SMSF trustees making purchases of business real property from a related party for inclusion in their fund need to ensure the transaction is not a proxy for a loan to a member to avoid breaching trustee obligations, a technical expert has warned.

Colonial First State head of technical services Craig Day said SMSF trustees could make certain purchases from a related party, but any transaction had to be carried out at market value and without any obligations attached.

“There is a need to watch out for financial assistance because a fund is prohibited from lending money or providing any form of financial assistance to a member or a relative of a member,” Day said during a session on the use of lumpy assets in an SMSF at the recent Tax Institute National Superannuation Online Conference.

“Financial assistance includes a wide range of circumstances and can include any security, obligation or lien over fund assets that provides financial assistance to a member where it relies upon assets of the fund.”

He said it did not matter if the assets of the SMSF were impacted or not, but rather as soon as a member, or a relative of a member, relies on the assets to get financial assistance it was a breach of section 65 of the Superannuation Industry (Supervision) Act.

Any form of financing arrangements would also create a breach as an SMSF member cannot provide any sort of assistance that would constitute or look like the provision of finance to a member or a relative of a member, he said.

“An example that has been given of this is where a member owns commercial property and sells it into their SMSF, and uses the capital released to invest into their business and then later arranges to buy the business real property back off the fund in the way that would constitute the repayment of a loan,” he said.

“Most people would never do this because of the transaction costs involved, but if someone is desperate for investment, but can’t get a bank loan, then you do see these types of arrangements, and it is financial assistance and it breaches section 65.”

Jason Spits
October 26, 2020
smsfmagazine.com.au