The ATO and what’s happening with SMSFs

The ATO and what’s happening with SMSFs

Gavin: In a recent speech, Kasey MacFarlane, an Assistant Commissioner in the SMSF area of the ATO, talked about the ATO’s perspective on what’s ahead for SMSFs.

Kasey said that she was going to highlight some of the income tax and regulatory issues that the ATO is seeing in relation to SMSFs in pension phase, and would also talk about some of the ATO’s other areas of focus for the SMSFs in the coming 12 months.

The following are excerpts from her comprehensive speech.

Regulatory Issues

The SMSF independent audit

One risk we have been considering is the increasing promotion of ‘low-cost audits’ – and the possibility that these equate to low quality audits.

For SMSFs with very simple affairs, such as just cash and managed funds – these costs might be decreasing in the market, especially with advances in software and automation for both administrators and auditors themselves.

That said, we still consider low cost as a potential indicator of lack of quality and will review SMSF auditors whenever necessary in this regard.

Some areas the ATO will focus on

Areas on which we’ll focus in the coming year include:

  • dividend stripping arrangements of a kind or similar to those outlined in our recently issued taxpayer alert TA 2015/1 (about dividend stripping arrangements involving the transfer of private company shares to an SMSF);
  • inexplicable, significant and out-of-pattern changes in the value of an SMSF’s assets and/or an SMSF’s income; and
  • related-party investments and/or transactions entered into on non-commercial terms.

Possible breaches of the sole purpose test

Through our monitoring of the SMSF sector to ensure that the sole purpose of funds is to meet members’ retirement objectives (and to provide benefits on or after a member’s death), we’ve noticed some activities that raise possible cause for concern.

There include:

  • the marketing and selling of investment products visa ‘cold calls’, such as real property investments, where the primary focus is on enticing people to invest and then having them establish an SMSF to invest in the product;
  • limited recourse borrowing arrangement(LRBA) loans that are not structured correctly, including incorrect registration of the ownership of property acquired under the LRBA being used as security for the loan; and
  • the promotion of arrangements that seek to gain a present-day benefit for the member, for example housing benefits, cosmetic surgery, holidays etc.

SMSFs and pensions

Setting up and starting a pensions

In the pension establishment phase, a fundamental but critical question that should not be overlooked is the question of whether or not the member has reached preservation age.

From 1 July 2015, the preservation age has effectively increased from 55 to 56. In other words, from 1 July 2015 anyone who hasn’t turned 55 will have to wait at least one more year before they can access their super.

It’s also necessary to consider whether or not there are any cashing restrictions applicable to the condition of release that the particular member has satisfied.

For example, a member who is 56 can access their super even if they’re still working but they can only do so by  way of a transition to retirement income stream (TRIS).

Is the required type of pension allowed by the trust deed?

There are still some older deeds in existence which don’t provide for recent changes to legislation and sometimes even prohibit certain types of income streams.

A particular example of this is transition to retirement income streams.

If an SMSF pays a pension contrary to the terms of a deed, a question may arise about whether or not a complying pension has commenced, and may also mean that funds have been inappropriately released to the member.

What is the market value of the assets that will support the pension?

Before a pension is started, trustees need to determine the market value of the assets that will support the pension.

Getting this right is central to the calculation of the annual minimum drawdown required from an account-based pension.

Getting this wrong, and thus miscalculating the annual minimum drawdown, may mean the SMSF can’t report exempt current pension income (ECPI) and is not entitled to associated tax exemptions.

Is there further capital to be added to support the pension?

Capital can’t be added to a pension once it starts. Therefore, before beginning a pension it’s important there are no pending rollovers yet to be received by the SMSF that are intended to support the new pension.

Contributions or rollovers, including internal rollovers, added to a pension after it’s started will mean that the pension is taken to have ceased and a new pension begun.

The alternative, of course, is to use the additional capital to create a separate pension interest for the member and start a new pension.

Meeting the annual minimum pension payment requirements

One of the most common reasons for an SMSF in pension phase not being entitled to applicable income tax exemptions under the ECPI provisions is because the trustee fails to pay the required annual minimum pension amount to a member.

As the regulator, we find that SMSFs that invest heavily in real property struggle the most with the ongoing liquidity requirements that come with funding a series of pension payments.

For example, we see SMSFs paying pensions where net rental income is insufficient and there are no other liquid assets or contributions being made to the SMSF.

Such a situation is often exacerbated where the main asset is business real property which is leased back to a related party.

We’re now also starting to see these liquidity problems associated with real property exacerbated for SMSFs in pension phase where the asset has been acquired under a limited recourse borrowing arrangement (LRBA).

We’re finding that as income of the SMSF is diverted to meeting the loan obligations of the fund there can be insufficient funds remaining to make the required pension payments.

There’s an added level of complexity to LRBAs involving related parties where we see trustees fall foul of the arm’s-length rules in an effort to try to overcome their liquidity issues.

In-specie asset transfer and partial commutation of pensions

An in-specie asset transfer from the fund is not the answer to liquidity concerns and associated difficulty with meeting the minimum pension payment requirements. Ordinarily an SMSF can pay a lump sum benefit in-specie but it cannot pay a pension in-specie.

The only circumstance when a pension payment can be a made in-specie is as a result of partial commutation of the pension. In the case of a partial commutation, the pension does not cease and the in-specie transfer counts towards the satisfaction of the annual minimum pension payment requirements.

When is a pension payment made?

To ensure that minimum pension payment requirements are met, relevant pension payments must actually have been ‘made’.

The ATO’s view is that the member must actually have received an amount and their benefits in the SMSF reduced accordingly before it can be said a pension payment has been made.

A journal entry on its own is not enough to satisfy the requirement that the relevant pension payment has been ‘made’.

Similarly a cheque written before the end of the income year but not presented until later when sufficient funds are available will not demonstrate a payment has been made.

Application of the Commissioner’s general powers of administration

Administratively, the Commissioner does exercise his general powers of administration (GPA) to treat a catch-up pension payment as having been made in the relevant income year, in limited cases.

This means the pension will be taken not to have ceased and the fund can continue to report ECPI even though the minimum payment requirements have no been satisfied.

In cases where SMSFs don’t meet the criteria enabling them to self-assess an entitlement to this administrative concession, they must apply to the ATO for exercise of the GPA.

In these cases, the Commissioner may exercise his powers to allow a fund to continue to report ECPI even though the minimum pension amount is not paid because either:

  • an honest mistake made by the trstee resulting in a small underpayment of the minimum payment amount; or
  • in all other circumstances , the trustee is able to demonstrate matters outside of their control.

In regard to these cases, I would like to focus on how, in piratical terms, the Commissioner applies the ‘small underpayment resulting from an honest mistake’ criterion.

In most cases, we would expect that a small underpayment would be 1/12th or less than the minimum annual payment.

I would like to clarify that the Commissioner will consider the specific facts of each individual matter and in some cases a small underpayment that is due to an honest mistake and a bit higher than 1/12th of the minimum annual payment, or that is a small amount in absolute dollar terms, may satisfy the criteria for exercise of the GPA.

For example, where the underpayment was $3,000 and the minimum annual payment was $15,000, even though the underpayment is 1/5th of the minimum, the amount of $3,000 could still be considered a small underpayment.

Calculating exempt income

Segregated and unsegregated assets

The requirements, under the relevant income tax provisions, that must be satisfied when calculating a fund’s exempt income under the ECPI provisions depend on whether the trustee chooses to segregate some or all of the assets supporting a pension.

If a trustee pays an income stream and chooses not to segregate the fund’s assets, then they’re choosing to use the unsegregated method to calculate the fund’s exempt income; under that method an actuarial certificate is required and must be obtained before the fund’s annual return is lodged.

Where an actuarial certificate is not obtained, the trustee won’t be able to report an amount of exempt income on the fund’s annual return.

In most cases, where the trustees segregate the assets supporting an account-based pension, there’s no need to get an actuarial certificate.

However, we’eve received a number of enquiries recently about whether an actuarial certificate is required in cases where a pension starts part way through an income year when the segregated method is applied.

Our initial response has been to say that an actuarial certificate is required in those circumstances.

However, we expect to provide some clearer guidance on this point in the near future.

Can assets be partially segregated?

In wrapping up on segregation I also want to mention TD 2014/7 which is about the circumstances when a bank account of a complying super fund is segregated current pension asset.

Since issuing the determination we’ve received a steady flow of questions about the partial segregation of other asset types.

Our view is that it’s not possible to segregate part of an asset. We consider this a common-sense approach really.

If you can’t separate an asset (for example a holding of real property) how can you demonstrate that the asset was separate and held solely to support pension liabilities?

This, however, can be contrasted with a parcel of shares, with each share constituting an asset in its own right.

Non-arm’s length income (NALI) and calculation of exempt income

Regardless of the method used by a trustee to calculate exempt income, it’s important to remember that non-arm’s length income (NALI) is always excluded from the calculation – which brings me to some of the NALI arrangements we’re concerned about.

I’ll start with non-commercial LRBAs. Many of you will be aware that late last year we released ATO ID 2014/39 and ATO ID 2014/40 which set out the ATO view that the non-arm’s length provision applies to the non-commercial LRBAs involving related parties in those cases.

As we’ve received a constant stream of queries since we released these ATOIDs, I’d like to reiterate that they shouldn’t be seen as concluding that all related-party LRBAs give rise to NALI.

Our position remains unchanged in that we’re liekly to scrutinise related-party LRBAs where the terms of the loan, taken together, and the ongoing operation of the loan, aren’t consistent with a geuine arm’s-length arrangement (i.e. the type of arrangement you’d expect to get dealing with a third party such as a bank).

This income could not be included in the SMSF’s exempt income, so I urge you all to review any arrangements which may not be on commercial terms.

We’re keen to work with trustees who may be concerned about their particular arrangements, to resolve any issues. Depending upon the facts and circumstances of the case, this may involve refinancing the arrangement on a commercial arm’s-length basis.

Income tax deductions – expenses incurred in pension phase

As a general rule, a fund can’t claim a deduction for expenditure incurred in gaining or producing exempt income, unless a specific deduction provision applies.

Therefore, where an expense is deductible under the general provisions and the fund has both accumulation and pension members, the expense needs to be apportioned.

Certain deductions can be claimed in full, whether they provide exempt or assessable income.

For example, some common expenses which are 100% deductible, despite relating to ECPI, include tax-related expenses and the cost of obtaining an actuarial certificate with respect to the pension being paid, and the superannuation supervisory levy.

Tax losses

Funds in pension phases also need to be particularly careful when they calculate their carry-forward losses.

In many cases, a tax loss of a pension-phase fund can’t be applied against its assessable income in a future year.

If the fund’s taxable income is a net tax loss and it has ECPI, it must reduce its tax losses by its net ECPI before it can carry forward those losses to later income years.

If an SMSF has a carry-forward loss from a previous income year and it has ECPI, the carry-forward loss must be reduced by its net ECPI before it can be deducted from its assessable income.

Ceasing a pension

TR 2013/5 outlines the most common circumstances for a pension creasing so I won’t go into each of these specifically.

Instead I’d like to focus on what happens in the unexpected event of the pensioner’s death, as we’re now starting to see a whole new range of questions.

Some SMSF members don’t realise that it’s the trust deed of the fund that determines what will happen to their super benefits – death benefits are not automatically dealt with as part of a member’s estate. This is why a valid death benefit nomination may be useful.

If there’s no death nomination, the trustee of the fund can decide how the benefit will be paid.

Depending on the trust deed, the trustee may pay it to any dependant under the super law or to their Legal Personal Representative who will distribute their super in accordance with their Will.

In cases where an SMSF is paying a pension and the pensioner dies, if there is an automatic reversionary beneficiary in place, the pension doesn’t stop on the pensioner’s death.

It simply transfers to the nominated beneficiary and they continue to receive it on the same terms as the original pensioner.

The fund’s ability to claim ECPI generally continues, although there are a few noteworthy matters I’d like to raise at this point.

Firstly, is the nominated reversionary entitled to receive a death benefit pension under the terms of the SMSF’s deed and the law?

Our concern here is that not all SIS dependants can receive a death benefit pension under the law, irrespective of the terms of the deed. For example, SIS Regulations limit the ability for a death benefit to be paid to:

  • a spouse (including same sex and de-facto);
  • a child under 18;
  • a child who is disabled (with no age restrictions); or
  • a financial dependant child under 26 (nothing that the interest must be cashed before they reach 25)

Secondly, the trustees must make sure that in order to be able to report ECPI in the year of death, the annual minimum pension payment must still be made.

Although there is no requirement to adjust the minimum pension payment must still be made.

Although there is no requirement to adjust the minimum pension payment amount for the year of death, regardless of any difference in the minimum factors between the deceased pensioner and the reversionary beneficiary, there is still a need to make the full annual pension payment by 30 June.

It’s not until 1 July of the next financial year that the reversionary beneficiary’s relevant drawdown factor is required to work out the minimum pension calculation.

Thirdly, where the original pensioner was in receipt of a TRIS, it’s important for the trustees to recognise that the reversionary beneficiary’s benefit should be recorded as unrestricted non-preserved.

This is important if the reversionary beneficiary wishes to access any amounts as a lump sum in future.

What this also means is that the reversionary beneficiary will be in receipt of an ordinary account-based pension, without the limitations imposed by a transition-to-retirement pension, regardless of their age.

Where the deceased member’s benefit was not established with an auto-reversionary beneficiary, then at the time of death, the pension ceases.

The fund however is not required to make any outstanding pro-rata minimum pension payments in the year of death and will not be at risk of failing to make the required minimum pension payment.

If the deceased member’s benefits are subsequently used to start a new pension for a beneficiary, the =trustee is required to ensure a new minimum annual pension amount is calculated and paid in the relevant year.

The fund can also continue to claim ECPI in the period from when the member died until a super death benefit is paid, regardless of whether it’s paid as a death-benefit pension or as a lump-sum death benefit.

The pension exemption can continue until the death benefit has been paid, provided this is done as soon as practicable. We’re often asked what does ‘as soon as practicable’ mean; the ATO view is that this normally would not exceed six months from the date of death.

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