In another harsh interpretation by the ATO, they has recently released an interpretative decision which says that insurance held in a self managed superannuation fund (SMSF) to fund a buy-sell agreement may breach the sole purpose test and the prohibition on giving financial assistance.
Darth from the ATO
In this interpretative decision the ATO explored a situation where a member of an SMSF and his brother run a business through a company in which they were the only two shareholders.
The SMSF member and his brother entered into a buy-sell agreement. The terms of the agreement required:
- the SMSF to purchase a life insurance policy over the life of the member with the insured amount based on an agreed market value of the member’s shares in the company;
- the company to make contributions to the SMSF which the SMSF trustee would then use to pay the premiums on the insurance policy. These contributions were in addition to superannuation guarantee contributions and salary sacrificed contribution; and
- on the death of the member:
- the insurance proceeds were to be paid to the SMSF trustee who would then add the proceeds to the member’s benefits;
- the SMSF trustee would then pay the deceased member’s death benefit (including the policy proceeds) to their spouse; and
- the deceased member’s shareholding in the company would be transferred to the member’s brother for nil consideration and the deceased member’s spouse will relinquish all claims to that shareholding in the company.
The ATO ruled that the SMSF trustee’s purchase of the life policy contravened both the sole purpose test under section 62 and section 65(1(b) of the Superannuation Industry (Supervision) Act 1993 (SIS Act) which covers the giving of financial assistance by an SMSF to a member or their relative. Breaching the sole purpose test and/or the financial assistance provisions can lead to the SMSF being non-complying and significant monetary penalties being imposed on the SMSF trustees.
Sole purpose test
Broadly the sole purpose test requires an SMSF to be created for the core purposes of providing retirement benefits and death benefits.
Whilst historically the ATO has provided guidance that superannuation funds involved in buy-sell arrangements would not contravene the sole purpose test, the ATO’s decision in ATO ID 2015/10 represents a new position taken by the ATO. Under this new position the ATO indicates that in assessing whether the sole purpose test is met, it will look at all the wider circumstances surrounding a trustee’s decision to make an investment or carry out a particular activity. In the context of buy-sell arrangements this involves the manner and circumstances in which the SMSF are to hold the insurance policy.
Subsection 62(1) of the SISA expressly allows an SMSF to be maintained for the provision of death benefits.
However, the manner and circumstances in which the SMSF came to hold the policy in question caused the ATO to conclude that the benefits sought by the parties of the agreement cannot be regarded as being merely incidental to the core purpose of providing death benefits. The buy-sell agreement is a major component of the member’s and his brother’s company succession plan.
- The SMSF is required to use contributions made to it in a manner that may not accord with its investment strategy. The SMSF is essentially directed to invest contributions made to it in an asset it may not otherwise choose to hold.
- Having the policy held in the SMSF enables the member’s brother to gain total ownership of the company after the member’s death without personally incurring any expenditure. This immediate benefit to a related party (who is not a member) of the SMSF cannot be described as something that is incidental, remote or insignificant provided to the members of the fund.
Financial assistance provided to a relative of a member
In addition to the sole purpose test concerns discussed above, as the terms of the agreement allow the member’s brother to obtain total ownership of the company upon the member’s death without the need to pay any consideration, the SMSF was also seen to be providing financial assistance to a relative of the member (eg the brother). S.65 of SISA prohibits a SMSF trustee from assisting a member or relative of a member using the fund’s resources. The ATO concluded that the arrangement constituted the provision of financial assistance to the member’s brother which is in breach of section 65(1)(b) of the Act.
What should SMSF’s involved in new buy-sell agreements do?
Although ATO ID 2015/10 is not a binding public ruling, it outlines the ATO’s current position on superannuation and buy-sell arrangements. SMSF trustees and their advisers considering new buy-sell arrangements with the ownership of the policy held in superannuation (SMSF or retail) should consider alternative ownership structures instead.
Existing SMSF arrangements
Unfortunately despite ATO ID 2015/10 representing a change of position by the ATO on buy-sell arrangements, the ATO has not outlined any grandfathering provisions in relation to existing buy-sell arrangements where SMSFs have been involved on the basis of the ATO’s previous view that the sole purpose test was not breached.
As a regular review of the SMSF’s investment strategy is required, which also involves a review of the fund’s insurance arrangements, this review should prompt a discussion by the Trustee(s) around whether existing insurance cover is still required and whether it is still appropriate to hold the cover inside or outside of superannuation.
When conducting such investment strategy reviews, Trustee(s) who have existing buy-sell insurance arrangements funded through their SMSF are encouraged to:
• discuss their options with the fund’s auditor, and/or
• seek SMSF Specific Advice, relevant to their arrangement, from the ATO.
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 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
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