Powered by MOMENTUM MEDIA
subscribe to our newsletter

Potential breaches flagged with retirement home purchases

Potential breaches flagged with retirement home purchases
Miranda Brownlee
06 October 2020 — 1 minute read

While it may seem advantageous to purchase a retirement property through an SMSF, SMSF clients need to be very careful these types of transactions don’t breach the sole purpose test, warns a law firm.

In an online article, Townsends Business & Corporate Lawyers solicitor Elizabeth Wang said some SMSF trustees are attracted to the idea of acquiring a property through their SMSF and leasing it to an unrelated third party at market value until they reach their preservation age and retire as a condition of release.

Ms Wang explained that SMSF Ruling 2008/2 provides that an SMSF may only be maintained for the sole purpose of providing retirement benefits to the members, or to their dependants if a member dies before retirement.

Advertisement
Advertisement

“It also provides that in determining whether an SMSF has satisfied the ‘sole purpose’ test, one must consider all the facts and circumstances surrounding the trustee’s behaviour in relation to the acquisition of the property,” she stressed.

“For example, if the trustee invests in a property where there is significant likelihood that the investment in the property will not increase any return for the SMSF, and the trustee simply purchased the property because the members always dreamed of retiring to a lovely coastal home, then the ATO may take a sceptical view and rule the transaction a breach of the sole purpose test.”

On the other hand, Ms Wang clarified that if the trustee has supporting documentation such as valuation reports which show that the investment property is likely to provide an increase in return for the SMSF, then the sole purpose test may be satisfied, notwithstanding the ancillary purpose.

Ms Wang reminded SMSF trustees that an SMSF will fail to meet the sole purpose test if the SMSF provides a pre-retirement benefit to a member of the SMSF.

For example, she explained that if trustees decide to reside in the property once they have met a condition of release, they should transfer the property from the SMSF to the members in their personal capacity, she explained.

This will help avoid potentially breaching the sole purposes test, she said, in the event that the trustees residing in the property is treated a present-day benefit or personal use of an SMSF event.

She also noted that the transfer of the property from the SMSF to the members in their personal capacity will result in transfer duty or nominal duty being paid, with the exception of Victoria, the ACT and South Australia where transfer duty on this type of transaction is exempt.

“The trustee must still ensure that the in-specie transfer is permitted under the trust deed. If the trust deed is silent on any in-specie transfer, then the trust deed will need to be updated to allow the in-specie transfer to occur,” she added.

Miranda Brownlee

Miranda Brownlee

 

Miranda Brownlee is the deputy editor of SMSF Adviser, which is the leading source of news, strategy and educational content for professionals working in the SMSF sector.

Since joining the team in 2014, Miranda has been responsible for breaking some of the biggest superannuation stories in Australia, and has reported extensively on technical strategy and legislative updates. Miranda has also directed SMSF Adviser's print publication for several years. 

Miranda also has broad business and financial services reporting experience, having written for titles including Investor Daily, ifa and Accountants Daily.

You can email Miranda on: This email address is being protected from spambots. You need JavaScript enabled to view it.

Potential breaches flagged with retirement home purchases
suburban houses smsf
smsfadviser logo
join the discussion

Latest poll

Do your clients plan to add additional members to their SMSF if the new six member limit is passed as law?

SUBSCRIBE TO THE
SMSF ADVISER BULLETIN

Get the latest news and opinions delivered to your inbox each morning

Website Notifications

Get notifications in real-time for staying up to date with content that matters to you.