New ATO rules spell the end of low-cost related party SMSF lending
Lenders offering self-managed superannuation fund loans may benefit from a move by the Australian Taxation Office to require non-financial institution (related party) SMSF loans to be arranged on commercial terms. Related part lending to SMSFs will lose much of its appeal after the new rules take effect.Last week the ATO issued guidelines on "safe harbour" terms for loans by related parties to self-managed superannuation funds.The ATO wants all related party SMSF loans to be structured on commercial terms by June 30.The safe harbour conditions for real property loans include:• a written loan agreement;• use of the Reserve Bank indicator lending rate for the current financial year (which is 5.75 per cent for 2015/16);• a maximum loan term of 15 years, with a maximum five-year fixed interest period included in that term;• a maximum loan-to-valuation ratio of 70 per cent;• a registered mortgage title;• monthly principal and interest repayments; and• no requirement for a personal guarantee.Gadens partner Jon Denovan said SMSF limited recourse borrowing arrangements that did not meet all these terms could still be acceptable if the fund trustee could demonstrate to the ATO that the arrangement was struck at arm's length.Denovan said the trustee would have to show that the terms replicated commercial terms available in the market.Super Concepts general manager of technical services and education, Peter Burgess, said an industry working group had been consulting with the ATO over the rules and the requirements issued last week were similar to those outlined in discussions.Burgess said the biggest issue facing many SMSF trustees would be meeting the deadline by June 30. "The loans must be structured on commercial terms by June 30 and that means any loan repayments for the financial year ending on June 30 will have to be on commercial terms. Some trustees will need to make significant catch-up payments over the next couple of months," he said.