Naz Randeria, managing director of Reliance Auditing Services, said there is a compliance requirement from the ATO that auditors ask for, and have, written lease agreements on file.
“Some within the SMSF sector may believe a written lease agreement to be an unnecessary document, especially if a verbal agreement has already been made, and because there is currently no legislative requirement from the trustee perspective for the written agreement to exist,” she said.
“For those trustees using the asset held by the fund – property that is being leased as business premises for example – a written lease agreement might also seem irrelevant, as a trustee is highly unlikely to terminate themselves.”
In addition to the compliance requirement for a written agreement, Randeria said there is another reason why such a document is important and why auditors should insist on its existence.
“A written agreement is also important to prove that an agreement has been made at arm’s length,” she said.
“Arm’s length is the requirement that any parties dealing with each other make decisions based on their self-interest rather than personal connection and are negotiating on an equal footing. It’s a core principle of SMSF transactions, and if not adhered to, it can result in potential contravention and/or penalty.”
Randeria said that a written lease agreement is an easy way to prove the agreement is developed appropriately, including outlining the rights and obligations of all parties, terms and conditions and relevant penalties and breach procedures where applicable.
“Further to this, a commercial property is exempt from in-house asset rules, provided the property is used wholly and exclusively for business purposes,” she said.
“A written lease agreement will clearly state the intended use of the property, whether that be for use as an office, medical centre or restaurant for example, and it is this detail that supports the ‘wholly and exclusively’ threshold, when there is a minor, insignificant or trifling non-business use of the property.”
Although it may be clear how a written lease agreement can be a useful tool in minimising non-compliance risk and ensuring the substance of transactions is correct, she added that some may argue that a terms sheet would be sufficient documentation to satisfy an auditor.
“I beg to differ. A terms sheet, while practical, simply isn’t comprehensive enough to satisfy the arm’s length terms, or the ‘wholly and exclusively’ threshold,” she said.
“Whether or not a written lease agreement is truly required from a trustee perspective is an interesting argument, and one that often sparks discussion at industry conferences and workshops, however when considering it from arm’s length perspective, it makes sense for trustees to ensure the document is drawn up, and for auditors to insist upon its existence.”
