Navigating the complex landscape of Self-Managed Super Funds (SMSFs) can be challenging. Ensuring compliance and avoiding tax pitfalls like Non-Arm’s Length Income (NALI) are critical for trustees, particularly when it comes to rent valuations for related commercial tenancies.
The Trustee’s Responsibility
As a trustee you must ensure that all rental transactions with related parties are at arm’s length. This involves having a current, enforceable lease agreement that specifies arm’s length rent and terms. Rental valuations must be up-to-date, backed by either market comparatives or a confirmation from an agent as to what is a reasonable rental yield based on comparable properties.
The NALI Conundrum
If your SMSF doesn’t transact at arm’s length, the fund’s income may become NALI and will be subject to tax at the highest marginal tax rate. This also creates a significant issue for your SMSF auditor, who may have to qualify the Part A audit opinion if your SMSF’s tax provision doesn’t reflect this increased liability.
The Compliance Challenge
Superannuation rules prohibit any investment dealings that are not at arm’s length. This is especially relevant when maintaining lease arrangements where any deviation from arm’s length dealings could also result in a compliance issue, reportable to the ATO by your SMSF auditor.
Yearly Valuation: Not Always Required
While the ATO mandates annual revaluations in some contexts, it’s not always obligatory for rent. Instead, the rent can be indexed to an appropriate market measure and adjusted yearly. However, trustees should beware of long-term leases that fail to make regular market adjustments, as these can be deemed non-arm’s length, incurring compliance issues.
Final Thoughts
As trustees you must be, at all times, vigilant in maintaining arm’s length investments including rent valuations. It is also your responsibility to ensure that you have adequate evidence to support the arm’s length arrangement. Failure to do so can lead to significant tax consequences and potential compliance issues for your SMSF.
Transacting with related parties and understanding how the superannuation law interacts with the tax laws is complex. It is important to seek advice from an SMSF Specialist Advisor who can explain and assist your SMSF to comply with the arm’s length rules. To find your nearest SMSF specialist adviser, use our Find a Specialist function.
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