Can my SMSF invest in property development?

Can my SMSF invest in property development?

The Australian passion for property, combined with enticing tax benefits such as a 15% tax rate during the accumulation phase and possibly zero tax during retirement, motivates many SMSF trustees to envision hefty returns from property development ventures. We delve into the advantages, disadvantages, and common pitfalls.

Your SMSF may indeed channel funds into property development, provided that the investment adheres strictly to regulatory guidelines. The rulebook is thick, with the ‘sole purpose test’ at its core. Trustees are obligated to manage the fund in a way that ensures it serves its primary purpose—securing benefits for retirement, ill health, or death. Violations of this crucial principle can lead to severe consequences, including forfeiture of the fund’s tax advantages and both civil and criminal repercussions.

Given its inherently speculative nature, property development should not be approached as an easy financial windfall, especially if the development involves internally connected individuals.

Here are several avenues through which an SMSF may engage with property development, subject to the fund’s investment strategy permissions:

  • Directly developing property
  • An ungeared unit trust or company (the parties can be related)
  • Investment in an unrelated entity
  • A joint venture

Directly developing property from fund assets

Your SMSF is permitted to procure land from a third party and manage the development itself. However, some recurring challenges include:

Purchasing land from an affiliate – The SMSF is barred from buying land from an affiliated individual (unless it constitutes business real property entirely used in a business). Consequently, land acquired by inheritance or controlled by a family trust cannot be transferred to the SMSF for development purposes.

An SMSF cannot borrow to develop property – Although SMSFs can leverage a limited recourse borrowing arrangement to acquire land, they can’t use borrowed funds for the actual development. Additionally, the nature of the asset shouldn’t be altered until the loan is completely settled—meaning no development activities are allowed in the interim.

Selecting the developer – When the developers have personal ties to the fund’s members, complications often ensue. Engaging a related builder is feasible, but stringent regulations demand market-value transactions for labor and materials—foregoing any “friendship discounts.” Impeccable documentation and market-rate dealings are crucial when working with related builders.

Consideration for GST – The development and subsequent sale of the property may attract Goods and Services Tax. If the Australian Taxation Office (ATO) deems the SMSF as carrying on a property development business or engaging in a one-off development commercially, GST implications may arise.

If your SMSF is not undertaking a property development project in its own right, there are a few ways for an SMSF to invest in property development projects:

Related ungeared trust or company

An ungeared company or trust is often used (under SIS Regulation, section 13.22C) when related parties want to invest in a property development together. The SMSF can invest in a company or trust that is undertaking a property development as long as the company or trust:

  • Does not lease to a related party (unless business real property)
  • Does not borrow money or have borrowings (must be ungeared)
  • Does not conduct a business
  • Conducts any dealings at arm’s length
  • And, the assets of the unit trust or company:
    • Do not include an interest in another entity (i.e., cannot have shares in a company)
    • Do not have a charge over them (i.e., mortgage over any asset)
    • Are not purchased from a related party (or was ever an asset of a related party) unless the asset is business real property acquired at market rates.

See section 13.22C for full details.

Profits from the company or trust are then distributed to the SMSF according to its share.

Using the provisions of 13.22C means that the SMSF can invest in property development with a related party without the development being considered an in-house asset. However, if the criteria are not met (at any point), the in-house asset rules apply, and the SMSF might have to sell the units in the trust or shares in the company to return to the maximum 5% in-house asset limit. Generally, this means the sale of the underlying property or a significant restructure.

Problems arise with 13.22C arrangements where the trust or company:

  • Needs more money to complete the development and borrows money, or issues more units and sells them (is in business)
  • Accepts a loan from a member of the SMSF
  • Overdrafts (may be considered loans and breach 13.22C)
  • Uses a related party builder who either under charges for the work completed or overcharges and strips the profits that should have been returned to the SMSF.

Warning on conducting a business

One of the criteria for the exemption in 13.22C to apply is that the trust or company cannot be conducting a business. This requirement may prevent short-term property developments that are built and sold for profit.

Typically, 13.22C arrangements are used for long term investments where the development enables the creation of an asset that is then leased by the trust or company. This could be commercial premises leased to a related or unrelated party (e.g., premises for a child care centre or manufacturing), or residential premises leased to unrelated parties (e.g., townhouses or small developments).

Unrelated property developments

Investing in unrelated entities for a property development is attractive as there is no limit to how much of the fund’s assets can be invested (subject to the investment strategy and trust deed allowing the investment), and unlike ungeared entities, the entity is able to borrow money/place charge over the assets.

Where related parties are investing in the same entity, there are rules governing the percentage of ownership the SMSF and their related parties can hold. To meet the definition of unrelated entity for in-house asset purposes, the SMSF and their related parties must not own more than 50% of the units available. This is because the SMSF cannot control or hold sufficient influence over the entity and remain an unrelated entity. If the ATO considers the entity is related to the SMSF, then it would become a related party and the investment an in-house asset.

Joint venture arrangements

An SMSF can potentially invest in a joint venture (JV) property development, but the criteria are necessarily strict and there are a range of issues that need to be considered carefully. One of the issues that needs to be considered up-front is determining the substance of the arrangement between the parties, because the term JV can be used to describe a variety of arrangements. The ATO confirms that care must be taken to ensure that arrangements with related parties are true JVs.

Under a JV, the SMSF invests in and has a share of the property being developed (not the entity undertaking the development). Each party bears the costs (time and/or money) of the JV and receives this same proportionate contribution from the returns. If the arrangement is not structured properly then the SMSF’s stake in the JV could be treated as an investment in or loan to a related party and be treated as an in-house asset. For example, this could be the case if the SMSF only provides a capital outlay for the arrangement and has no rights other than a contractual right to a return on the final investment.

It is also necessary to consider whether the arrangement between the parties could be treated as a partnership for tax, GST and legal purposes. For example, this could be the case if the arrangement involves the sharing of income, sale proceeds or profits, rather than sharing the output from the project.

It’s essential to get advice well in advance – tax, legal and financial – before pursuing a JV.

Is your SMSF the best vehicle for property development?

Trustees need to carefully consider any investment decisions and have a sound rationale for the investment.

Any advice on a property development needs to be from a licenced financial adviser. A lawyer should be used for any contracts or agreements between parties. And, compliance assistance from a qualified accountant.                   

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