on 09-10-2016 06:22 PM
Is that loan in your SMSF’s best interest?
The Tax Office issued an information sheet on their website in 2014 warning trustees about the perils of lending an SMSF’s funds to the wrong person. This includes your own business, someone who advises you or a family member or friend.
An all too common occurrence is the practice adopted by some people of withdrawing funds from their SMSF to “temporarily” help keep their business afloat when cash flow is tight.
Has your SMSF loaned money? If so, you need to make sure the loan terms comply with the law and are in the best interests of your funds sole purpose test which is to provide for your retirement.
The boys and girls at the ATO are rightly concerned some trustees are lending money from their fund to people who provide advice or assist in the running of the fund. This may not be in the best interest of your SMSF, and may place your retirement savings at risk. If someone is recommending you set up a SMSF and then to lend them or a related party money for a development, you have to ask yourself in who’s best interest are they working? Might be time to scrutinise the minute details of this “too good to be true one time only opportunity”.
So when would a loan agreement not be seen to be in the best interest of your SMSF ? Basically, when you have given discount loan rates or favourable terms – this could have serious consequences. Here is one example they give:
when you have given discount loan rates or favourable terms – this could have serious consequences. In addition to putting your member’s benefits at risk, your SMSF could be found to be non-complying and would, therefore, not qualify for concessional tax rates.
They advise that before lending any money, you should consider your fund’s investment strategy and determine whether the investment is appropriate and, in particular, whether lending money to people providing you with services or advice is in the best long-term interests of your SMSF.
If you are not sure about making these types of investments choices, they recommend that you seek advice before entering into such arrangements.
If you still decide to go ahead and lend money from your SMSF, the ATO advise that “you should:
- write an appropriate loan agreement and have it signed by all the parties involved
- ensure the loan agreement specifies all the terms of the loan, such as:
- what the security for the loa
- what is the repayment period
- when repayments will be paid
- the amount of the repayments
- the interest rate
- ensure the interest and repayments are received by the fund according to the loan agreement
- take appropriate action to protect the fund’s investment if the loan agreement is not followed
- ensure the loan is sensible and does not put the members’ benefits at risk
ensure that the conditions of the loan agreement do not provide the borrower with favourable terms.
Remember that you are the one ultimately responsible for running your SMSF, and you must make sure you understand your duties, responsibilities and obligations.”
With regards to taking funds out to help your business, you need to firstly know that should the business go under that your Superannuation is in most cases protected in bankruptcy from creditors so you should be careful about accessing this protected asset.
Regardless of how much you trust a person even if they are your accountant, lawyer, financial planner, mortgage broker or best mate, you need to get independent third-party advice. Don’t be embarrassed about not completely trusting the promoters scheme as it is often too late later to get your funds back and hindsight is a cruel tormentor when facing loved ones having lost your retirement nest egg.