SME owners are examining alternative ways to acquire and gear their business premises in the event that the government bars self-managed super funds from directly borrowing to invest using increasingly-popular limited recourse borrowing arrangements (LRBAs).
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These SME owners are responding to a recommendation in the final report of the Financial System Inquiry, chaired by David Murray, that this form of borrowing be prospectively barred. There is speculation that the borrowing rules for SMSFs could significantly change in the months leading to the May budget.
Since September 2007, super funds have been permitted to borrow to invest – as an exemption to the general bar on borrowing – using limited recourse borrowing arrangements. The geared asset must be held in a holding trust until the loan is repaid and creditors cannot make claims against a super fund’s assets other than the geared asset.
SME owners are believed to be among the biggest, if not the biggest, users of limited recourse borrowing arrangements to gear investments – typically to their own business premises – through their SMSFs.
Significantly, business property is one the few types of assets that SMSFs are allowed to acquire from their members and other related parties. As well, business property is one of the few types of assets that funds can lease to related parties, including the members’ businesses, without being limited by the in-house asset rules in superannuation law.
In her latest newsletter, Meg Heffron, co-principal of SMSF administration group Heffron, asks a telling question for SME owners wanting to buy their business premises through their SMSFs: Does the possible demise of limited recourse loan arrangements “represent the end of the world as we know it” for SMSFs to acquire property if they don’t already have the cash?
It seems the answer is a resounding “no”, according to Heffron and Chris Malkin, senior consultant auditor with Baumgartner Superannuation.
Heffron and Malkin says the strategy that SME owners are likely to most use if limited recourse loan arrangements are barred is to arrange for their SMSFs to progressively buy their business premises through ungeared trusts or companies.
“I think ungeared trusts are much underutilised,” says Heffron, “probably because they are poorly understood.”
A typical strategy would involve the members of an SMSF and the SMSF itself owning units in the ungeared trust which acquires the business premises. And then the SMSF progressively acquires more units to eventually gain full ownership. Although the trust is ungeared, the law does not prohibit SMSF members from personal borrowing to acquire units in the trust.
Factors to think about when considering an ungeared trust as an alternative to a limited recourse borrowing arrangement include:
With limited recourse loan arrangements, the geared business premises (or whatever other asset is being acquired) provide security for the loan whereas with a typical ungeared trust arrangement, SMSF members often borrow against the equity in their homes.
This is, of course, linked to point one above. On the face of it with limited recourse loan arrangements, the geared business premises would be at risk if the investment did not succeed. Whereas with the typical ungeared trust arrangement, fund members would have borrowed against the family home and therefore the family home would be at stake. In practice, however, the contrast is not so clear cut.
Malkin emphasises that although with limited recourse loan arrangements, a financier can only make a claim against the geared asset, SMSFs often use almost all of their assets to pay the deposit or initial instalments on the investment. And lenders often require SMSF members to provide a personal guarantee, which typically means that their homes may also be at risk.
“Speaking as an owner of an SME, I usually try to divorce my personal assets from what I do with the business,” Heffron comments. “If I borrow to buy the business premises, I would like to have the loan secured on the business premises – not secured on my personal assets.”
Under existing law, SMSFs using a limited recourse loan arrangement can only drawdown on the loan to make repairs not improvements to a geared property. (This applies to arrangements entered into after July 7, 2010.)
Heffron says that this bar on using borrowed money borrowed under limited recourse loan arrangements may make ungeared trusts more appropriate for an SME wanting to acquire business premises through their SMSFs and then to make significant improvements. Much depends on the circumstances, including professional advice received.
“The super fund or the family trust can buy more units in the ungeared trust,” says Heffron, “and that will provide the money to make improvements.”
Opinions differ among superannuation specialists about which strategy is simpler – limited recourse loan arrangements or ungeared trusts. Again much will depend on the circumstances.
Heffron believes that the limited recourse loan arrangement is generally simpler if the super fund does not intend to make improvements to the property and wants to simply rent it to the members’ business. This is partly because the geared asset is held in a holding trust until the SMSF makes the final instalments on the loan. There is no CGT event or transaction whenever the super fund makes loan instalments.
By contrast, Heffron says there is a CGT event with the ungeared trust strategy whenever the super fund acquires more units. Also Heffron warns in her newsletter that an ungeared trust is “permanently comprised” and loses its concessional treatment if it breaches the “fairly stringent” rules after a super fund invests in it.
From this perspective, the ungeared trust strategy would typically be the clear winner.
As Malkin explains, an SMSF member personally borrowing to buy units in the ungeared trust acquiring the business premises would be entitled to claim tax deductions for interest payments at his or her marginal tax rate. By contrast, an SMSF borrowing under a limited recourse loan arrangement would only be entitled to tax deductions at the standard superannuation tax rate of 15%.
