Limited recourse borrowing arrangements – LRBAs

Transfer of loan amounts flagged as vital compliance step for LRBAs

         

 

With greater numbers of SMSFs turning to related-party loans after several banks withdrew from the SMSF lending space, a law firm has stressed the importance of ensuring that an actual transfer of money has taken place.

In an online article, Townsends Business & Corporate Lawyers explained that, with borrowing options becoming more limited and SMSFs using related-party loans to fund property purchases, it’s vital that SMSF professionals and their clients are undertaking all the necessary compliance steps.

“When it comes to related-party borrowing, the importance of actually transferring the loan amount from the lender to the borrower, or to the vendor at the direction of the borrower, is sometimes overlooked, particularly in the circumstances where the same individual is the vendor, the lender and the fund trustee,” Townsends said.

The law firm cautioned that, if SMSFs are considering these types of transactions, just having formal loan documents noting the arm’s length loan terms may not be sufficient.

“The ATO’s current view is that there needs to be a transfer of money from the lender to the borrower as a necessary feature of a borrowing as referred to in the Superannuation Industry (Supervision) Act 1993,” it said.

“Journal entries or set-offs do not meet the requirements of a borrowing. The ATO has relied on old rulings in other contexts to distinguish loans from financial accommodation.”

The law firm gave an example of John, the sole member of an SMSF and sole director of the fund’s corporate trustee.

“After seeking financial and tax advice on the benefits of owning a property in his SMSF, John decides to sell his investment property valued at $1 million to his SMSF. As his SMSF’s available balance is $200,000 short of the market value, he will enter into a contract with the SMSF for a loan of $200,000 to fund its purchase using a limited recourse borrowing arrangement,” Townsends explained.

“In lieu of paying the loan amount to the SMSF, he received $800,000 as the vendor from the SMSF on settlement, the $1 million sale price less his ‘loan’ of $200,000 to the fund. But is that $200,000 really a loan?”

Townsends warned that, in this example, John should have actually transferred $200,000 from his personal account to the fund as an advance of the loan amount, and received the whole $1 million on the settlement of the property sale contract. 

“If the transaction is deemed to be an arrangement other than a loan, the LRBA exception under the SIS Act will not apply and this may expose the SMSF trustee to civil or criminal penalties and place the SMSF’s complying status at risk,” it said.

 

Miranda Brownlee
18 April 2019
SMSFadviser.com

 

More Articles

Complex rules of small business CGT concessions can present challenges

The complex rules around small business capital gains tax concessions can eliminate tax on a business sale and...

Read full article

IGR predicts drawdowns will be major source of retirement income

Drawdowns from superannuation are projected to increase to almost six per cent of gross domestic product (GDP...

Read full article

Retirees hardest hit by inflation

Retirees are being hit harder by rising prices than the general population, with the costs that dominate their...

Read full article

The retirement gap we don’t talk about

Retirement confidence isn’t just about your nest egg, it’s about your plan.   Retirement...

Read full article

The three phases of retirement: Key decisions at every stage

Retirement starts long before your last day at work.   Retirement starts long before your last day at...

Read full article

Children as SMSF dependents very complex

The definition of children as dependants under superannuation law is not straightforward when dealing with...

Read full article

Two Cautionary Tales About Resources Important to Anyone Using a Domain Name or Website

This warning is new, but the reason for forgetting to renew a domain name isn’t.   1. Not renewing...

Read full article

Check out the smartest species on earth: Data from 200M BC to 2026

Check out the evolution of animal intelligence from the Jurassic Period (~200 million years ago) to 2026...

Read full article

Heathmont Financial Services Pty Ltd (ABN 68 106 250 104) trading as Heathmont Financial Services is a Corporate Authorised Representative (No. 262098) of Knox Wealth Management Pty Ltd (ABN 74 630 256 227), Australian Financial Services Licence Number (AFSL) 513763.

Julian McGoldrick is an Authorised Representative (No. 262098) of Knox Wealth Management Pty Ltd AFSL 513763.

Financial Services Guide - Disclaimer & Privacy Policy

^