Undoubtedly most advisers and many trustees have become aware that proper use of limited recourse borrowing arrangements (LRB) by self-managed super funds is a pathway to acquiring assets which would otherwise be beyond the financial capacity of many small to medium funds.
The vast majority of LRB arrangements deal with the acquisition of real estate, but there is nothing to prevent an SMSF from acquiring any type of property otherwise allowable under the Superannuation Industry (Supervision) Act 1993 (SIS Act) using an LRB arrangement. However, given that in particular, commercial real estate is one of the few assets which are not controlled by the ‘in house asset rules’, LRB arrangements provide a significant advantage.
As you may be further aware, rulings issued last year have further enhanced the attractiveness of LRB arrangements in as much as guidance is now available, including practical examples on a range of issues which previously in many cases were far from clear. The Commissioner has now expressed his views on 3 key areas, namely:
- What is a single acquirable asset;
- The distinction between maintaining / repairing an asset as opposed to improving it; and
- The issue of when a single acquirable asset changes its character by way of a replacement asset(s).
Having identified the opportunity to acquire an eligible asset, it is crucial that any LRB arrangement falls within the relevant terms of the SIS Act and that the documentation reflecting such arrangements observes and complies with the legislation. Clear compliant documentation will assist in avoiding a range of pitfalls that can often cause an LRB arrangement to fall foul of the SIS Act or to result in unintended duty consequences including:
- Ensuring that the role of the Custodian is limited to allowable activities;
- Avoiding the potential of double stamp duty when title to real estate is taken by the SMSF;
- Preventing section 109 related party breaches from occurring; and
- Ensuring that the lender and the Custodian are clearly separate parties with separate rights and obligations.
KCL Law offers a range of commercial documentation to assist any SMSF that wishes to undertake an LRB arrangement. Our documentation not only assists in keeping an SMSF compliant with the SIS Act but does so in a user friendly easy to read style that allows an SMSF trustee to be clear as to the various obligations surrounding an LRB arrangement.
In documenting an LRB arrangement, we can assist trustees who are both accessing loan funds from related parties as well as in the circumstances where a bank or third party arm’s length lender is involved.
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