The government has just announced that from 1 July 2024 the standard concessional contribution cap will increase from $27,500 to $30,000

The non-concessional contribution cap which we calculate as four times the standard concessional contribution cap will also increase from $110,000 to $120,000.

This will also bring about a higher non-concessional bring forward cap of $360,000 if triggered in the 2024/25 year onwards.

We encourage our clients to continually review their superannuation plan. In many cases superannuation is an effective strategy moving forward as you are nearing retirement . Please contact us if we can assist you in this area

SMSF for Property development undertaken by an SMSF can be undertaken. We however strongly recommend seeking advice.
ATO has issued a warning about relates to the use of SMSFs to invest in property development in a manner that inflates the profits earned by the SMFSs when compared to the capital the SMSF commits to the venture.

Can my SMSF invest in a property development?

An SMSF can as part of its investment strategy invest in property ventures. This is provided the investments are entered into on a genuine arm’s-length basis. As trustees, you should document your strategy including a risk analysis of the project.

If investments are entered into with related parties, even though on an arm’s-length basis, care still needs to be taken. Keep reading to understand what you should do!

A scheme that was identified by the ATO, an arm’s length third party contracts with a company related to SMSFs to build several units or apartments ie a property development. Those who control the SMSFs provide services to the company (which they control) and charge low fees to that company. Also, loan capital is provided to the development company at a low or no interest rate.

Inflated profits warning signs

In this scheme, the development company earns inflated profits. These profits (after the company pays tax on the profits) are then paid as fully franked dividends up a chain of companies to the SMSFs.

The development company in this case will have paid tax at a rate of 30% on the profits earned. When the profits reach the SMSF as fully franked dividends, the tax paid by the company is refunded to the extent of the SMSF only paying 15% of the profits. Hence reduced tax liability

The ATO would state that this means the SMSF contravenes the superannuation and tax laws. Furthermore, this is because the SMSF is earning “non-arms length income” (NALI). NALI earned by a superannuation fund is taxed at 45%. The SMSF may also be treated as a non-complying fund because it may have breached the “sole purpose” test. This means it will have lost all of its tax-concessional status.

Tips worth noting before using your SMSF for property development:

Financing and Borrowing

• Limited Recourse Borrowing Arrangements (LRBA): While SMSFs can borrow to invest under LRBAs, there are strict rules about borrowing, especially when it comes to property development.
• Personal Guarantees: Trustees should be cautious about providing personal guarantees for loans, as this can risk personal assets.

Development and Construction

Building the development and Contractor Selection: Engaging contractors for property development must be done at arm’s length,. This means competitive pricing and no preferential treatment to related parties. The building also needs good Project Management: Trustees need to actively manage the project or engage professional project managers to ensure the development is completed on time and within budget.

Tax Considerations and Implications for SMSF Property

• Capital Gains Tax (CGT): SMSFs can benefit from reduced CGT rates on investment properties held for more than 12 months.
• Income Tax: Rental income and any profits from the sale of developed property are subject to income tax at concessional rates within the SMSF.

Exit Strategy

While an exit strategy requires a sale of property Liquidity and Exit is important considerations. Before embarking on a property development venture, consider how the SMSF will exit the investment. Property can be difficult to sell quickly, which may impact the fund’s liquidity. Especially if the member is of old age or needs to fund a pension

Gartly Advisory specializes in helping both clients establish and operate an SMSF and also those who undertake property development.

How do I sell my commercial business property? When selling your business, your business operations and HQ are an essential and strategic part of your business.

Most businesses operate from a premise of some sort, so when it comes to exit planning, your decisions on what to do with your business premises is equally important as one of the essential items that require serious discussion and planning.

When it comes to planning, the first thing to do is to review how and what you use your office, factory shop, etc., as part of the business on a day-to-day basis. For that reason, the location may be the reason for the business’s success,. Coupled with the possibility that the business building and surrounds such as a hotel, fun park or caravan park may be the selling point. The business HQ property may also have been purpose-built, and your business sale value may be exploited if the business and property are sold as one package.

Further your business may have multiple premises to consider, which factor into the strategy along with what can be sold, consolidated, and required moving forward.

Strategic Review of the Business, how it operates and where

As part of the exit strategy, take a moment to review the business. In short look at the location it operates to help you work through your exit planning:

• Will, upon exiting or selling, the business be relocated?
• If the business is to be sold separately from the property, how does this affect the business disruption?
• CGT issues?
• Will the owner wish to sell or retain the property for the next generation, and how will this take place?
• Are there other uses for the property, e.g., development or retirement?
• If the business operates from home, consider whether this is the right location for selling the business.
• What are his wishes for the family and passing the property on to the next generation?

Is your property ready for Sale?

The owner needs to review the property to ensure it is in a sellable state. Take a moment and look at:

• Access and potential change of Council Zoning. What points of access are there in and out of the property?
• Fire safety:  Does the property comply with fire safety and other emergency safety factors?
• Security:  Is the property safe and secure?
• Surfaces:  Do they feature lead paint and dust? Are the floors slippery, OHS?
• Hazardous materials and toxins:  Does the building present any dangers associated with asbestos used in its construction?
• Old fuel tanks and other old substances – Banks hate these when it comes to financing
• Installed plant and equipment:  Is the equipment, such as air conditioning systems, in good working order and maintained?
• Lighting: Is the property well-lit for the purpose you intend to use it?
• Air quality: Is the building adequately ventilated?
• Is your property have sentimental memories? Will this influence you and should be considered as being held for the next generation

Consider all options!

There are some options to consider when it comes to your business real estate you own. These can be classified as follows:

• Keep the property and treat it as a long-term investment
• Transfer to SMSF
• Sell with business
• Sell the property separately from the business
• Relocate the business and develop the property before selling the business
• Leave to next-generation – family farm
• Sale-leaseback arrangement

Sell or keep your freehold property

Let’s first look at why you may not sell the freehold property and choose to keep it and sell only the business:

• It might be too hard to consider – too much work
• The passing of the land onto family – save for subsequent generations, so needs to be kept
• The property value may exclude or reduce the number of  potential interested  buyers if the property is sold with the business
• You may start another business on the property
• It is better sold as a development opportunity
• Maybe a good long-term investment
• Strategy – especially for hotels etc., where you may wish to sell the business but take back long-term for a family
• Your real property may have been used to guarantee a business loan, i. Selling the property may impact another loan security used in another part of the business that is not being sold.
• The business may have multiple uses, or some businesses may work on the same premises.

Why you may consider selling the best option!

Opposite to the above, here are some valid reasons why you would sell the property at the time of selling the business:

• Some businesses need specialised buildings and assets from which to conduct their operations. Therefore, you may have the opportunity to sell the property to a buyer who appreciates the attributes of the building.
• When deciding to sell the business,  will the purchaser of your business wish to relocate it to another location and may leave you with an unwanted property in the future
•  Investors avoid investing in highly specialised assets like laboratories or dedicated production facilities. The primary risk for investors is the use of the building should the tenant company, the buyer of the business, default or not renew at the end of the lease period.
• If your business is specific, it would most likely be best sold with the business for the buyer to have business certainty.
• Time to reassess the financial plan for retirement
• Issues of maintenance that will require significant capital moving forward.

Whatever you intend to do, take time to make sure the structure you have chosen to hold the business vs the property works for you from a tax and estate planning perspective.

Reduce the CGT pain – use the tax concessions available for small businesses and the sale of your business commercial property:

• General 50% discount but not for Companies and reduced for SMSF
• 15-year exemption: If your business has owned the premises for 15 years and you are 55 or over, retiring, or permanently incapacitated, you will not have an assessable capital gain when you sell.
• If you have held the property for less than 15 years – it must be held for 7.5 years
• 50% active asset reduction:  You can reduce the capital gain on your premises by 50%.
• Retirement exemption:  Capital gains from the sale of your premises are exempt up to a lifetime limit of $500,000. If you are under 55, the exempt amount must be paid into a complying superannuation fund or retirement savings account.
• Rollover: You can defer your capital gain from the sale of the business until another event happens that crystallises the gain. For example, suppose you sell your existing business premises and buy different premises for your business within a specified period. In that case, you can defer your capital gain until the new premises is sold down the track.

Traps when utilising the CGT concessions.

It is crucial to check that assets, such as the business real property owned by the taxpayer, have been held by a ‘connected entity’ for at least half the business ownership period (or 7.5 years).

Where the necessary level of ‘connection’ does not exist, it may be possible to implement a restructuring without material cost to ensure that the entities are ‘connected. ‘

Selling your business property: do you meet the definition of an Active Asset?

Where there is a question of whether the amount paid constitutes “rent”, a pivotal factor to consider is whether the occupier has a right to “exclusive possession” of the property. The payments will likely be classified as rent if such a right exists.  – means no active asset!

If the arrangement allows the occupier only to enter and use the premises for specific purposes and does not amount to a lease granting exclusive possession, the payments are unlikely to be rent.

In summary

• Exit planning requires advisors to review all aspects of the business operations, and the business location and premises impact the pathway chosen to obtain the best result for your client.
• Don’t ignore the legal implications of the property regarding lease and ownership.
• Think of generational ownership issues and how they may impact
• Look at specific property types and intrinsic matters
• If you ask a purchaser to relocate the business away from the present location – think about how and the implications for the business sale and ongoing stability. Also, the cost of relocation
• Plan the Tax, GST and stamp duty implications of the decision
• Don’t leave the planning too late

Of course, planning for any business should be part of every person’s business exit plan. Please note this is general advice. We welcome you to book a time to discuss your affairs and help you plan for a wealthy retirement.

Deciding to implement an SMSF setup is something that needs a plan if undertaken.We are observing that our clients are taking the opportunity to review their Superannuation and retirement goals, The markets are changing, and people are beginning to plan for their retirement strategy.

We are receiving several questions from clients asking whether, given the current market fluctuations of their investment in the superannuation, it is a great time to take charge of your own Superannuation. Some are evaluating if it is a great time to take control by setting up a new Self-Managed Superfund, commonly known as an SMSF.

Investment choices

Clients are considering a range of investments when it comes to their SMSF. These include commercial property, shares, and less conventional investments such as bitcoin as part of their investment strategy. Please do your research for your circumstances and ensure the appropriate Investment Strategy is documented for your Fund.

We can work through with you your strategy to purchase a residential property or commercial property within your SMSF. The key is understanding what restrictions are in place before starting this process.

There are several benefits to being your own Trustee of your SMSF. And hence the ability to run your own Fund. For example, as a Trustee, you can react and manage your superannuation savings. This is because you have greater control and flexibility over your investments. You can take a more hands-on approach to acquire or selling investments within your super fund. This includes responding quickly to opportunities to realign your investment portfolio as the market changes.

But you also need to be aware that being an SMSF comes with the fact that there’s more work for you as a trustee to manage your investments. In doing so, you must ensure you have the expertise and confidence to evaluate your investments. You also need to ensure your SMSF is following its investment strategy. We can certainly assist you here, but you must be prepared to keep records and understand that your SMSF investments are for retirement.

ASIC does not recommend setting up an SMSF with a small balance. Typically a fund should have a combined balance of $200,000 plus to be a viable Fund. You can combine your benefits with other family members, and please discuss with us if this is your option.

Not always easy to be a Trustee

Running an SMSF also takes time and effort. You must ensure that your super fund SMSF is managed properly and that you are achieving returns. As a Trustee, it is also essential to follow the rules there. There are there strict laws within the superfund environment that you, as a trustee, understand. We can help you here to make sure you keep on the right side of the Superannuation laws.

As an SMSF specialist advisor, we can help you to review whether a self-managed super fund is a suitable vehicle for you to establish. We welcome you to make time and discuss your needs in relation to your soft-managed super fund needs and your retirements.

Reach out and contact us:

Our latest PODCAST

For those who may have an SMSF borrowing, our latest podcast may be of interest to you. Join me as we discuss the current landscape for SMSF and borrowing

https://welcome-what-makes-your-business-tick.simplecast.com/episodes/smsf-and-borrowings-the-current-trends-j6judYcO?fbclid=IwAR2E-yPV3fU2Ib-g9gFM7X6LyTslnbAgSQI9orZaIvCNKqx6KWeCNgN8aLE

SMSF and commercial property is an investment often held by an SMSF and is a good strategy. Is holding your business premises, Factory or shop in an SMSF a good strategy?

Allowing your SMSF to hold your business real property is a fantastic opportunity for the small business owner to isolate its business asset from the main trading company. It also means you can become a long-term tenant of your SMSF.

There are some distinct advantages for both estate planning and long-term protection strategies of your asset in an SMSF. Any property strategy it must be done properly and there are a few items that you need to address before undertaking this measure in your self-managed fund.

SMSF advantages holding business real property

It is the only opportunity that you have under superannuation law to transfer a business real property from yourself into the Fund. Normally it is not possible to transfer property however your business premises is one exception.

Holding your business real property allows your super fund to grow organically and means that instead of paying rent to a landlord you are paying yourself via your SMSF and growing your retirement funds.

It’s a clever way to pay off your assets and at the end of the day when you retire you can then rent the property to others or have your family be part of your SMSF and they take over the asset
Before purchasing the property or transferring the property with a commercial property take time to work through your Funds investment strategy and how the asset will be acquired by your Fund.

How your Fund can acquire property:

Your fund can acquire the property in a number of ways and these include:
1. Establishing a borrowing in relation to the acquisition of the property however needs to be done in connection with using a bare trust arrangement it is essential that we need a separate bare trust from the SMSF assets If you’re borrowing to buy a commercial property, it needs to be under a limited recourse borrowing arrangement (LRBA). involved.

per the CPA – Borrowing – who can lend the SMSF the money?

There are no restrictions on who can provide the finance for the SMSF, meaning it could include any financial institution, a related entity or a member of the fund.
An LRBA is not a regulated financial product. However, as discussed earlier ASIC has stated that an adviser cannot recommend an SMSF trustee invest in property through their SMSF unless the adviser is appropriately licensed under the AFSL regime. Geoff Gartly has an ASFL and can appropriately advise you in this area.

2. If your Fund has sufficient monies, it can buy in your SMSF and commercial property outright

Or we can arrange for additional contributions to be contributed to help ensure there are sufficient funds.

3. The fund can in some circumstances acquire a commercial property in partnership with yourself or others providing there is no borrowing attached.

Arm’s length dealings

Once you have purchased or transferred the property into the Fund, then you must ensure that you put a commercial lease in place. This is important for both external parties or yourself if you’re running to get back to yourself at a market rental. Importantly once in place, you must ensure rental payments are made per the lease agreement. Failure to do so may make the Fund non-complying.

The property holding Strategy

It comes down to strategy when working out if SMSF and commercial property is the right mix.

Often overlooked is the fact that property and improvements can only be done from cash from the Fund and cannot be done from borrowing, and this should be factored in from the outset
Your SMSF Property strategy should include a :

• Vision for the long-term use of the property
• How the Fund will pay any shortfall if monies borrowed
• What happens if the business owner dies
• If your business is sold, do you rent out or sell the property

Any property sold in a retirement strategy may result in low or no tax payable depending upon the strategy adopted.

We recommend you seek proper advice and the information we have provided is of general nature only

The downsizer contribution is an after-tax contribution. Therefore when it hits your SMSF or super fund, no tax is payable on the way in. It also means upon retirement, and it can be paid as a benefit. A benefit that is returned tax-free when you withdraw the funds from your SMSF

Legislation passed

Last week parliament passed legislation, resulting in the downsizer contribution to allow house owners over the age of 55 to access this strategy. The lowering to age 55 is expected date for the enactment would be later this year (2022)

Downsizer contributions help you to increase your super balance. The downsized strategy a great way to catch up on lost retirement savings and grow your retirement nest.

Do you qualify to meet the downsized contribution strategy?

Per the ATO there are some of the eligibility criteria you must satisfy are:
• The home must be in Australia, have been owned by you or your spouse for at least ten years, and the disposal must be exempt or partially exempt from capital gains tax (CGT).
• You have not previously made a downsizer contribution to your super from selling another home or from the part sale of your home.
• Before (or at the same time) making your contribution, you must provide your fund with the ‘Downsizer contributions into super form.’

The downsizer contribution strategy can work for many who meet the downsizer criteria. It means your investments can grow in a protected environment at a low or upon retirement in the pension phase with no tax environment. This, together with other strategies, can form part of your retirement strategies.

Talk to Geoff, who specialises in SMSF advice and small business exit strategies to help businesses transition from business to enjoyment by unlocking their wealth from large family homes and businesses.