Some banks lending to SMSF trustee(s) under instalment warrant borrowing arrangements are requiring a guarantee as part of the loan security. In a recent draft ruling, the Tax Commissioner has suggested that any payment under those guarantees will be taxable as a 'contribution' to the SMSF.
Certain strategies can help reduce the amount of any tax payable if the borrower defaults and the guarantee is enforced.Emily Millane
The law about SMSF Borrowing has changed since this article was written. The article on this page has not been updated. You can link to the changes from the short note at the top of this page.
In September 2007, the superannuation law was amended to allow SMSF trustee(s) to make certain investments in their SMSFs using borrowed money. The relevant borrowing arrangements are known as 'instalment warrant arrangements'. You can read recent ClearLaw articles on SMSFs and instalment warrant arrangements, including an interactive graphic overview about how instalment warrants work, here
The article below discusses the ATO's view that tax may be payable on any payment made under a guarantee provided to secure an instalment warrant loan.
Guarantees are an issue for SMSF borrowing because the law requires that the loan be a 'limited recourse loan' — that is, the lender's right to recover money owing under the loan must be limited. Specifically, the law limits the lender's right as follows:
the rights of the lender against the regulated superannuation fund trustee for default on the borrowing, or on the sum of the borrowing and charges related to the borrowing, are limited to rights relating to the original asset or the replacement.1
As the lender's rights 'against' the SMSF trustee(s) are limited to the asset purchased with the loan money, any guarantee the lender requires must be provided by someone other than the SMSF trustee(s).
Some institutions lending to SMSF trustee(s) under instalment warrant arrangements are requiring a guarantee for the repayment of the borrowed amount be provided. To comply with the law (above), the guarantee is provided by someone other than the SMSF's trustee(s).
In this situation, if the SMSF trustee(s) default on the loan repayments, then the lender can claim the amount of the default under the guarantee.
In a recent draft ruling, the Commissioner suggests that in certain circumstances a guarantee under an instalment warrant arrangement could be a 'contribution' to the superannuation fund in which case it would be taxable.
The draft ruling TR 2009/D3 is available here.
The draft ruling explains the Commissioner's views of the meaning of the word 'contribution' as it is used in relation to superannuation funds, approved deposit funds or retirement savings accounts. (By the way, although the word 'Contribution' is not defined in either the Income Tax Assessment Act 1997 (ITAA97), or the SISA, there is a limited definition in regulation 1.03 of the Superannuation Industry (Supervision) Regulations 1994 (SISR).)
The Commissioner's view is that an amount will be a 'contribution' to a superannuation fund if it increases the capital or property of that fund that is available to derive real benefits on behalf of members. In the ruling, the Commissioner states that a contribution can be:
If an SMSF which does not have a sufficient funds to meet its loan repayments defaults on a payment to a lender, then the lender may go beyond the assets of the fund and call on the guarantor to pay the outstanding amount. In these circumstances, the guarantor's payment is taken to have increased the capital of the fund. Therefore, the guarantor's payment is a contribution.
The rate of tax assessable on a contribution to an SMSF depends on:
For the 2009-2010 tax year, the contributions caps and tax rates are as shown in the table:
|Total amount of contribution||Tax rate|
|Concessional contributions||Up to $25,000||15%|
|Non-concessional contributions||$25,001 to $150,000||31.5%|
|Excess non-concessional contributions||More than $150,000||46.5%|
No, a guarantor cannot take a right of indemnity from the fund because if it does so, then the guarantor's rights extend beyond the asset purchased under the instalment warrant arrangement — which would breach the 'limited recourse' requirement of the law.
SMSF trustee(s) can help reduce the risk as follows:
Comment on the draft ruling was due to the Commissioner by 17 July 2009. The ruling will remain in draft form until the Commissioner considers public comment and issues a final ruling.
For questions or more information about the above article, please call Maddocks in Melbourne (03 9288 0555) and ask for a member of the Maddocks Tax and Revenue Team or Superannuation Team.
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Kate is a lawyer in Maddocks General Commercial Team. Kate joined the firm in 2010 as a paralegal and was admitted to practice in December 2012.
Kate has been involved in acting for a range of commercial, government and professional industry clients.
Her areas of expertise include:
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For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of their team.