There are now over five hundred thousand Self Managed Superannuation Funds (SMSFs) in Australia where the members of the fund are also the trustees. These trustees are responsible for running the fund according to the superannuation rules. If they get it wrong, the consequences can be dire. Each year, SMSFs lose their concessional tax allowance because the trustees recklessly or persistently ignored the rules.
The superannuation rules aim to ensure that superannuation is for your retirement and is not used for other purposes or invested recklessly. One rule bans a fund from giving financial assistance to members of the fund or their relatives. Whilst this sounds simple, it pays to understand how the rule works.
To reduce the risk of making an honest mistake, most trustees work with professional advisers to ensure they legally enjoy the flexibility and control that a SMSF offers.
Who counts as a relative?
The list of relatives in the rules is long and includes everyone you would expect including parents, grandparents, children, siblings, uncles and aunts and nephews and nieces.
The rules also prohibit schemes where financial assistance is provided to a non-relative who then provides support to a relative. Attempting a scheme like this is asking for trouble because it shows you knew the rules and were trying to get around them.
What is financial assistance?
Transactions that are banned by the rules include the following:
• Gifts and loans;
• Selling an asset to a member for less than its value;
• Buying an asset from a member for more than its value;
• Buying services that are unnecessary or at inflated prices;
• Providing a guarantee or security using fund assets.
Here are some examples…
1. A SMSF holds works of art and the trustee gives a painting to his daughter as a birthday present. This obviously breaks the rules. If the trustee paid market value to the fund for the painting, he could then legally make the gift.
2. A SMSF owns a workshop that is leased to a business run by a member of the fund. The business has cash flow problems and misses the monthly rent payment. No action is taken to recover the debt and the fund is therefore providing assistance to the member.
3. A SMSF buys a printing machine and leases it to a business run by the members of the fund. When the lease expires, the business buys the machine from the fund at market value plus a margin to compensate the fund for the use of the money. This transaction is effectively a loan to the members and breaks the financial assistance rules.
4. A SMSF owns a block of land and the trustee sells it to her son at the market price. The son arranges to pay for the land in twelve instalments. Apart from exposing the fund to the credit risk that the son may default on the loan, the transaction breaks the financial assistance rule.
These are only a few examples of what you can’t do as a trustee of a SMSF. The rules are many so if you’re not sure, please make sure you consult your SMSF specialist before you do anything.
Source:
www.ato.gov.au/superfunds “Self-managed super fund statistical report” – June 2013
www.ato.gov.au
If you wish to discuss SMSFs and gift-giving further and the legal responsibilities involved, please do not hesitate to contact our expert SMSF team at Leenane Templeton.
Call (02) 4926 2300 or email us.