Contributed by Daniel Butler, Director and Rebecca James, Special Counsel, DBA Lawyers
Overview of TD 2016/16
The ATO recently issued Taxation Determination TD 2016/16 which confirms its view that where a self managed superannuation fund (SMSF) trustee enters into a limited recourse borrowing arrangement (LRBA) on non-arm’s length terms, it is necessary to consider whether the SMSF has derived more ordinary or statutory income under the scheme than it might have been expected to derive had the parties been dealing with each other at arm’s length in relation to the scheme. Non-arm’s length income (NALI) will only arise in those cases where the answer to this question is affirmative.
In answering the question, it is necessary to identify both the steps and the parties in relation to the scheme. This also requires an analysis of what the arm’s length borrowing terms would have been (“hypothetical borrowing arrangement”).
It is then necessary to analyse whether it is reasonable to conclude that the SMSF trustee could have and would have entered into the hypothetical borrowing arrangement.
The ATO view is that where it is reasonable to conclude that the SMSF trustee could not or would not have entered into the hypothetical borrowing arrangement, the SMSF will have derived more ordinary or statutory income under the scheme, and this income will be treated as NALI.
Accordingly, where s 295-550(1) of the Income Tax Assessment Act 1997 (ITAA 1997) applies, the total amount received by an SMSF trustee from the arrangement, after any applicable deductions to the extent they are attributable to that income, is taxed at the highest marginal tax rate plus the temporary budget repair levy (currently 47%), instead of the concessional tax rate that typically applies to SMSFs. This rate applies even if the SMSF is in pension phase (subject to the proposed $1.6m balance cap).
TD 2016/16 states at :
“Where the SMSF can objectively establish with evidence that it could have and would have entered into the hypothetical borrowing arrangement, a comparison can then be made of the SMSF’s ordinary or statutory income from the scheme (where the parties have not been dealing with each other at arm’s length and have entered into an LRBA on terms which are not at arm’s length) and the income under the hypothetical borrowing arrangement.”
Has the SMSF trustee derived a greater return?
The example provided in TD 2016/16 represents an extreme loan arrangement that provides limited practical guidance for the vast majority of related party LRBAs that may be almost but not quite in line with the safe harbour provisions set out in Practical Compliance Guideline PCG 2016/5. The example in TD 2016/16 includes the following facts:
- the loan to value ratio (LVR) is 100%
- the interest rate is nil
- the loan term is 25 years, with no repayments required until the cessation of the loan term, and
- a mortgage is provided in respect of the property.
These facts are clearly not consistent with an arm’s length loan arrangement. The facts from this example are then compared with a hypothetical borrowing arrangement example (which reflects the ATO’s safe harbour guidelines for real estate in PCG 2016/5, ie 70% LVR, 15-year term, interest at 5.75% pa for the 2016 financial year, monthly repayments and security over the property).
Therefore, when determining what is an arm’s length hypothetical borrowing arrangement, the ATO is likely to refer to the safe harbour terms set out in PCG 2016/5 as a starting point (as per the example in TD 2016/16). Alternatively, an SMSF trustee can obtain and maintain written evidence that demonstrates that the LRBA terms are consistent with an arm’s length dealing in the same factual circumstances.
Is ATO imposing new investment standards?
In TD 2016/16, the ATO states that the rent of $1,000 per week derived from the property is not sufficient to make monthly principal and interest repayments at the rate determined under PCG 2016/5 of $5,800 per month. The ATO concludes that the SMSF trustee could not and would not have entered into the hypothetical borrowing arrangement for a number of reasons, including because once the weekly rental and any future capital gains are taken into account, the property would not be earnings accretive. Accretive commonly means growth or increase by gradual addition over time.
The ATO’s methodology, however, for determining that the property would not generate sufficient future earnings or capital gains is not outlined in TD 2016/16. The requirement that a property be earnings accretive from the outset of an LRBA requires further consideration and analysis. The determination of the future capital growth of a particular property would, for instance, involve an analysis of property prices in the area over the proposed ownership period and forward projections of capital appreciation and net income flows.
An SMSF trustee must formulate and implement an investment strategy under s 52B of the Superannuation Industry (Supervision) Act 1993 (Cth) (SISA) that considers the:
- risk and likely return from the SMSF’s investments having regard to its objectives
- diversification of the SMSF’s investments and the risks of inadequate diversification
- liquidity of the SMSF’s investments and cash flow requirements, and
- ability of the SMSF trustee to discharge any existing and prospective liabilities.
Further, the earnings and growth from the asset acquired using an LRBA may not necessarily be the main funding source to repay borrowings. Contributions, roll-overs and the admission of further members can also provide the necessary funding.
If an SMSF trustee has given due consideration to the investment strategy factors outlined above and has a plan to repay the borrowing on arm’s length terms (as well as meeting any other existing and prospective liabilities), the SMSF trustee is investing in a manner that is consistent with the SISA requirements.
Further, if the LRBA was on arm’s length terms and this could be clearly substantiated, the fact that a property was negatively geared would not, by itself, be sufficient to give rise to NALI. There is no basis under superannuation or tax law for the position that a borrowing must be repaid from income or gains derived from the asset acquired with that borrowing for the parties to be dealing on arm’s length terms; albeit this may in fact occur in many conservatively leveraged LRBAs.
Is the LRBA an optimal use of SMSF assets?
TD 2016/16 also states that the ATO will consider whether an LRBA is “an optimal use” of the SMSF’s assets. Again, this statement does not reflect the obligations placed on SMSF trustees under superannuation or tax law. An SMSF trustee is certainly required to invest in a prudent manner and in the best financial interests of members. Determining, however, what is an “optimal use” of the SMSF’s assets is a subjective exercise that is difficult to quantify or enforce. It goes beyond the duty to exercise the same degree of care, skill and diligence that an ordinary prudent person would exercise in dealing with the property of another for whom the person felt morally bound to provide under s 52B of the SISA.
While the legislation provides certain prohibitions or limitations on particular forms of investments, eg the 5% limit on in-house assets in Pt 8 of the SISA, the legislation does not seek to influence a trustee’s choice of investment.
If the ATO views SMSF trustee investment decisions through a prism that requires optimal positively geared investments that generate an accretive return from the date the particular asset is acquired, SMSF trustees will be held to a standard above that required by superannuation and trust law and will find it increasingly difficult to identify asset classes in which to invest, given the risk of a negative return inherent in all but the most conservative of investments.
Fortunately, the ATO’s view expressed in TD 2016/16 regarding optimal positively geared investments, appears to be limited to related party LRBAs at this time.
Substantiating an arm’s length dealing
Parties to an LRBA who are dealing on arm’s length terms can substantiate their position by retaining sufficient evidence to demonstrate that each aspect of the LRBA as a whole has been benchmarked to commercial terms in substantially the same circumstances.
In particular, an SMSF trustee must ensure that the interest rate, LVR, loan term and security provided as well as the other terms of the borrowing are consistent with an arm’s length dealing. In forming its view, an SMSF trustee must take into consideration all these factors to ensure it can support the position that the LRBA terms have been continually maintained on an arm’s length basis.
Importantly, a written loan agreement and related documents should be prepared and should reflect the arm’s length terms. The parties must also act in accordance with the terms of that agreement, eg ensure regular monthly repayments are being made (at least from 31 January 2017). SMSF trustees should also obtain quotes from banks, mortgage brokers and from other sources to support the arm’s length terms.
As a result of the latest ATO views expressed in TD 2016/16, SMSF trustees undertaking related party LRBAs should also seek to document cash flow projections in respect of any proposed acquisition that reflects a positive cash flow and capital appreciation wherever possible to minimise any NALI risk.
Other ATO materials
TD 2016/16 replaces the ATO view outlined in ATO ID 2015/27 and ID 2015/28, which have been withdrawn. PCG 2016/5 has also been revised following the release of TD 2016/16. Broadly, the key change is the ATO’s clarification in TD 2016/16 regarding the need to establish a hypothetical arm’s length borrowing arrangement in determining whether NALI applies. TD 2016/16 is a public ruling that can be relied on by taxpayers and is binding on the Commissioner.
SMSF trustees with related party LRBAs have until 31 January 2017 to ensure that each LRBA is either benchmarked to the LRBA guidelines provided by the ATO in PCG 2016/5 or arm’s length benchmark evidence has been obtained to support the terms of their arrangement. This benchmark evidence should demonstrate that the parties are dealing on arm’s length terms and preferably in the future it should include by cash flow projections.