In our June 2011 ClearLaw article 'Pensions and limited recourse SMSF borrowing: are they compatible?', we considered a possible tension between:
Now we have received non-binding advice from the Australian Taxation Office confirming that the prohibition is intended only to stop a member from using their pension entitlement as security for borrowing. That said, trustees should remain aware of the prohibition as a SMSF engaged in both paying a pension and a limited recourse borrowing arrangement needs to carefully manage those arrangements to ensure the SMSF complies with the law.Alastair Keith
When an SMSF member chooses to receive his or her benefit as a pension, the SMSF trustee(s):
It is these assets that must not be used as security for any limited recourse borrowing.
Using the capital value of an SMSF pension and the income from it as security for a borrowing is prohibited by the regulations. For the member, this capital value and income are an asset. In the ATO's view, it is for this reason that the prohibition against using the capital value of the pension and the income from it as security is intended to stop SMSF members from using their pension entitlement as security for borrowing.
From the perspective of the SMSF trustee(s), the capital value of the pension and the income from it are liabilities of the SMSF. The SMSF requires assets that are not used as security for limited recourse borrowing arrangements to discharge these liabilities. As a general rule, the trustee(s) are prohibited from allowing charges in relation to the assets of the SMSF, unless otherwise authorised by the law. One such authorisation is in the case of limited recourse borrowing arrangements.
As part of those borrowing arrangements, SMSF trustee(s) are permitted to borrow money to acquire an asset as long that the asset is held on trust by a custodian so that the SMSF trustee(s) acquire a beneficial interest and have the right to acquire legal ownership by repaying the borrowing. The lender's rights are limited to the 'acquirable asset'. This asset must not be an asset that is allocated to the pension account.
SMSF trustee(s) should remain aware of the prohibition against using the capital value of the pension and the income from it as security for any limited recourse borrowing. As discussed in our previous article, if the trustee(s)propose to enter into a limited recourse borrowing arrangement, then they should ensure that any security provided is not over an asset (or liability, from their perspective) that comprises part of the 'capital value' of the pension being paid to any members of the SMSF.
Unlike an ATO ruling, the advice provided by the ATO in this respect is only general in nature and is not binding on the Commissioner of Taxation. Therefore, while the advice indicates the ATO's likely approach, the ATO is not bound by the advice. Furthermore, the advice given is only general and may not be relevant to every scenario. If you are concerned about the potential risks of a trustee administering both a pension and a limited recourse borrowing arrangement for the acquisition of an asset, then you should obtain legal advice.
For questions or more information about the above article, please call Maddocks in Melbourne (03 9288 0555) and ask for a member of the Superannuation Team.
You can read other articles concerning superannuation and SMSFs here.
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 1.06(2)(h) of the Superannuation Industry (Supervision) Regulations 1994 (SISR)
 Regulation 13.13 of the SISR
 Regulation 13.15 of the SISR
 Section 67A of the Superannuation Industry (Supervision) Act 1996
Melissa is a lawyer in the Maddocks Commercial team.
Melissa has been involved in acting for a range of commercial and professional industry clients.
Melissa advises extensively in the following areas:
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