Gearing and Super

ONE way to get around the non-concessional contribution caps for superannuation is to use gearing. Under super tax rules, to avoid paying excess contributions tax of 46.5 per cent, you are allowed to contribute only $150,000 a year in non-concessional contributions. However, you can utilise a three-year cap by making a one-off contribution of up to $450,000 if you are under 65 and then not contributing any more than that for another two years.So if you have a commercial property worth more than $450,000 that you want to transfer into your self-managed super fund through an in-specie contribution, you could run into difficulties.By using gearing, however, you can borrow the value of the property either from a financial institution or from yourself or your business at a commercial rate.This is because whatever you borrow is not included as a contribution provided the borrowing arrangement complies with the conditions set out in the law.In fact, you can borrow as much as the fund can service. It's worth noting, however, that most commercial lenders apply an interest cover ratio where the fund's investment income must be a set multiple of the interest cost of the loan. Failure to meet this ratio may give the lender the ability to call on the loan.You can use this strategy to bolster your superannuation balance, regardless of what you make in non-concessional contributions.Of course, gearing into superannuation is not for everybody. Whether it's to invest in shares, property or works of art, it's a complex process that requires sound financial advice and a cost-benefit analysis to make sure it's the optimum route for your circumstances.And it is not cheap either, with estimates running into the thousands of dollars just to establish the loan. Additional costs may include legal advice to establish proper trust and other arrangements, transaction and stamp duty costs and asset administration fees. The importance of establishing the loan and trust arrangements properly cannot be understated as there may be unnecessary capital gains tax and-or stamp duty costs if you don't.Before 2007, superannuation funds were not allowed to borrow to purchase assets. However, uncertainty about whether instalment warrants and instalment receipts involved borrowing meant there was a need to change the legislation.The new rules not only allowed SMSFs to invest in more traditional instalment warrants and instalment receipts generally involving shares, but also in non-traditional instalment warrant arrangements over such assets as property. However, it's important to be aware that the normal investment rules that apply to SMSFs also apply to investments that are purchased using an instalment warrant borrowing arrangement. For example, you cannot make an in specie contribution of a residential property into the fund although you are at liberty to buy residential premises on the open market as long as it is not purchased from yourself or a related party.However, a number of grey areas in the treatment of instalment warrants within super have proved a deterrent to gearing in SMSFs.Last month, the government moved to clarify how instalment warrants will work, particularly in relation to capital gains tax.When an SMSF buys a property or shares through an instalment warrant, it has to set up a separate trust. This separate entity is known by a variety of names: a bare trust, a security trust, a warrant trust or a debt instalment trust. They are basically all the same thing.
If your fund were buying a property under an instalment warrant arrangement, it must be held in the trust until the debt is paid in full, at which point it is transferred into the SMSF. The grey area was always whether that transfer triggered capital gains tax.But last month, Financial Services, Superannuation and Corporate Law Minister Chris Bowen announced an amendment to the tax law so that a superannuation trustee entering into a limited recourse borrowing arrangement to purchase an asset would be treated as the owner of the asset for income tax purposes."The changes will ensure that trustees to superannuation funds who have entered into permitted limited recourse borrowing arrangements will not face CGT obligations at the time the last instalments are paid," Bowen says.Another grey area was whether the super fund trustee or the instalment warrant trustee should be the one to declare any income earned on an asset.The latest announcement confirms it is the super fund trustee who should declare the income. And equally, the fund can claim a tax deduction from earning that income."If structured properly, it will look as though the investment trust does not exist," says Philip la Greca, technical services director at Multiport. "Income flows through to the fund; dividends and depreciation flow through to the fund. It looks as though the fund owns the asset directly."La Greca goes on to say the issue of CGT has been a big concern given that an asset held for five or 10 years could have a reasonable capital gain.Another issue is stamp duty, which, rather than being a federal tax like GST and CGT, is administered by the states and territories. Generally speaking, however, the transfer of a property from a bare trust to an SMSF should be exempt.The recent announcement also brought gearing property into SMSFs into the framework of financial products.As a result, providers have to be licensed. In the past, real estate agents and property developers had been promoting the strategy and this has caused some concern. The move to licensing underlines the importance of having sound financial advice to ensure the strategy is right for your SMSF's circumstances.A downside of having property in your SMSF is that not only is it an illiquid asset but it can also be a large chunk of your fund's investments.What would happen, for instance, if one of the members of your SMSF were to die early and the fund had to make a payout?Deb Wixted, head of technical services at Colonial First State, says in such circumstances it could take time to unwind the arrangement and could be expensive.She also comments that although the latest government announcements have cleared up a number of issues, there is still a lot of scope for interpretation."The Australian Tax Office is still sifting through the issues, so what you do now could still be called into question in the future," Wixted says.But there are other positives in gearing, not least that if the fund still holds the property when it enters the pension phase there will be no capital gains tax payable on the sale of the property. But the wisdom seems to be that the gearing should be well and truly completed by then, otherwise you may have problems with cashflow at the time you may be needing to draw an income out of your super on which to live.Another plus is that once you are in the pension phase, the rental income will no longer be tax assessable, although that also means the interest costs won't be deductible.Of course, gearing into super is not all about property. Indeed, most reports are that while there are plenty of inquiries about borrowing to buy property within super, very few actually end up going down that road.Far more popular is the use of instalment warrants for direct share purchases or to invest in managed funds, although with the latter it may be simpler to invest in a geared managed fund rather than have your SMSF undertake the gearing.Graeme Colley, national technical manager at ING Australia, says borrowing to buy shares in your SMSF means the fund can enjoy the benefits of franking credits. With fully franked dividends taxed at 30 per cent already and your SMSF only paying 15 per cent tax on its earnings, the fund can use the 15 per cent difference to offset other income in the fund.And if you are gearing into these shares, then, assuming the market remains positive, you benefit from the extra exposure. Of course, if shares tumble then you will take a bigger hit.On the shares front, Macquarie, for example, has Equity Lever, which allows you to get leverage in an SMSF.Peter van der Westhuyzen, head of sales and marketing at Macquarie Margin Lending, says Equity Lever has been on the market for some 18 months and has enjoyed strong support."Equity Lever gives you increased investment size in a tax effective environment along with diversification," van der Westhuyzen says. Just as the banks want a low loan-to-value ratio when customers are borrowing for property, the LVR for Equity Lever is below 50 per cent.The initial investment can be as low as $20,000 but the interest rate on the product is 9.55 per cent. borrowing to invest, whether inside or outside super, can be fraught.But if the fund makes the right investment and can service the loan, you could be bolstering your super benefits.And given that superannuation payments are tax-free to those aged over 60 and there is no capital gain on assets sold when in the pension phase, it makes for a reasonably solid argument.If the limited recourse loans start to offer competitive rates of interest and the grey areas of gearing are cleared up, it may well prove an effective strategy for your SMSF.
Gillian Bullock From: The Australian April 14, 2010