property from a member with a market value of $500,000, the duty which would apply (but for the concession) is $17,990. With the concession, the saving in duty is $17,240 as concessional duty is only $750.

Reminder: the land/property must be business real property owned in the personal name of the member rather than a company (otherwise the trustee would not be permitted to acquire the real estate).

The provisions of the duties legislation of each State or Territory differ, however where concessions or exemptions are available they generally require the transferor to continue to be the beneficial owner of the land (this relates to business real property as it is the only land which an SMSF may directly acquire from a member).

The following tables set out the details of the stamp duty offices and relevant provisions of the relevant legislation in each State and Territory. This is up to date as at 27 February 2017.

NSW	Transfer to a SMSF
Duty payable	$750 subject to conditions being met. Previously $500 but increased 01/02/2024. Depending on the documentation in place for the transaction you may be able to apply for a retrospective re-assessment and obtain a refund. An SMSF specialist lawyer would be able to advise you on this.
Relevant provisions	62A NSW Duties Act 1997
General description of legislation	Nominal duty is charged on a transfer of dutiable property from a person to a trustee of an SMSF where the: transferor is the only member of the super fund or the property is to be held by the trustee solely for the benefit of the transferor (ie property or proceeds of sale of property cannot be pooled with property held for another member and no other member can obtain an interest in the property or proceeds of sale); and property is to be used solely for the purpose of providing a retirement benefit to the transferor.
Document-ation	Evidence that it is a complying SMSF as at the date of the agreement/transfer, copy of minutes of meetings of the SMSF stating the intention to have the property transferred to it and confirming that the property was owned beneficially by the transferor member, copy of the SMSF trust deed or a variation to it, showing a non revocable clause that the property is segregated for the transferor member’s benefit only (follows wording in section62A(2))
Legislation	Duties Act 1997 (NSW)
Legislation website	http://www.austlii.edu.au/au/legis/nsw/consol_act/da199793/
Office	Office of State Revenue
Website	http://www.osr.nsw.gov.au

VIC	Transfer to a super fund
Duty payable	No duty subject to conditions being met
Relevant provisions	Section 41 Vic Duties Act 2000
General description of legislation	No duty is charged in respect of the transfer of dutiable property made without monetary consideration to a trustee of a super fund, where there is no change in beneficial ownership (again, property must be held in the personal name of the member and not a company name). A transfer of property to a trustee of a super fund by a beneficiary of the fund does not, for the purposes of this section, effect a change in the beneficial ownership of the property.
Document-ation	Documents are required – refer to ‘Evidentiary Requirements for Dutiable and Exempt Transactions’ on SRO website
Legislation	Duties Act 2000 (VIC)
Legislation website	http://www.austlii.edu.au/au/legis/vic/consol_act/da200093/
Office	State Revenue Office (SRO)
Website	http://www.sro.vic.gov.au/land-transfer-duty

No luck in QLD

QLD	Transfer to a super fund
Duty payable	$20 subject to conditions being met
Relevantprovisions	You can claim this concession on transfer duty if you: transfer dutiable property between superannuation funds to merge or split the funds create a trust of dutiable property because of the variation or reconstitution of a superannuation fund. (Read more about transfer duty on trusts.) The superannuation fund must become a complying superannuation fund within 1 year. A complying superannuation fund is: a complying superannuation fund under the Superannuation Industry (Supervision) Act 1993 (Cwlth), section 42 or 42A an exempt public sector superannuation scheme under that Act.
General desc-riptionof legislation	A transfer of dutiable property is a concessional dutiable transaction.
Document-ation	Duties office form and documents are required. https://www.publications.qld.gov.au/ckan-publications-attachments-prod/resources/755a8bd9-7134-4a5f-85e7-a54c747ec7bd/form-d2.6-v2-effective-7-jan-2008.pdf?
Legislation	Duties Act 2001 (QLD)
Legislationwebsite	http://www.austlii.edu.au/au/legis/qld/consol_act/da200193/
Office	Office of State Revenue
Website	http://www.osr.qld.gov.au/duties/index.shtm l

WA	Transfer to a super fund
Duty payable	$20
Relevant provisions	Sections 122 – 124 WA Duties Act 2008
General description of Legislation	Nominal duty is charged on a transfer of dutiable property by a person to the trustee of a super fund where –

	▪ there is consideration for the transfer; and
	▪ only the transferor can be a member of the super fund or the property is held in the superfund specifically for the transferor (ie property cannot be pooled with the assets of another member and no other members can obtain an interest in the property); and
	▪ the property (or if sold, the proceeds) can only be held in the superannuation fund to be provided to the transferor as a retirement benefit.
	If the fund subsequently fails to satisfy any of the requirements (above) full stamp duty is payable in respect of any dutiable property still held.
	Nominal duty is charged under section 124 in respect of a transfer of dutiable property to the trustee of an SMSF that is an employer sponsored fund where –
	there is no consideration for the transfer.

Document- ation	Application form is required – ‘Superannuation Fund Transactions – Application for Nominal Duty’.
Legislation	Duties Act 2008 (WA) Also refer to Duties Fact Sheet – Superannuation Transactions
Legislation website	http://www.austlii.edu.au/au/legis/wa/consol_act/da200893/
Office	Office of State Revenue
Website	http://www.finance.wa.gov.au/cms/section.aspx?id=209

ACT	Transfer to a super fund
Duty payable	Ad valorem duty applies
Relevant provisions	No provision for exemption or concession from duty
General description of legislation	Duty is charged on a transfer of dutiable property.
Document-ation	Lodgement form and documents are required.
Legislation	Duties Act 1999 (ACT)
Legislation website	http://www.austlii.edu.au/au/legis/act/consol_act/da199993/
Office	ACT Revenue Office
Website	http://www.revenue.act.gov.au

SA	Transfer to a super fund
Duty payable	Ad valorem duty applies
Relevant provisions	No provision for exemption or concession from duty
General description of legislation	A transfer of property to a person who takes as trustee is deemed to be conveyance whether or not any consideration is given (except in certain circumstances regarding the transfer of family farming properties)
Document-ation	Lodgement form and documents are required
Legislation	Stamp Duties Act 1923 (SA)
Legislation website	http://www.austlii.edu.au/au/legis/sa/consol_act/sda1923157/

Office	Revenue SA
Website	http://www.revenuesa.sa.gov.au

NT	Transfer to a super fund
Duty payable	Ad valorem duty applies
Relevant provisions	No provision for exemption or concession from duty
General description of legislation	A conveyance of dutiable property is a dutiable instrument.
Document-ation	Lodgement form and documents are required
Legislation	Stamp Duty Act (NT)
Legislation website	http://www.austlii.edu.au/au/legis/nt/consol_act/sda151/
Office	Territory Revenue Office
Website	http://www.treasury.nt.gov.au

TAS	Transfer to a super fund
Duty payable	$50
Relevant provisions	Section 49 Duties Act 2001 (TAS)
General description of legislation	Where the duties office is satisfied there is no change in the beneficial ownership of the property duty chargeable on the transfer is $50. Also an exemption is available in certain circumstances regarding the transfer of primary production land.
Document-ation	For primary production see ‘Documentary Evidence requirements Guideline’, for other transfers duties office reviews each transfer on its own facts recommend seeking confirmation of eligibility prior to lodgement.
Legislation	Duties Act 2001 (TAS)
Legislation website	http://www.austlii.edu.au/au/legis/tas/consol_act/da200193/
Office	State Revenue Office
Website	http://www.sro.tas.gov.au

If you don’t get an exemption the the rates applicable are:

Moving Property to an SMSF is not something to be done lightly without looking at the pros and cons as well as the procedures in your state or territory.

We have design a 3 part guide to buying a property in an SMSF

Even more information and complimentary strategy ideas are available on our Property in a SMSF page. Contact Caroline for specific legal advice on your proposed strategy.

IMPORTANT

This information is current as at the date of publication but may be subject to change. This article is general in nature and has been prepared without taking into account a potential your objectives, financial situation or needs. Before making a recommendation based on this article, seek personal legal and tax advice and consider its appropriateness based on the your objectives, financial situation and needs.

Are you looking for an advisor that will keep you up to date and provide guidance and tips like in this blog? Then why now contact me at our Castle Hill or Windsor office in Northwest Sydney to arrange a one on one consultation. Just click the Schedule Now button up on the left to find the appointment options.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02 9899 3693, Mobile: 0413 936 299

PO Box 6002 NORWEST NSW 2153
Suite 40, 8 Victoria Ave, Castle Hill NSW 2154
Suite 4, 1 Dight St., Windsor NSW 2756

Corporate Authorised Representative of Viridian Advisory Pty Ltd ABN 34 605 438 042, AFSL 476223

This information has been prepared without taking account of your objectives, financial situation or needs. Because of this you should, before acting on this information, consider its appropriateness, having regard to your objectives, financial situation and needs. This website provides an overview or summary only and it should not be considered a comprehensive statement on any matter or relied upon as such.

Image courtesy of jscreationzs at FreeDigitalPhotos.net

16 Comments

by SMSF Coach - Liam Shorte on March 12, 2015 • Permalink

Posted in LRBA, Property, SMSF Management, Trustee

Posted by SMSF Coach - Liam Shorte on March 12, 2015

https://smsfcoach.com.au/2015/03/12/stamp-duty-on-transfers-of-property-to-an-smsf-as-at-01-jan-2015/

6 Key Considerations for your SMSF Investment Strategy

So your SMSF Administrator/Accountant is now having to use an Independent Auditor and suddenly you are being asked for more than just the 1 page SMSF Investment Strategy template provided by the Accountant that you used to sign without filling in the blanks and without considering its purpose.

The reason an Investment strategy is required by an SMSF and also required to be reviewed regularly is that personal circumstances changes as do markets and economies. You need to consider your investment portfolio in the light of these changes and this is a way of prompting you to do so as part of the annual review.

Each year we experience a lot of market and political volatility with differing views on where the economy is headed, leading to a subsequent impact on share and property markets.

As an investor is can be easy to get caught up in the short-term noise and lose focus. The SMSF Investment strategy requirement is a way of prompting you, the Trustee(s), to really consider what objectives you are trying to achieve and the strategies and asset allocation that you need to follow to achieve them.

Having a well thought out SMSF investment strategy is a key element in helping you achieve a smooth transition in to and through retirement.

Here are 6 important considerations in establishing your SMSF investment strategy.

Liquidity Needs: What life stage are each of the members in?
The members’ personal circumstances and life-stage will have the most important impact on your SMSF investment strategy. If you are all 20 years out from retirement, you may choose to invest for growth and ride with volatility of the share and property markets to benefit from the risk/return premium attributed to those sectors which are less liquid than cash and bonds. If however one or more of the members is approaching retirement or using a Transition to Retirement Pension strategy you may choose a more cautious approach to ensure sufficient income is available for pensions regardless of market ups and downs. That requires more active management to maintain some liquidity still seek a decent return through a diversified portfolio. For example we always recommend 12-36 months pensions are retained in cash or fixed interest to avoid selling assets in a downturn and reducing your capital value.
What’s the members’ risk tolerance
The ability of all involved to sleep comfortably at night without worrying about their investments should always be taken into consideration regardless of your age. If you or another member have no experience or confidence in certain market sectors, then short-term your investment strategy should be tailored accordingly. But you should then seek more information, education and guidance to build your knowledge and then your confidence in those missing sectors so that you can adopt a well diversified strategy long-term. It is generally accepted that the greater the risk of an asset, the greater the potential returns but this risk abates as time passes so riskier assets can pay off handsomely over time with less risk than perceived short-term. A portfolio designed to reduce your concerns while not providing optimal returns provides THE SLEEP FACTOR!
Asset allocation
Investing in the right asset classes is a major factor in the returns you will receive. Aussie Equities and Cash are not a full solution long-term. Cash and TD rates are currently low and our share market had a poor year last year and our economy is struggling while international equities, property and infrastructure are benefiting from improving economies, low interest rates and the dropping Aussie dollar. Your asset allocation should be reviewed annually and rebalanced to account for the returns from various asset classes and their future forecast. We are not saying make dramatic changes but do take tilts to certain sectors that will benefit from the current economic climate.
Avoid sector bias
The Big 4 Banks, Woolworths and Telstra do not make a diversified portfolio! Once you have decided which asset classes to invest in, it is important to diversify within those asset classes. Frequently I see investment portfolios with a narrow range of large Australian companies just like mentioned above providing very poor diversification – and leaving the overall investment portfolio heavily reliant on the fortunes of one or two sectors. Self Managed Superannuation Funds (SMSF) set up for the benefit of control without the willingness to take advice or learn about portfolio design, frequently lack diversification with an over reliance on one property, Australian shares and/or cash. With Control comes responsibility to learn and adapt.
Tax efficiency
Often the spur to look at complex and structured investments near June 30^th is the tax consideration. The amount of tax you pay on investment has a major impact on your SMSF investment strategy. Here is the tax basics for SMSFs:

15% tax on earnings and capital gains on assets held for less than 12 months in accumulation phase
10% tax on Capital Gains on assets held for greater than 12 months in accumulation phase
0% tax on earnings and capital gains on assets sold in pension phase

For example, if you were lucky enough to have bought 1000 CBA shares during the GFC at $30 and sell them now at $90 in accumulation phase you will pay $6,000 in tax with a net profit of $54,000. While if you were lucky to move in to pension phase you receive the full $60,000 tax-free. Tax is an important consideration and an understanding of the tax impacts which you purchase your asset in, and the tax payable when you dispose of the asset, are very important but should not be the sole driver of your Self Managed Superannuation Fund investment strategy.

Insurance Needs of the Members

Trustees of SMSFs now have to consider, as part of its Investment strategy “whether the trustees of the fund should hold a contract of insurance that provides insurance cover for one or more members of the fund.”

This is a significant addition to the previous provisions, and has been prompted by the Super System Review panel noting that less than 13% of SMSFs have insurance. This is a subject on its own so please refer to my earlier article for guidance Self Managed Super Funds must include an Insurance Needs Analysis as part of the fund’s SMSF Investment Strategy.

It is important to update your investment strategy on an annual basis or more often if making large contribution or large investments to make sure you are maximising the probability of achieving your financial goals whilst reducing the risk of capital losses.

You can seek professional advice to help with your investment strategy, but remember: as trustee, you are still ultimately responsible for your fund’s investment decisions so next time you sign off a template provided by your administrator remember it is you that are responsible not them.

Please contact us on 02 9894 1844 or Liam@verante.com.au if you would like to review your current SMSF investment strategy, or need assistance in preparing an SMSF investment strategy that matches your members’ needs.

Are you looking for an advisor that will keep you up to date and provide guidance and tips like in this blog? then why now contact me at our Castle Hill or Windsor office in Northwest Sydney to arrange a one on one consultation. Just click the Schedule Now button up on the left to find the appointment options.

I’ll leave the last word or should I say video to the ATO

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　96993693, Mobile: 0413 936 299

PO Box 6002, NORWEST NSW 2153. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Advisory Pty Ltd ABN 41 621 447 345, AFSL 476223

Image courtesy of pakorn at FreeDigitalPhotos.net

4 Comments

by SMSF Coach - Liam Shorte on March 4, 2015 • Permalink

Posted in Audit, Investment Strategies

Posted by SMSF Coach - Liam Shorte on March 4, 2015

https://smsfcoach.com.au/2015/03/04/6-key-considerations-for-your-smsf-investment-strategy/

Multiple SMSFs may be a Smart Strategy for Property Investors

More than one fund! Am I kidding you? No I’m not as there are very valid reasons for using more than one SMSF for your investment needs.

To minimise Land Tax issues as detail further below but subject to State provisions;
To allocate certain assets for estate planning purposes to specific beneficiaries;
To keep a blended family superannuation interests separate;
To keep higher risk assets separate from other SMSF assets. (Retail shop with increased public liability risk);
To cater for separate risk tolerances for member of a family rather than running segregated accounts

So more on uses of multiple SMSFs by property investors

Land tax is a form of taxation applied to the value of any land that an individual or entity may own. For an individual their primary place of residence is normally exempt from Land Tax. Depending on your state or territory, land is a very broad term that encompasses vacant blocks of land, commercial and residential properties. I will be talking about NSW in this article.

Facts on NSW Land tax 2024

The Tax Year Threshold Rate for 2024 is $1,075,000

Tax on land value above the threshold $100 plus 1.6% up to the premium threshold.

Premium Threshold is $6,571,000

Tax on land value above the threshold is $88,036 for the first $6,571,000 then 2% over that

Strategy to manage land tax:

Land tax can be minimised by taking advantage of land tax thresholds that apply per entity not in aggregation. So Land tax can be controlled through the use of a separate Self Managed Super Funds (SMSF) for additional properties once you reach the exempt threshold ; .

Currently the Land Tax Free threshold sits at a land value of $1,075,000. Therefore any land value that exceeds this can be taxed at a rate as high as 2%. However, each SMSF is treated as a separate entity meaning each SMSF has its own $1,075,000 threshold. This allows property investors to hold their land across multiple SMSF’s in order to never exceed the threshold in any of these funds and in effect become exempt from land tax.

Example:

Sharon and Robert through their Love Property Superannuation Fund own an investment property in Castle Hill with land valued at $802,000 as part of a diversified strategy of their Self Managed Super Fund. Intent on expanding their property empire the couple has recently received pre-approval for an investment loan to purchase an additional property in Rouse Hill with land valued at $813,000. With this purchase the Love Property SMSF would have a combined Taxable land value of $1,615,000 obligating them to $8,740 in land tax.

However on speaking to their “SMSF Association Accredited SMSF Specialist Adviser“ (Yes you guessed ME!), Sharon and Robert set up a second Self-Managed Super Fund, Love More Property SMSF to purchase the second property. This means the land owned in their first SMSF is below the tax threshold and the land in their second SMSF is valued at below the tax threshold which effectively exempts Sharon and Robert from land tax. Running a second fund can be done for less than $2,000 per annum so a net saving of $6,740 per year or at least $67,400 over a 10 year property buy and hold strategy.

So you can see that multiple SMSFs are an effective tool to boost the returns of your property investment.

Be care of State Land Stax Legislation or Provisions

Strategy may not work in if there are grouping provisions. So please seek specialist tax advice.

https://www.sro.vic.gov.au/legislation/grouping

If you want to know see more about property in a Self Managed Super fund the go to the page https://smsfcoach.com.au/property-in-a-smsf/ for articles that cover most of the strategies and questions on this subject including Tips and Traps to be aware of in advance.

Feel you are falling behind? Then read 10 Tips For Salvaging Your Retirement Plans and then contact me for personal advice.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98993693, Mobile: 0413 936 299

PO Box 6002 NORWEST NSW 2153

40/8 Victoria Ave. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Advisory Pty Ltd ABN 34 605 438 042, AFSL 476223

Image courtesy of cooldesign at FreeDigitalPhotos.net

1 Comment

by SMSF Coach - Liam Shorte on February 27, 2015 • Permalink

Posted in Property, Tax Planning

Posted by SMSF Coach - Liam Shorte on February 27, 2015

https://smsfcoach.com.au/2015/02/27/multiple-smsfs-may-be-a-smart-strategy-for-property-investors/

Herd Mentality and Bubbles – Be Careful When Following the Crowd

Whether you are a long-term investor or an opportunist, many investors find comfort in knowing that many others are investing the same way they are and they get caught up in the media hype on a certain sector. Think of the Dot Com craze in the late 90’s when many invested in this sector even though they did not understand it well and as prices rose even the hesitant among investors poured more money in for fear of missing out or FOMO as I prefer to term it. A good adviser should help you identify the risk of these fads and keep you well diversified.

Here is a good educational video from Franklin Templeton Investments on the subject.

I believe that you always need to do your own research on an investment and then cross check that with others. Be prepared to listen to those who may seem wacky, over optimistic or pessimistic before making your decisions. A good Self Managed Super Fund advisor should be able to get you a selection of research from different sources to stress test any investment.

Bubble’s go back a long time, even centuries and while we are weary of each investment that crashes we rarely learn enough to avoid the next one. From my personal collection is one of my favourite prints called Gekko’s Tulip Mania which you may have seen in the movie Wall Street 2. I have it hanging on my office wall as a constant reminder! You can read more on this bubble at Wikipedia – Tulip Mania

“This is the greatest bubble story of all time… they call it the Tulip Mania.”
– Gordon Gekko

For those looking for a truly Australian history of bubbles I would recommend reading a 2003 paper by the John Simon and published by the RBA available free online called Three Australian Asset-price Bubbles

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

SMSF Coaching: Busting the Seven Key Myths About Bonds

Many SMSF investors are confident with shares, property and term deposits but when it comes to bonds they are feel like they hit a brick wall when they look for solid reasons to consider this sector.

I found this series of articles from Elizabeth Moran that looks at some of the myths around bonds and addresses them in detail. The series addresses the key concerns that SMSF investors mention to me when suggest a potential investment in a bond issue or bond fund. Most of the concerns are based on misinformation on the web and false rules of thumb. So, if you would like to learn more about bonds, this series of articles which looks at the “Seven Key Myths” is a good starting point.

Myth #1 My portfolio consists of shares and cash and I don’t need a bond exposure

Myth #2 It’s a bad idea to invest in bonds when interest rates or inflation are rising

Myth #3 Bonds are too risky

Myth #4. Fixed Income returns are low and will be a drag on my portfolio’s performance

Myth #5. You need a lot of money to buy bonds directly so go for a managed fund instead

Myth #6. There is too long to wait until maturity

Myth #7 I own hybrids so I already have an allocation to fixed income

Subscribe to keep updated

Subscribe to the SMSF Coach blog on the left hand column so that you don’t miss out educational articles like this.

As a thank you to FIIG I will also add a link to their SMSF Solutions page (Not a paid endorsement just a recognition of a good effort)

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

Join Us Image courtesy of Stuart Miles at FreeDigitalPhotos.net

1 Comment

by SMSF Coach - Liam Shorte on November 27, 2014 • Permalink

Posted in Bonds, Hybrids, Investment Strategies, Retirement Planning

Posted by SMSF Coach - Liam Shorte on November 27, 2014

https://smsfcoach.com.au/2014/11/27/smsf-coaching-busting-the-seven-key-myths-about-bonds/

SMSF Using an Unrelated Unit Trust for Property Development

Following on from my previous article How a SMSF can Purchase a Property with a Related Party – Using a 13.22c Trust , another strategy for those wishing to engage in property development with their SMSF involvement is for the fund trustee to invest in a unit trust that holds the development land / existing property by subscribing for units in the unit trust with partners so that no related entity group owns more than 50% of the units in the trust.

Where the fund trustee invests in an unrelated trust the trustee for the unit trust is not required to comply with the requirements of regulation 13.22C of the SIS Regulations. This means that the trustee for the unit trust can borrow to fund the land development without the fund trustee breaching the in-house asset rules in s71 of the SIS Act.

To make it very clear the unit trust will be unrelated if the fund trustee and its associates do not:

exercise Sufficient Influence; or
have a fixed entitlement to more than 50% of the income and capital of the unit trust; or
have the power to remove or appoint the trustee for the unit trust.

So each SMSF or related group of investors can own exactly 50% in combination between them and still maintain an unrelated trust and meet the above requirements.

Keep it simple as it is important that the units in the unit trust carry equal rights to income and capital so that you do not also trigger the non arm’s length income provisions under s295-550 of the Income Tax Assessment Act 1997 (1997 Act).

The diagram below shows 2 unrelated Self Managed Superannuation Funds investing in a unit trust equally (50/50) to carry out a property development. One of the SMSFs uses as related party loan to fund their purchase of the units. Remember it is only the units that are offered as security not the property in the trust.

Each SMSF contributes $350,000 and the property is developed for a total cost of $700,000 and sold for $1m. The$300,000 profit flow back through the Unit Trust to the unit holders equally.

Sufficient Influence

Where two unrelated SMSFs each hold 50% of the units in the unit trust, it is important that the trust management decisions are decided on a 50/50 basis. It should be very clear from documentation and minutes of the trust that decisions are made jointly.

How to avoid distributions to the SMSF being treated as non-arm’s length income?

Where the SMSF invests by way of a unit trust structure, any income received by the fund trustee may be treated as non arm’s length income and taxed at 47% under s295-550(5) of the Income Tax Assessment Act 1997 (1997 Act), where:

the parties are not dealing at arm’s length terms; and
the fund trustee receives an amount it would not otherwise have received if the parties were dealing on arm’s length terms.

Similarly, income the SMSF derives as a beneficiary of the trust, other than because of a fixed entitlement to income, will be treated as non arm’s length income and taxed at 47%.

Therefore, it is important to ensure that the unit trust is a fixed trust, meaning that the entitlement of unit holders to receive income and/or capital from the unit trust is fixed and indefeasible. However, even with a fixed trust it is necessary for the income to be no more than the income that would have been derived if the parties were dealing with each other at arms-length (s295-550(5)).

Managing powers of trustee appointment or removal

Again to avoid falling foul of the legislation, the constitution of the trustee company of the unit trust should be designed to ensure that the SMSF trustee and/or its associates do not have the power to control the trustee by effectively having the power to appoint and remove the trustee for the unit trust by reason that they hold a majority of the shares in the trustee. One trap is a constitution that allows the chairperson to have a casting vote where the chairperson is a SMSF Trustee or representative of the SMSF trustee.

Documentation

When the transaction is structured by way of an unrelated unit trust arrangement, the following documents should be prepared by an experienced legal expert (not off the shelf):

purpose specific unit trust deed and accompanying minutes of meeting; and
unit holders’ agreement all ensuring none of the requirements breached..

Gradual acquisitions of more units by the SMSF

Where a fund trustee invests in an unrelated unit trust the fund trustee may acquire the units held by the other party over time, subject to complying with the provisions of the SIS Act and keeping their related entity group to less than 50% of the overall trust units. Keep in mind that where the unit trust is land rich, there may be a corresponding stamp duty liability and there may be capital gains tax implications for the initial owner as well as valuation fees at each transaction date.

Remember the Sole Purpose Test

In the zest for undertaking any strategy I always remind clients about the reason for undertaking any investment. Your aim should be to provide for a better retirement. If that is not the core purpose then you are breaching the sole purpose test and should reconsider the whole strategy. Also you must review or amend your fund’s investment strategy to ensure this investment falsl within it’s guidelines..

Important information (emphasised for use of this material):

The information in this article is provided for illustrative purposes only and does not take into consideration your personal circumstances. You are encouraged to seek financial, tax and legal advice suitable to your circumstances to avoid a decision that is not appropriate. Any reference to your actual circumstances is coincidental. Magnitude, Verante and its representatives receive fees from the provision of financial advice.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Magnitude Group Pty Ltd ABN 54 086 266 202, AFSL 221557

Image courtesy of hywards at FreeDigitalPhotos.net

8 Comments

by SMSF Coach - Liam Shorte on October 3, 2014 • Permalink

Posted in Investment Strategies, Property

Posted by SMSF Coach - Liam Shorte on October 3, 2014

https://smsfcoach.com.au/2014/10/03/smsf-using-an-unrelated-unit-trust-for-property-development/

ATO SMSF Video: SMSF loans to you or your relatives

I get calls from people frequently who mistakenly believe that their SMSF can provide them with a loan or they can access their super whenever they like. This is not the case!

I have seen people with small businesses who get in short-term cash flow problems and think they can dip in to their SMSF to fund the business over the hard time. This is the most common breach of SMSF rules and the ATO is clamping down very hard on those who contravene the rules.

Your SMSF can’t lend money or provide financial assistance to a member or a member’s relative.
Investments by the trustees in arrangements which involve the members themselves, or related parties, are restricted, and more often than not, are NOT ALLOWED.

Watch this video from the ATO for more information.

Superannuation is meant to be the sole Purpose of providing Retirement Income to the members not support for their business. Too often that initial dip leads to larger withdrawals and a downward spiral. Remember if your business is in trouble then your Superannuation maybe the only asset actually protected in the event of Bankruptcy so don’t dip in!

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

ATO SMSF Video: SMSF Investment Strategy Explained

Your SMSF’s investment strategy is the framework that guides your investment decisions. It pays to have a good investment strategy that is regularly reviewed. Watch this video to learn what factors your SMSF’s investment strategy needs to take into account.

The following warning list should be considered for every investment . If the answer is yes to any of these then seek advice before committing to the investment. They may be possible but there are usually processes and limitations you must be aware of in advance.

Does the proposed investment involve any arrangement or transaction that involves the trustees acquiring an asset from a member or any person that is related, either personally or by business, to a member?
Does the proposed investment involve any arrangement or transaction that involves lending money to a member, relative or a member or related party? (includes companies and trusts).

Does the proposed investment involve any form of borrowing or future obligation to repay money? Check your Trust Deed and the Limited Recourse Borrowing Rules

Does the proposed investment involve any arrangement or transaction that would allow a member or any person or business entity that is related either personally or by business to a member to receive a financial or personal benefit from the asset?

So many people want basic ideas on what they can invest in with their SMSF. Just read my previous blog What can my SMSF invest in? for some details

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

1 Comment

by SMSF Coach - Liam Shorte on July 17, 2014 • Permalink

Posted in Checklists, Investment Strategies, SMSF Management

Posted by SMSF Coach - Liam Shorte on July 17, 2014

https://smsfcoach.com.au/2014/07/17/whats-in-a-smsf-investment-strategy/

Perpetual Makes Move to Reduce Exposure to Banks and Telstra

Well my jaw really dropped this morning when I saw a distribution statement from Perpetual Wholesale Industrial Share fund for a client with a distribution amounting to over 20% of the fund’s value. Perpetual had flagged a higher than usual distribution in their May – “Investing Matters” newsletter but the large distribution still caught most people by surprise.

Perpetual Wholesale Industrial Share Unit Price

Following the distributions hitting the bank accounts to-day I was one of the callers searching for an explanation from Perpetual. Well they got their act together and this afternoon (15th May 2014) they issued a statement and while I am a bit annoyed about how it was processed I think the Fund Managers have hit the nail on the head and are doing what we pay them to do i.e. Manage the risk in the portfolio and take strategic positions.

Their explanation of the reasons for the huge capital gain component of the distribution was clear and unambiguous.

What factors have driven the high distributions?
The Australian sharemarket has performed strongly over the past year, with the S&P/ASX 300 market up 10.1% over the 12 months to 30 April 2014. Both funds have performed exceptionally well over this period – the Perpetual Wholesale Industrial Share Fund has returned 12.9% over the past 12 months, and the Perpetual Wholesale Australian Share Fund has returned 14.9%.

Within this environment, we have adhered to our strong selling discipline of rotating into stocks with more attractive valuations and have realised profits in many of the largest overweight positions in the two funds.

Where have we realised capital gains?
Perpetual believes that the major Australian banks are now some of the most expensive banks in the world, and have reduced our exposure in these stocks over the past year accordingly.

Telstra has been a large and successful investment in the funds over the past five years. Over this period, the stock has gone from being one of the cheapest telecommunications stock in the world to being one of the most expensive. Earnings and dividends have remained relatively stagnant throughout and we have reduced our exposure in the stock.

Fox, previously part of News Corporation, was another large weighting which has performed strongly (+100%) and has subsequently been de-listed in Australia. We have deemed it prudent to reduce exposure to Fox as it leaves the Australia Stock Exchange.
Large selling of Crown and Resmed driven by valuations of these stocks also saw large capital gains in the funds.

Perpetual’s move has mirrored my own feelings on some of the Top 20 stocks over the last 6 months and I am pleased they have been pro-active in their funds management.

My one concern for Perpetual is that while many have distribution reinvestment plans in place, others don’t and I can foresee that many will not reinvest cash distributions back to this manager and will look to use the distributions to add diversity to their portfolios via international or mid-cap stocks. It’s a shame that a positive move by the fund manager may result in negative funds flow.

I am happy to disclose that this fund has been a core part of many of my clients portfolios for more than 15 years and their track record has been excellent.

I also wonder if the sell down by Perpetual and others has masked the effect of the huge move from term deposits to direct shares by retail and SMSF clients in search of yield. There could be pain ahead for those late on the bandwagon.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

2 Comments

by SMSF Coach - Liam Shorte on July 15, 2014 • Permalink

Posted in Investment Strategies, Tax Planning

Posted by SMSF Coach - Liam Shorte on July 15, 2014

https://smsfcoach.com.au/2014/07/15/perpetual-makes-move-to-reduce-exposure-to-banks-and-telstra/

SMSF Investing – Understanding Home Country Bias

After a few weeks of late nights and early mornings catching up with the World Cup only to see the Australian Team drop out of contention I was looking to see if any lessons can be learned from the World Cup experience. Even-though the Socceroos did so much better than expected they were faced with teams from countries with much more talent, focus on football and monetary support behind them and we often find the same when comparing the Australian investment scene with markets overseas.

Here is a great little video on “Home Country Bias” by Franklin Templeton Investments that I just had to share.

https://youtu.be/CagdMM9hVUI

In Australia there are a number of excellent reasons to have a bias to Australian Investments for Self Managed Super Fund trustees and franking credits is one of them as well as the tendency for our companies to pay higher dividends in general than their overseas counterparts. See The added value of franking credits in a SMSF Portfolio for more details.

I explore the need for asset allocation to International shares and the effects of home country bias in more detail in this article SMSFs – allocation to international shares

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

1 Comment

by SMSF Coach - Liam Shorte on June 24, 2014 • Permalink

Posted in Asset Allocation, Franking Credits

Posted by SMSF Coach - Liam Shorte on June 24, 2014

https://smsfcoach.com.au/2014/06/24/smsf-investing-understanding-home-country-bias/

Loss Aversion – What Can Golf Teach SMSF Trustees About Investing

Have you lost your confidence in your investment capabilities because of a recent investment loss? Why does that fear after a loss cause you sleepless nights and possibly to forego new opportunities and lose sight of your long-term goals? This video, from Franklin Templeton Investments, which explains the concept of “loss aversion” might help you.

http://youtu.be/j_uDWiepJEM

As an SMSF Coach to Trustees of Self Managed Superannuation Funds and anyone who manages a portfolio of investments I help people focus on the big picture and put both the wins and the losses in to the proper perspective. I truly believe that if you understand your investments clearly and also understand the market dynamics and movements that resulted in a share, property or managed fund having done so well or so poorly then you are less likely to have a knee-jerk reaction and to make a better informed decision on your next move.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

Woodside “Selective” Buyback – SMSF Investors Overlooked

This guest post is reproduced with permission from Dr. Don Hamson of Plato Investment Management from their press release and I am glad to see a fund manager stand up for the retail investor.

Plato Stands Up For SMSF & Superannuation Pension Investors

Yesterday, Woodside Petroleum announced a buyback of 9.5% of its issued capital. The buyback will be structured by way of a small capital component and a fully franked dividend of approximately $28. The headline “cash” value of the buyback is $36.49 which is 11.7% below today’s opening price. However, we estimate the value including franking credits to be $48.50, or approximately 17% above that price. Australian charities and pension phase superannuation investors receive full value for franking, and thus would potentially gain 17% if they could participate in the buyback on the same terms.

However, the buyback is a “selective buyback” and only one shareholder, Royal Dutch Shell, will benefit from the franking credits distributed in the buyback. This is unfortunate news for our pension and charity investors who could have potentially received a 17% benefit ($48.50 versus this morning’s opening price of $41.34). This is yet another example of the market wide myopia that seems to afflict too many decision makers when it comes to considering the position of pension and charity investors. Not only do fund managers consistently fail to recognise the value of franking credits to zero tax class investors, but also listed companies and investment bankers seem to ignore them as well. Plato was the only fund manager to raise the issue in the scheduled teleconference call and we will continue to remain in dialogue with company management.

That said, the lasting effect of the buyback is likely to be positive, with Woodside estimating the reduction in shares will boost earnings and dividends per share by approximately 6%.

Shareholder approval is required for the selective buyback to proceed, and it will be interesting to follow the media coverage regarding the vote (Sydney Morning Herald). Plato’s view is that the deal could have been structured in a way that enabled all investors to access the buyback. Whilst we believe Woodside’s buyback announced yesterday is value accretive we have questioned why the buyback is selective in nature rather than opening up the deal to allow low-tax investors the same opportunity to benefit from the value of franking credits as is being offered to Shell.

3 Comments

by SMSF Coach - Liam Shorte on June 19, 2014 • Permalink

Posted in Franking Credits, Pension Strategies, Retirement Planning, Tax Planning

Posted by SMSF Coach - Liam Shorte on June 19, 2014

https://smsfcoach.com.au/2014/06/19/woodside-selective-buyback-smsf-investors-overlooked/

How a SMSF can Purchase a Property with a Related Party – Using a 13.22c Trust

Let’s say you have a successful business Widgets Pty Ltd, which is looking for bigger commercial premises to expand but the cost is out of your personal or SMSF budget on their own.

One way you can purchase a property with your SMSF and a related party as co-owners is to establish a unit trust to purchase the property. For this to work you must ensure that the strategy complies with the SIS Act 1993 and in particular Regulation 13.22C of the Superannuation Industry (Supervision) Regulations 1994 at all times.

Here is a simple practical example of how this strategy works:

Nancy & Colin have an SMSF that has $250,000 that they would like to invest in a commercial property. In their personal names, they also have the ability to borrow $350,000 against their home that they would like to invest in property.

A unit trust is established and their SMSF purchases $200,000 of units leaving $50,000 liquidity in the fund and they purchase $350,000 of the units personally which funds the unit trust with $550,000 in cash and the SMSF owning 36% and Nancy & Colin owning 64%.

The unit trust then uses this money to purchase an Industrial Unit/ commercial property, pay for any purchase costs such as transfer duty and legal fees and maintains some extra funds in a bank account for some liquidity.

The unit trust enters into the lease with Widgets Pty Ltd as tenants, receives the rent and pays the expenses such as rates, insurance and repairs. The net income is then distributed to the unit holders based on their ownership. In the scenario above the super fund would receive 36% of the net rent and Nancy & Colin would receive 64%. Each owner would include their share of the income in their tax returns.

This is called a 13.22C Ungeared Trust and works well for simple scenarios where you wish to buy a property and your SMSF can contribute towards the cost.

Advantages:

The SMSF can in later years later acquire more units from the related party which allows it to increase its ownership of the property. The idea would be to have the property eventually owned 100% by the fund and the money paid to Nancy & Colin for the units is used to pay down their personal loan. This is not possible when a Self Managed Super Fund and related party co-own a property as tenants in common unless it is business real property;
The related party and/or the SMSF can subscribe to new units in disproportionate amounts if more capital is needed for improvements or renovations;
The related party (Nancy & Colin in the above example) can borrow to acquire their units in the unit trust (generally by offering another asset such as their home as security) and then claim the interest on the loan as a personal tax deduction because the trust is income-producing. This effectively allows them to gear their share of the ownership much like they would if they owned it as a tenant in common with the SMSF.

Disadvantages:

The unit trust must comply with the provisions of 13.22c at all times. Any breach of any of the provisions will mean that the trust is subject to the in-house asset rules which limit the value of this investment in the fund to 5% of its assets. This almost always means that the SMSF must dispose of its investment in the trust even if the breach is rectified;
There are additional costs to establish this structure due to the set-up of a unit trust (and corporate trustee if desired);
There are additional costs to run this structure because the unit trust is a separate entity and must lodge a tax return;

SUMMARY OF 13.22c RULES:

To meet the requirements of SIS regulation 13.22C, the trust must:

Be a unit trust;
Have no debt and not allow any security to be taken over its assets;
Have no lease arrangement with a related party other than one relating to business real property;
Not acquire an asset (other than business real property) from a related party;
Not lend money to any entity other than an authorised deposit taking institution (eg, a bank);
Not conduct a business. Therefore, depending on the size and scale of the development, the trustee should consider engaging a third party to develop the land for a fee.; and
Not own an interest in another entity – which means it cannot own shares or invest in another trust.

Broadly, this means the trust will only own residential or business real property and cash on deposit.

Other consequences you may have to consider

Some of the transactions outlined above could have capital gains tax (CGT) implications and
may be subject to duty as the trust may be or in the future become be a ‘land rich entity’ under the various state Duty Acts.

However, with careful planning, these outcomes can be managed in some circumstances. For example:

If the Units are disposed of by the SMSF during pension phase they would generally be CGT-free;
Some of the different States Duty Acts offer concessions in some form or another where there are transactions between an SMSF and its members; and
The related party may be able to utilise the small business CGT concessions when disposing of units in the trust.

Not a strategy to prop up a failing business:

A holding in a 13.22C trust that is not owned by an SMSF may be offered as security for a loan. If this is done, the interest would potentially be available to the owner’s creditors if the business failed.

SMSF trustees who co-invest in such a trust need to consider the risks involved, which could be considerable if the SMSF is a minority unit holder and the trust came to be directly controlled by creditors.

The trustee of the unit trust would need to conduct its affairs on a purely arm’s length basis to avoid audit problems for the SMSF investors including:

Putting in place a lease agreement on commercial terms
Ensuring rents are collected promptly and no leeway uis provided because of the relationship (you need to be as hard or harder than if you were unrelated)
Ensuring proper liability insurance and property insurance is maintained on the property.

As mentioned above if any of the conditions in Regulation 13.22C are not satisfied, the SMSF’s units in the unit trust will be treated as an in-house asset of the SMSF and the in-house exception in Regulation 13.22C cannot be subsequently applied even if the breach is rectified (refer to Regulation 13.22D(3)).

We also refer you to Taxpayer Alert TA 2012/7 where the ATO warns SMSF trustees and advisors to exercise care ensuring any arrangements entered into by a SMSF to invest in property are properly implemented, particularly those involving LRBAs or the use of a related unit trust.

This is a strategy where you must include your Accountant and a SMSF Specialist Advisor to ensure you get the process correct and run the strategy correctly going forward. We are happy to work with your current accountant on any strategies.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

7 Comments

by SMSF Coach - Liam Shorte on June 3, 2014 • Permalink

Posted in Property

Posted by SMSF Coach - Liam Shorte on June 3, 2014

https://smsfcoach.com.au/2014/06/03/how-a-smsf-can-purchase-a-property-with-a-related-party-using-a-13-22c-trust/

Benefits Of Transferring A Business Property In To Your SMSF – Superannuation Strategy

Years after the 2008 financial crisis and some people have been slow to regain confidence in the share markets and low cash and term deposit interest rates leave them cold. A growing number of people have considered shifting their superannuation to the more self- directed option of a self-managed superannuation fund (SMSF).

Small to Medium Business owners have always been at the forefront of adopting SMSFs and they have been particularly interested in this rapidly growing area for greater control of their superannuation savings and the flexibility of investments allowed in a SMSF structure. However the ability to either transfer their business premises into their SMSF via a contribution or sale, depending on their cash flow circumstances, has been attractive to many business owners.

Current legislation governing SMSFs, the SIS Act, allows a SMSF to acquire only three types of assets from the members or a related party. These assets are business real property, widely held managed funds and listed securities (shares).

Business real property is best defined as “any freehold or leasehold interest of the entity in real property where the real property is used wholly and exclusively in one or more businesses (whether carried on by the business or not).” This definition does not allow much leeway so you should seek professional advice to ensure that your property satisfies the requirements of the “wholly and exclusively” business use test and meets the definition of business real property prior to implementing this strategy

Benefits:

Release equity to build the business – you can access superannuation funds to help fund business growth prior to retirement by way of a cash purchase by the SMSF.
Tax minimisation – the property moves in to the concessionally taxed superannuation environment; 15% tax rate while members are in accumulation phase or exempt from tax when members are in pension phase.,
Asset Protection – to protect the value of the business real property in the event of bankruptcy, litigation or changes to your industry destroying your market.
Build funds for retirement – you have a bricks and mortar investment to boost your retirement funds earning market rent at concessional rates with the ability to avoid any CGT if sold later.
If you are seeking new premises then buying in your super fund allows you the security of tenure that comes with being your own landlord.
Helps in preparing a business for transfer or sale. If the new owner or family members cannot afford to buy the business and the property, you can sell the business premises and lease them the property.

Risks:

You should always ensure the strategy meets the Sole Purpose test of providing for your retirement. It should stack up as a stand-alone investment in its own right.
If your business should fail and you can no longer lease the premises the you are hit with a double whammy with no income in your personal name and possibly an asset that is hard to lease to a new third-party
While it may be a sound investment now, things may change and your company may outgrow the premises leaving you again with a commercial property that may be hard to sell to extract equity for your next move.
Commercial, retail and industrial property is often a good income orientated investment with income well above that available from residential property but rarely sees the same degree of capital growth. You need to be aware of the trade-off and a diversified portfolio should be considered.
Once you are in pension phase you will need to fund pensions so you need to ensure liquidity in the fund. This is fine while rented or you can make contributions but remember if not working after age 65 you cannot make further contributions to help with liquidity.

Transfers of business real property purchased from related parties must be transferred at current market value as if the transaction was to occur on an arm’s length basis. This requirement allows for very little manipulation of the market value and heavy penalties could apply if any transfer value didn’t stand up to audit and ATO scrutiny.

So you have three or more options when it comes to the strategy. Your SMSF can buy the property utilising cash currently within the SMSF as a normal purchase. If your fund does not have enough cash then you can look at using a Limited Recourse Borrowing Arrangement to borrow the shortfall. More details on that strategy can be found here.

Alternatively, you can structure the deal as an in-specie transfer (a contribution of an asset, in this case property, instead of cash). You are still subject to member contribution caps but we have moved properties worth up to $500,000 in for couples and $1,000,000 where the SMSF had 4 members using a combination of concessional contributions limits and the 3-year bring forward rule on non-concessional limits.

You may also be able to use the Small Business CGT concessions in conjunction with a short term LRBA to move a property of up to $1.445,000 in to the fund with careful planning.

The whole deal has been sweetened by the fact that a number of the State Revenue Offices including NSW OSR have allowed concessional stamp duty stamp ($500) on in-specie property transfers whereby no cash has changed hands. This stamp duty saving can make transferring the business premises into a SMSF much more attractive. It should be noted that stamp duty is a state tax with no uniformity between states. Please seek legal advice always when dealing with stamp duty on property transfers and tax advice when moving assets between entities.

Remember the core philosophy behind Superannuation is that they must adhere to the Sole Purpose Test. While a strategy may help your business currently, its primary goal should be to provide for your retirement so the investment should always stand up as a viable investment regardless of your internal lease arrangements.
Check out the most common mistakes people make when dealing with property, borrowing and a SMSF here:

Property through super in a SMSF – Part 3: 20 most common mistakes

SMSF Borrowing: What Can I Do With An Investment Property Within The Rules.

Stamp Duty on Transfers of Property to an SMSF as at 01 Jan 2015

Keep updated by putting an email address in on the left hand column and pressing the “Sign me up!” button.

Bye for now.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02 9899 3693 , Mobile: 0413 936 299

PO Box 6002, Norwest NSW 2153

40/8 Victoria Ave. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Advisory Pty Ltd (ABN 34 605 438 042) (AFSL 476223)

4 Comments

by SMSF Coach - Liam Shorte on March 5, 2014 • Permalink

Posted in Borrowing, Contribution Strategies, Investment Strategies, LRBA, Property

Posted by SMSF Coach - Liam Shorte on March 5, 2014

https://smsfcoach.com.au/2014/03/05/benefits-of-transferring-a-business-property-in-to-your-smsf-superannuation-strategy/

Landlords Insurance – a must for your SMSF Property

I trained in General Insurance in the UK after my Graduation and much of that time was in the complaints, claims and product design departments. So I know how things go wrong when people take out unsuitable policies or under-insure their properties. 24 years later and nothing has changed, so I have been recommending people use a General Insurance Broker if they are inexperienced, lack confidence or want help and advice about insuring their business, liability or property assets.

That brings me to the title of this blog and I asked my preferred Insurance Broker here in the Hills District of Sydney, who operates countrywide, to explain the insurance requirements for an SMSF buying property

Don’t skimp on your insurances because when the time comes and you have a claim, you won’t be congratulating yourself on how much money you saved on your insurance premiums.

If you have purchased property in your SMSF it is important for you to take the correct steps to insure your investment.

If you borrow against the assets in your SMSF the mortgagor will require you to have adequate cover for the asset and for the Liability obligations of the SMSF. If the assets of the fund cover the purchase in full however you are still required as Trustee of the fund to correctly insure the funds interests. The fund is not permitted to “self-insure” any assets or property. The ATO has strict guidelines regarding the duties and obligations of SMSF trustees so it is important to get your insurance program right.

The question arises: who takes out the property insurance and landlord’s protection insurance, the SMSF Trustee or the Holding Trustee? I refer to this content from Towsends Law on the matter

SMSF Trustee
The SMSF Trustee is entitled to take out insurances for the property as the Fund is liable under the loan and is also absolutely entitled to the benefit of the Property.

As the Fund is ultimately the party that is detrimentally affected should anything happen to the Property, the SMSF Trustee should ensure that the Fund is able to claim for any damage that might occur.

Holding Trustee
The Holding Trustee is the legal owner of the land and is entitled to insure the property against damage, and likewise for landlord insurance. Some lenders may also insist that the registered proprietor of the property holds an insurance policy for the property.

But it is important to keep in mind the nature of the arrangement between the SMSF Trustee and Holding Trustee should insurance be taken out by the Holding Trustee.

As the Holding Trustee is a bare trustee it must make sure that it does not take any action unless it is directed to do so by the Fund Trustee, who is absolutely entitled to the Property. This direction by the Fund Trustee should be done formally and in writing and confirmed by the Holding Trustee executing minutes to confirm this action.

Final Decision
The final answer is that both the Holding Trustee and the SMSF Trustee have an insurable interest in the land and that both are eligible to be the owner of the property insurance and landlord’s protection insurance over the property.

In both instances all amounts payable in respect of the insurance should be paid by the Fund Trustee. Obviously the Holding Trustee must hold any policy proceeds on trust for the SMSF.

From a purely administrative position it would be easier for the SMSF to hold the insurances to avoid the constant but mandatory interplay between the SMSF and its bare trustee the Holding Trustee. But the insurance company may have its own requirements as might the Fund’s Lender.

So our preference is to have all insurances for the SMSF in the name of the fund. You cannot have personal items or assets listed on a policy in your funds name, and likewise you cannot have your fund’s assets listed on a personal policy for some of your personal assets.

As with all insurances, you really do get what you pay for. The more optional extras you include in your policy the more protection you will have. Let’s go through a fairly standard Landlords Insurance policy and give some simple definitions of each section. Like your personal household insurance policy your landlord’s policy will have cover for both your Building and for your Contents. These are fairly standard; however it is important to read the definitions to determine which items come under which section of cover. You may be in for a surprise if you haven’t studied the wording properly.

Where a Landlords Insurance policy differs in comparison to your standard household insurance is in the additional covers offered.

Loss of Rent – This is to cover your lost income if you have a claim under your building and contents cover, and the property becomes uninhabitable as a result.
Strata Title Mortgagee’s Protection – This covers the mortgagee named in the Schedule as if they were “You” on the same terms as Section1 against physical loss or physical damage caused by any of the Defined Events (it does not include the Additional Benefits).
Deliberate Damage and/or Theft by Tenants – Cover for physical damage arising from deliberate, intentional or malicious acts and acts of theft to the Building or Contents by the Tenant.
Tenant Default – This cover if for loss of rent, payable by the Tenant, which arises from damage covered under the Deliberate Damage/Theft by Tenant section above or from breach of a written Lease agreement.

Chances are you’ve worked hard at acquiring your assets and building your Super for your retirement. Don’t skimp on your insurances because when the time comes and you have a claim, you won’t be congratulating yourself on how much money you saved on your insurance premiums. Instead you will be hoping your insurance policy will respond to your claim.

If you’re at all unsure on what you need, talk to an Insurance Broker. If you don’t know an insurance broker, then speak to the people you trust with your Investments and your accounts because they should be able to put you in touch with an Insurance broker they trust.

For more information please don’t hesitate to contact me.

The SMSF Coach or Verante Financial Planning do not request or receive any commissions or referral fees from recommending services from Insurance brokers, we just want the best professional advice for our clients.

For more detail on Investing in Property through an SMSF check out our previous articles

Property through super in a SMSF – Part 1: Background

Property through super in a SMSF – Part 2: The Process

Property through super in a SMSF – Part 3: 20 most common mistakes

SMSF Borrowing: What Can I Do With An Investment Property Within The Rules.

Can I borrow to buy a house and land package off the plan in my SMSF?

Keep updated by putting an email address in on the left hand column and pressing the “Sign me up!” button. Happy to take comments in the section below.

Bye for now.

Liam Shorte B.Bus SSA™ AFP

Financial Planner & SMSF Specialist Advisor™

Tel: 02　98941844, Mobile: 0413 936 299

PO Box 6002 BHBC, Baulkham Hills NSW 2153

5/15 Terminus St. Castle Hill NSW 2154

Corporate Authorised Representative of Viridian Select Pty Ltd ABN 41 621 447 345, AFSL 51572

2 Comments

by SMSF Coach - Liam Shorte on February 12, 2014 • Permalink

Posted in Borrowing, Investment Strategies, Property

Posted by SMSF Coach - Liam Shorte on February 12, 2014

https://smsfcoach.com.au/2014/02/12/landlords-insurance-a-must-for-your-smsf-property/

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All posts in category Investment Strategies

Caroline Harley | Special Counsel

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So more on uses of multiple SMSFs by property investors

Facts on NSW Land tax 2024

Strategy to manage land tax:

Example:

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Sufficient Influence

How to avoid distributions to the SMSF being treated as non-arm’s length income?

Managing powers of trustee appointment or removal

Gradual acquisitions of more units by the SMSF

Remember the Sole Purpose Test

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Here is a simple practical example of how this strategy works:

Advantages:

Disadvantages:

SUMMARY OF 13.22c RULES:

Other consequences you may have to consider

Not a strategy to prop up a failing business:

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Don’t skimp on your insurances because when the time comes and you have a claim, you won’t be congratulating yourself on how much money you saved on your insurance premiums.

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