SPAA CEO Andrea Slattery said that the National Australia Bank (NAB) is the first lender to sign up for both guidelines on lending and advice, while SPAA is continuing to work with other lenders in this space. Mrs Slattery said that SPAA has been "very conscious" of the LRBA concerns expressed in the interim report by the Financial Services Inquiry and the fact that a "tiny rogue minority" has been spruiking this borrowing facility. As such, SPAA believes that there is an urgent need to establish a set of industry guidelines that will ensure that a responsible approach is taken to all LRBAs. The Government and regulators can have a high degree of confidence that LRBAs are being used appropriately if best practice guidelines are in place, Mrs Slattery said.
SPAA's guidelines require lenders to make disclosures to SMSF trustees that are considering an LRBA, including a recommendation that the SMSF trustee seek specialist SMSF, financial and legal advice. The disclosures by a lender should also acknowledge that the ultimate responsibility remains with the SMSF trustee to determine the suitability of an LRBA within their SMSF's investment strategy and SIS rules, given the limited role and responsibilities of lenders in this process. That is, an SMSF trustee cannot rely on the lender to ensure that the borrowing arrangement and holding trust structure is SIS compliant or tax-effective over the life of the investment.
The guidelines also establish banking industry standards that can complement existing banking practices for individual credit policy and practices regarding LRBAs to promote responsible lending to SMSFs. Lenders should also provide SMSF trustees with factual information on what an LRBA involves, including:
Being a party to the lender guidelines does not impose any obligation on a lender in relation to SPAA's advice guidelines (see below). For example, a lender is not obliged to require an SMSF to obtain advice from an advisor who is a party to SPAA's advice guidelines (or to obtain any advice of the nature described in the advice guidelines), before entering into an LRBA with an SMSF.
SPAA's advice guidelines seek to ensure that when an SMSF trustee seeks appropriate advice regarding the suitability of an LRBA for their particular circumstances, they receive advice from a competent and appropriately licensed advisor that allows them to make the most appropriate decision for their SMSF. According to SPAA, obtaining such advice should help to ensure LRBAs are only being invested in by SMSF trustees after understanding the nature of the investment strategy and the risks associated with it.
The guidelines note that consideration should be given to whether an LRBA is an appropriate strategy for the SMSF in light of the members' needs and the fund's circumstances. For example, the fund's balance, diversification, cash flow (for example, expected contributions and other fund resources to repay debt) and insurance needs. The guidelines also note that SMSF trustees should be made aware of their ultimate responsibility in relation to the LRBA as distinct from the responsibilities of the lender and/or any advisor.
Numerous items are listed in SPAA's guidelines that advisors should provide information on and discuss with SMSF trustees. For example:
Where appropriate, the guidelines suggest that an advisor may need to recommend that the client seek specialist taxation and legal advice on their LRBA structure.
The rules for LRBAs remain a complex and developing area of the law for superannuation funds, lenders and government regulators. In addition to satisfying the requirements of sections 67A and 67B of the SIS Act, it is crucial to ensure that the documentation surrounding an LRBA will not result in any adverse CGT, stamp duty or GST liabilities over the life of the investment. For example, the loan agreement, holding trust structure, contract for the sale of land, declaration of trust, mortgage, transfer of property, lease arrangements.
Upfront planning is also required to structure the various transactions in terms of SIS Act compliance beyond section 67A, for example, the in-house asset rules, sole purpose test, separation of fund assets, investment strategy, SMSF trust deed powers. Similar to the stamp duty issues, the documentation needs to be structured so that it will not result in any unintended CGT and GST consequences over the life of the investment.
A lender may also have its own specific requirements that are conditional for the loan approval. However, the lender is primarily concerned with protecting its own interests so the SMSF trustees must first ensure that the lender's requirements or preferences (for example, security) will not have any adverse implications in terms of SIS compliance or tax consequences.
Thomson Reuters Australian Superannuation Handbook 2014-15 (current to 1 July 2014) incorporates recent developments for LRBAs on these issues, including:
Source:This article was first published in Thomson Reuters' Weekly Tax Bulletin. To subscribe to Weekly Tax Bulletin, or for more information, please:
You can read earlier articles on a wide range of SMSF topics.
Julian Smith is a partner in the Maddocks Commercial team.
Julian advises extensively in the following areas:
Julian advises clients ranging from public companies servicing the wholesale financial services market to high net worth individuals and their advisers.
Julian has been with Maddocks since undertaking articles in 2001.
The legal information and commentary on this site is general only. Documents ordered through Cleardocs affect the user's legal rights and liabilities. To assess their suitability for the user, legal accounting and financial advice must be obtained.
For more information, contact Maddocks on (03) 9258 3555 and ask to speak to a member of their team.