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

TRANSITIONING INTO RETIREMENT: WHAT YOU SHOULD KNOW

Deciding on your retirement funding options comes down to personal choice. . If you’re close to...

Read full article

The Deadliest pandemics in History

Check out the Deadliest pandemics in...

Read full article

Middle-to-higher incomes boosting SMSF growth

The SMSF sector experienced healthy growth over the March quarter, with men and women on middle-to-higher...

Read full article

The superannuation changes from 1 July

The super changes on the way from the start of the 2024-25 financial year. . A number of...

Read full article

Investment and economic outlook, May 2024

Region-by-region economic outlook and latest forecasts for investment returns. . For the last...

Read full article

Downsizer contributions can be time critical

With the expansion of the downsizer contribution, the timing of when it is used can affect how to use...

Read full article

Deeming freeze a win for Age Pensioners

Why the decision to keep deeming rates on hold may be a window for interest rates.   . In...

Read full article

Plan now to take advantage of stage 3 tax cuts

With the stage three tax cuts set to be implemented in around six weeks, opportunities for tax-saving...

Read full article

Sofie Korac is an Authorised Representative (No. 400164) of Prudentia Financial Planning Pty Ltd, AFSL 544118 and a member of the Association of Financial Advisers.

Financial Advice Sydney and the North Shore Office based in Gordon NSW

Financial Services Guide - Disclaimer & Privacy Policy

^