Specifically regarding the SMSF sector, there were some big picture comments and a number of specific recommendations which we detail below.The panel stated that the SMSF sector is largely successful and wellfunctioning , and that while significant changes are not required, there are still a number of issues, which mostly do not directly relate to trustees and members, but instead to service providers and the wider regulatory framework. They...more
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Firstly, lets look at the actual issue the ATO raised, as follows:Does a self managed superannuation fund (SMSF) trustee contravene section 109 of the Superannuation Industry (Supervision) Act 1993 (SISA) if it borrows money from a related party of the SMSF under a limited recourse borrowing arrangement on terms favorable to the SMSF?(Note: Section 109 of the SISA deals with the issue of transactions where the other party to the transaction is not at arms length to the SMSF e.g. a fund member. The provision requires that the terms and conditions of the transaction must not be more favorable to the other party than would be reasonably expected if the parties were at arms length.)The ATO answer was no, this situation does not contravene section 109. Specifically :The terms cannot be more favorable to the related party than would have been the case had the parties been dealing at arms length, but there is no contravention of section 109 of the SISA if the terms are more favorable to the SMSF.Do you see the distinction ? The related party cannot get favorable treatment, but the SMSF can.In our example, say Jim lends money to his self managed super fund under a limited recourse...more
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