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SMSF’s and non-arm’s length income

Posted on 30 June '15 by , under General News.

Self-managed super funds and related parties must transact on arm’s length terms. This ensures that both parties are acting in their own self-interest and will not succumb to any pressure from the other party. The true market value of an asset should always be reflected in the purchase and sale price of assets.

Members need to be aware of any income that can be classified as non-arm’s length to avoid being taxed at the highest marginal rate.

A potential non-arm’s length hazard is a limited recourse borrowing arrangement (LRBA). Under an LRBA, a member can borrow money to purchase an asset and receive the beneficial interest, but the legal ownership of an asset is held on trust by a related party for the SMSF member.

Problems arise when the alleged loan is not at commercial rates. For example, the ATO found two members of a self-managed super fund had a loan with zero interest. Consequently, the income acquired by the SMSF member as a beneficiary of the holding trust was considered to be non-arm’s length and they were subject to 45 per cent tax.