Do you need to lodge a transfer balance account report?
Super | 07 2nd, 2020|

Self-managed super funds (SMSF) may be required to lodge a transfer balance account (TBA) report by 28 July 2020 in the case of a TBA event.

A TBA report will need to be lodged with the ATO in the event that both of the following apply:

  • A TBA event occurred in a member’s SMSF between 1 April and 30 June 2020,
  • Any member of the SMSF has a total super balance greater than $1 million.

SMSFs will also need to complete this report when a member needs to correct information about a TBA event that they have previously reported to the ATO or are responding to a commutation authority.

According to the ATO, an event is classified as a TBA event if they result in credit or debit in a member’s transfer balance account. Such events include:

  • Super income streams in existence just before 1 July 2017 that both continue to be paid on or after 1 July 2017, or were in retirement phase on or after 1 July 2017,
  • Super income streams that stop being in retirement phase,
  • Limited recourse borrowing arrangements (LRBA) payments entered into on or after 1 July 2017,
  • LRBA payments resulting in an increase in the value of the member’s superannuation interest supporting their retirement phase income stream,
  • Personal injury (structured settlement) contributions that occurred post 1 July 2017,
  • Voluntary member commutations.

There are a number of ways you can lodge your TBA report with the ATO:

  • Lodge online by completing an interactive online form in the Business Portal
  • Lodge online by completing an interactive online form with a tax agent and filing through online services
  • Lodge a paper report (you can report up to four events for the same member on a paper report)
  • Use bulk data exchange (BDE) to submit through file transfer facilities. You will generally need support from a software provider to meet BDE specifications.
Carrying on a business in an SMSF
Super | 06 25th, 2020|

Self-managed super funds can carry on a business providing the business is allowed under the trust deed and operated for the sole purpose of providing retirement benefits for fund members.

Carrying on a business through an SMSF does have restrictions that other businesses do not have, such as entering into credit arrangements or having overdrafts.

SMSF trustees that carry on a business through their fund must adhere to the sole purpose test. The ATO looks for cases where:

  • The trustee employs a family member.
  • The ‘business’ is an activity commonly carried out as a hobby or pastime.
  • The business carried on by the fund has links to associated trading entities.
  • There are indications the fund’s business assets are available for the private use and benefit of the trustee or related parties.

The same regulatory provisions still apply to funds that carry on a business, i.e, SMSF investments must be made on a commercial ‘arm’s length’ basis, business activities must be conducted in accordance with the SMSF’s investment strategy, collectables and personal use assets cannot be displayed at the business premises and so on.

The SMSF cannot be involved in the following business activities:

  • Selling an SMSF asset for less than its market value to a member or relative of a member.
  • Purchasing an asset for greater than its market value from a member or relative of a member.
  • Acquiring services in excess of what the SMSF requires from a member or relative of a member.
  • Paying an inflated price for services acquired from a member or relative of a member.
How to transfer a business property into your SMSF
Super | 06 18th, 2020|

Employers with a self-managed super fund (SMSF) looking to protect their business assets can consider transferring their business real property into their SMSF.

Transferring business property into your SMSF is useful to protect your assets in the event of your business failing or facing litigation. It is possible for SMSF members to transfer business real property (land and buildings used exclusively for the business) to their SMSF by using a combination of methods.

In-species transfer
An in-species transfer in the context of a business property refers to the ownership transfer of a property from one entity to another without the need to convert it into cash. During an in-species transfer, the value of the property is considered a contribution to your SMSF and is restricted by CGT regulations and contribution caps.

Cashing in your SMSF
You can use the cash available in your SMSF to buy your business property at market value as a normal cash purchase. The property must first be valued by an independent and qualified party before this is allowable. SMSFs that do not have enough sufficient capital to do this may consider using their non-concessional contributions cap to cover the outstanding balance.

Limited recourse borrowing arrangement (LRBA)
In the event that you do not have enough cash in your SMSF to outright buy your business property, you can apply for a loan using an LRBA. An LRBA can be obtained through a third-party lender, including your own business. You can borrow funds for your SMSF under an LRBA from your own business. However, before applying for an LRBA, consider its legal complexities and whether your SMSF will be able to maintain loan repayment fees on top of existing fees you may have, such as member pensions and accounting and auditor fees.

CGT retirement concession
The CGT retirement concession allows business owners exemption from CGT on business assets up to $500, 000 over a lifetime. If you are over 55, there are no associated conditions, however, if you are under 55, then you must place the money into a superannuation fund to receive the exemption.

This means that if you are under 55 and wishing to transfer a business real property into your SMSF, you can potentially do so without incurring any CGT liability (up to $500, 000).

Divorce and splitting your SMSF assets
Super | 06 11th, 2020|

Running an SMSF under regular circumstances comes with enough compliance obligations as it is. Adding divorce or separation into the equation can raise even more legal and tax issues that need to be addressed.

The breakdown of your relationship does not absolve you from your responsibilities as an SMSF trustee; you are still expected to continue acting in accordance with super laws and in the interests of all members. As a trustee, you must:

  • include another trustee in the decision-making process, and
  • acknowledge requests to redeem assets and rollover benefits to another super fund.

When it comes to dividing SMSF assets, separating couples can transfer assets, such as property, from one SMSF fund into another. During this process it is important to consider:

  • How they will decide to split their superannuation fund. They can choose to enter into a formal written agreement, seek consent orders, or if the separating couple cannot reach an agreement, they can seek a court order.
  • Whether they have the necessary documentation readily available, as it is essential in the event of an ATO audit. Due to there being beneficial tax consequences in splitting a superannuation fund, it is essential that the documentation, such as the notice for splitting the super, shows a genuine separation.
  • Where the new fund is to be a single member fund, it is advisable to incorporate a special purpose company to be the trustee. This avoids having a second person as a trustee.
SMSF property investment regulations to keep in mind
Super | 06 2nd, 2020|

Property is a common investment option for SMSFs, however, the ATO has a number of regulations SMSF owners need to be wary of. The ATO is particularly concerned with those using SMSF assets to invest in property in a way that is detrimental to retirement purposes.

To ensure you do not breach provisions of the Superannuation Industry (Supervision) Act 1993 (SISA), here is a breakdown of the ATO’s common regulatory concerns:

  • Whether arrangement amounts to your SMSF are being made to purposes outside of the sole purpose test (referred to as a collateral purpose).
  • Whether your SMSF meets operating standards such as record-keeping, ensuring assets are appropriately valued and recorded at market price, and keeping SMSF assets separate from members’ assets.
  • Whether the arrangement includes the SMSF acquiring assets from a related party.
  • If the arrangement features the SMSF borrowing money and meets borrowing provisions.
  • Whether the SMSF has contravened the in-house assets by exceeding the level of in-house assets allowed.
  • Cases of illegal early release of superannuation when SMSF arrangements do not meet relevant payment standards.

Also keep in mind that you cannot improve a property or change the nature of a property while there is a loan in place. While you can look to make additional contributions to your SMSF to speed up the loan repayment process, you will be precluded from making further contributions to your SMSF if any outstanding loans in your super balance exceed $1.6 million.

In the case that any of the ATO’s regulatory concerns apply to you and your SMSF’s involvement with property investment, confirm your situation and report your circumstances to the ATO. Additional regulatory matters regarding income tax such as non-arm’s length income (NALI) provisions as well as GST need to be reported as well.

Spouse contributions – when are you eligible for a tax offset?
Super | 05 28th, 2020|

Contributions made on behalf of your spouse to a complying superannuation fund or a retirement savings account (RSA) may be eligible for a tax offset.

The 2019/2020 tax rules allow you to claim an 18% tax offset on super contributions up to $3,000 on behalf of your spouse. While you are able to contribute more than $3,000, there will be no spouse contribution tax offset over this amount. The amount you can claim depends on your spouse’s annual income:

  • $540 for spouse income of $37,000.
  • $360 for spouse income of $38,000.
  • $180 for spouse income of $39,000.

The tax offset may be available for individuals who meet the following eligibility requirements:

  • Your spouse’s assessable income, fringe benefits amounts and employer superannuation contributions equate to under $40,000.
  • Contributions made on behalf of your spouse were not deductible to you.
  • You and your spouse were Australian residents at the time of contributions.
  • Your spouse did not have non-concessional contributions that equated to a higher amount than their non-concessional contributions cap, or they did not have a total superannuation balance of $1.6 million or more at 30 June 2018.
  • Your spouse is younger than their preservation age, or are not retired while being between 65 and their preservation age.

Under Australian superannuation law, your spouse can be either:

  • Your partner who you are married to and live with, or;
  • Your de facto partner, who you live with on a genuine domestic basis.

The spouse contributions tax offset can be claimed on your tax return.

Your current employer superannuation obligations
Super | 05 19th, 2020|

Paying your employees superannuation is an integral part of being an employer. Superannuation provides income for your workers in retirement and it is your legal obligation to make sure you are paying your eligible employees the right amount, on time, to the right place and also in the right way. The ATO has also introduced a few schemes to help employers meet their super obligations due to financial strain caused by COVID-19.

Your super obligations are summarized in the following:

  • Check the eligibility of all your employees (some contractors or freelancers may be entitled to superannuation payments).
  • Pay your eligible employees 9.5% of their ordinary time earnings.
  • Super payments must be made at a quarterly minimum (employers who do not pay their superannuation on time may need to pay a superannuation guarantee charge).
  • Pay super into your worker’s fund of choice.
  • Pay the SuperStream way (both payments and data are sent electronically in a standard format).
  • Streamline your payment process with Single Touch Payroll.
  • Keep evidence to show that you have met your super obligations as an employer.

While the usual obligations apply, the ATO has also introduced assistance schemes in response to COVID-19 for employers. The superannuation guarantee amnesty, in particular, will provide you with arrangements which can adjust your payment terms and amounts relative to your financial circumstances as well as extend your payment plan to beyond 7 September 2020, provided you apply to participate in the amnesty by that date.

Applying for superannuation guarantee amnesty also means having any refunds returned to you as quickly as possible and being notified of any eligible income tax deductions you can claim on your contributions to employee super funds. However, if you are unable to maintain super payments despite being granted SG amnesty, you will be disqualified from the program. This disqualification will only apply to any unpaid quarters and you will need to pay a $20 per employee component for re-application of any unpaid quarters.

For updates in the event of more changes to super obligations and requirements, visit the ATO Super website or APRA-regulated funds page for more information.

What happens if your SMSF is non compliant?
Super | 05 14th, 2020|

While there are benefits to running an SMSF, they do not come without their compliance responsibilities. This includes lodging your fund’s annual return on time, attending to reporting obligations, and having an investment strategy. SMSFs who do not meet their obligations are subject to penalties by the ATO through the following measures.

Education direction

An SMSF trustee who does not meet compliance requirements can be given a written direction to undertake a course of education that is designed to improve their ability to meet their obligations, reducing the risk of future non-compliance. The course may be completed online within a nominated timeframe. Failure to comply with an education direction can result in an administrative penalty of 10 units.

Administrative penalties

SMSF trustees are liable to pay administrative penalties if they contravene provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). This includes contraventions of borrowings, in-house assets, education direction, duty to notify of significant adverse events, and accounts and statements. The minimum penalty is $1,050 and the maximum penalty is $12,600.

Enforceable undertaking

SMSF trustees may be able to rectify non-compliance by providing a written commitment to an enforceable undertaking. The ATO may or may not accept the undertaking, which should include:

  • A commitment to ending the non-compliance behaviour.
  • What action will be taken as rectification.
  • The designated time period to rectify the contravention.
  • How and when the trustee will report the completion of rectification.
  • Strategies employed to prevent future contraventions.

Rectification direction

The ATO may decide to provide a trustee with written direction to rectify their contravention. The trustee will then be required to undertake specified action to rectify the non-compliance within a given timeframe. Rectification commonly involves employing managerial or administrative arrangements that will prevent similar contraventions in the future. Proof of compliance with the direction to rectify will be required. Failure to comply with the direction is an offence of strict liability, which can lead to disqualification or the removal of the fund’s complying status which may result in a significant tax penalty on the fund.

Disqualification

The ATO has the ability to disqualify individuals from acting as a trustee due to their non-compliance. This will take into account the severity of the contraventions and the likelihood of them reoccurring. Continuing to act as a trustee after disqualification is an offence that may result in further penalties.

Civil and criminal penalties

Civil and criminal penalties through court can apply when SMSF trustees contravene with provisions such as:

  • The sole purpose test
  • Prohibition of avoidance schemes
  • Promotion of illegal early release schemes
  • Duty to notify the regulator of significant adverse events.

Non-compliance notice

SMSFs may be issued a notice of non-compliance when serious contravention of super laws have occurred. This causes the fund to remain non-compliant until a notice of compliance is received. For every year the fund remains non-complying, its assessable income is taxed at the highest marginal tax rate.

Winding up the fund

After a contravention has occurred, the trustee may wind up the SMSF and roll over the remaining benefits to an Australian Prudential Regulation Authority (APRA) regulated fund. However, in some cases, the ATO may continue to issue the SMSF with a notice of non-compliance and/or apply other compliance measures.

Freezing the SMSF’s assets

A trustee may be given a notice to freeze an SMSF’s assets when it appears that conduct by the trustees or investment manager may adversely affect the interests of the beneficiaries. The notice may restrict the trustee or investment manager from acquiring assets and disposing of assets.

Things to know about the First Home Super Saver Scheme
Super | 05 4th, 2020|

Individuals looking to buy their first home may claim up to $30,000 of their super contributions through the First Home Super Saver (FHSS) Scheme, which aims to reduce pressure on housing affordability.

The scheme allows first home buyers to save money within their superannuation fund and accumulate faster savings with the concessional tax treatment of super. Eligible individuals who are able to use up to $15,000 of voluntary contributions per year, and a total of $30,000 contributions across all years. The FHHS amounts received will affect your tax for the year it is released to you; both the assessable and tax-withheld amounts from your FHSS payment will need to be included in your tax return.

The types of contributions eligible to go towards the FHHS scheme are voluntary concessional contributions and voluntary non-concessional contributions. Contributions can be made up to your existing contributions cap.

To be eligible for the scheme, individuals must:

  • Be at least 18 years of age.
  • Have not previously owned property in Australia, or have previously released First Home Super Saver funds.
  • Have the intent to live in the property you use the funds to purchase as soon as practicable, for at least the first 6 of the 12 months of owning the property.

Individuals experiencing financial hardship may also apply for the scheme even if they have already purchased property in the past if their financial hardship has resulted in a loss of property interest. This may be applicable to individuals who have experienced events such as:

  • Bankruptcy
  • Unemployment
  • Divorce
  • Natural disasters
  • Illness.
Assistance available for SMSFs and their members
Super | 04 30th, 2020|

The Government’s economic response to coronavirus will provide SMSFs and their members with additional support, including reducing minimum drawdown rates and early release of superannuation.

The minimum annual payment required for account-based pensions and annuities has been reduced in an initiative to assist retirees. For the 2019-20 and 2020-21 financial years, the minimum annual payment required for members has been reduced by 50%.

If the minimum drawdown amount has been paid, no further payments will be required for the rest of the year. Those who have already paid more than the minimum drawdown amount are able to have their member recontribute this amount if the member is eligible to make contributions. Re-contributions will continue to be subjected to rules or limits, such as contributions caps.

Members of SMSFs who have been adversely affected by COVID-19 may be able to access up to $10,000 of their super before 1 July 2020, as well as a further $10,000 between 1 July 2020 and 24 September 2020, on compassionate grounds. To be eligible, members must satisfy at least one of the following criteria:

  • They are unemployed.
  • They are eligible for certain government support payments, including a job seeker payment, youth allowance for jobseekers or parenting payment.
  • They were made redundant on or after 1 January 2020.
  • They had their work hours reduced by at least 20% on or after 1 January 2020.
  • They are a sole trader and either had a turnover reduction of at least 20% or had their businesses suspended, both on or after 1 January 2020.

Applications for early access can be made through myGov.

In addition to these initiatives, the Government will also be automatically deferring the lodgement of 2019 SMSF annual returns until 30 Junes 2020.

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