To attract concessional tax treatment, contributions to an SMSF in each year of income must be below a certain amount — known as a cap. If you exceed the concessional contributions caps, then you are taxed on the amount over the cap. For a discussion on concessional and non-concessional contributions to SMSFs — including a summary of the current rates — see our earlier ClearLaw article 'Understanding - contributions, contributions caps and reserves' here.
A contribution is made to an SMSF when:
Providing superannuation benefits must be the person's sole purpose for contributing to the SMSF. However, they can take into account the incidental consequences of making the contribution — for example, obtaining a tax deduction is one acceptable, incidental consequence.
A person's purpose will be viewed objectively, and will be determined by reference to:
For example, a person who makes a contribution will not have a purpose of benefiting an SMSF member if their contribution does not depend on the fact that the other party is an SMSF trustee. Nor will they have the required purpose of making a contribution if they are simply fulfilling the terms of a legitimate contract or arrangement.
The most common way an SMSF's capital is increased is by a person transferring funds to the SMSF trustee. Generally, the contribution will be made when the trustee receives the funds.
Transferring funds to an SMSF trustee is a contribution even if the transfer is made to reimburse the trustee for a liability incurred while acting as trustee. By satisfying this liability, the contributing person indirectly increases the SMSF's capital. If the person's purpose in reimbursing the trustee for the liability is to increase the benefits members ultimately receive from the SMSF, then they are making a contribution within the sole purpose test set out above.
Here are the common ways that the Commissioner of Taxation (Commissioner) considers that a contribution to an SMSF will be made, and when:
|No.||If the funds are transferred by ...||A contribution is made when ...|
|1||Making a cash payment (either in Australian or foreign currency) to the trustee||The cash is received by the trustee.|
|2||An electronic transfer of funds to the trustee||The funds are credited to the trustee's account.|
|3||Giving the trustee a money order or bank cheque on which payment is made||The money order or bank cheque is received by the trustee, unless the order or cheque is dishonoured.|
|4||Giving the trustee a personal cheque (other than one that is post-dated) that is presented and honoured with cash or its electronic equivalent||The personal cheque is received by the trustee, so long as the cheque is promptly presented and is honoured.|
|5||Giving the trustee a personal cheque that is post-dated and that is presented and honoured with cash or its electronic equivalent||The cheque is able to be presented for the payment (that is, on the date on the cheque), so long as the cheque is promptly presented and is honoured.|
|6||A related party (as maker) issuing a promissory note, payable on demand at face value, to the trustee and the note is paid with cash or its electronic equivalent||The promissory note is received, so long as payment is demanded promptly and the note is honoured.|
|7||A related party (as maker) issuing a promissory note, payable on a future date at face value, to the trustee and the note is paid with cash or its electronic equivalent||Payment is able to be demanded or required to be made, so long as the demand (if required) is promptly made and the note is honoured.|
If you make a contribution to an SMSF, then you can claim a deduction for a contribution you make to that SMSF if:
If you are in 'employment' in the income year, then you must meet an earnings test for a contribution you make to your SMSF to be deductible. Broadly speaking, you are engaged in 'employment' activity if, in an income year, you are engaged in activity which generates income.
An individual taxpayer's personal superannuation contributions are deductible if the contributions are made to a complying SMSF for the purpose of providing superannuation benefits for the taxpayer (that is, themselves).
When you are engaged in employment, you (or your agent) can only claim a deduction if the sum of:
that is attributable to your 'employment' activities, is less than 10% of:
This condition is not relevant if you are wholly self-employed.
Remember in all these cases that the contribution still needs to benefit the SMSF's member(s).
The Ruling also explains key aspects of the rules set out in Division 290 of the ITAA97.
You can read other articles concerning superannuation and SMSFs here.
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.
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Paul is a Senior Associate in the Maddocks Commercial team with particular expertise in commercial agreements for the supply of goods and/or services, the Personal Property Securities Act 2009, the National Consumer Credit Protection Act 2009 and the National Credit Code and the Australian Consumer Law.
Paul's key areas of practice include:
Before joining Maddocks, Paul was employed for 13 years with the Victorian Department of Justice, principally as a Deputy Registrar in the Victorian Magistrate's Court, but also as a legislation, policy and project officer for the Department.
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For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of their team.