Reflecting on SMSFs in 2011

As the 2011 year comes to a close, it’s a time to ponder where the SMSF industry has come from in the last 12 months and also where it is heading…

This time last year, we had just seen the Government’s response to the Cooper Review, with many of these reforms now only 6 months away (although there does appear for some work still be done on FoFA and the Approved Auditor registration reforms).

In reflection, here’s some of the interesting things impacting SMSFs from 2011:

  • Total SMSFs grew by 7%*  to 450,498
  • Total assets grew by 3.4% to more than $397 billion; predominantly driven by an increase in cash held by SMSFs.  Property also grew in asset value for the year, however shares on the other hand, were the asset class hard hit due to the continued global financial problems.
  • Excess Contributions Tax continued to grow as a key industry issue, with an increased number of assessments by the ATO… and to think that the most recent published statistics showed that the ATO had only just started on the 2009-10 financial year, where the Labor Government halved the concessional contribution cap!!
  • We did however see some sort of olive branch by the Government, with a proposed ‘once-off’ refund of Excess Contributions Tax.  This was not retrospective though, taking effect for the 2011/12 financial years and onwards.
  • We continue to await details of the proposed concessional contribution cap extension for those 50 years of age and over with account balances of less the $500,000.  A budget commitment in 2010 and re-affirmed in 2011, we currently appear no closer to an outcome from Government to this administrative nightmare!!
  • The year also saw two important rulings issued, although the industry responses to these could not have been any further apart.  The views expressed by the Commissioner on key concepts of limited recourse borrowing arrangements were embraced by many who were pleased in the practical approach taken to the single acquirable asset definition and also the ability to make improvements to an asset using the SMSFs own resources.  The more controversial ruling issued in July 2011 was when a pension commenced and ceased.  Many of the views expressed by the Commissioner, whilst not necessarily having changed since a previous interpretation in 2004, were broadly criticised with their interpretation and also of the unintended consequences.  With all responses to the ruling also in the hands of Treasury to review, it is quite obvious that further action will be taken here ensure there is no ‘revenue leakage’ if the industry is found to be correct.
  • The year also saw the introduction of section 62A and SISR 13.18AA relating to collectables and personal use assets acquired from 1 July 2011.  These new rules implemented from the Stronger Super reforms intend to address the legitimacy of SMSFs acquiring these assets for investment purposes, rather than gaining a current day benefit (e.g. hanging a painting on your wall at home).
  • Streamlined TPD insurance tax deductions have also been introduced, distinguishing the level of deductibility based upon whether an insurance policy is classified as ‘any occupation’ or ‘own occupation’.
  • A range of ATO interpretive decisions impacting pension payments, death benefits with stepchildren, and assets acquired where a charge already exists.
* these figures were using Sept-10 to Sept-11 ATO statistics as these are the most recently published by the Regulator.
In my view, 2011 has been more talk than action…  I’m not suggesting that it’s necessarily been a bad thing; however it has been a year where the Future of Financial Advice and Stronger Super reforms have been heavily debated, with most of these reforms expected (but not yet assured) to take effect from 1 July 2012.  Add to these reforms, unresolved discussion papers on extended contribution caps, refund of excess contributions, amongst other things that reiterate my views on the year.
Many people in the financial services industry are already “reformed out” from 2011, however the real challenge lies ahead in 2012.

 

A Christmas Message from Aaron Dunn

I would like to take this opportunity to wish all my followers and readers a Merry Christmas and Happy New Year.

I look forward to providing you with more of my views and strategies on Self Managed Super Funds in 2012.

Excess Contributions Tax a key focus for ATO prosecution

I was interested to read on the ATO’s website this week an updated Superannuation Prosecution Strategy in relation to issues and risks attached with superannuation and taxation law.

The strategies available to the ATO to address non-compliant behaviour of taxpayers may be:

  • administrative (for example, conducting an audit, raising a default assessment, imposing a penalty, non-compliance of a self managed superannuation fund); or
  • by prosecution (including civil and criminal offence).

The most appropriate options for the ATO in dealing with non-compliant behaviour is dependent on the circumstances of each case.

For SMSFs, the Commissioner has additional options for prosecuting contraventions of the civil penalty provisions as a civil or criminal offence (s.193, SIS Act). Generally the matter can be treated as a criminal offence where dishonesty or deceit is involved.  The distinction between a criminal and civil offence is that many criminal offences may lead to imprisonment, while a breach of a civil offence carries a monetary penalty only.  Some criminal offences also carry a monetary penalty. Accordingly, the distinguishing feature of a criminal and civil matter is the requisite standard of proof – in a criminal matter the standard of proof is ‘beyond reasonable doubt’, while for a civil matter it is ‘on the balance of probabilities’.

Excess Contributions Tax

The most interesting element of this publication was the focus of the “Superannuation Prosecution Plan for 1 July 2011 to 30 June 2014″.  This report outlined how the ATO intend to further target issues of excessive contributions including where SMSF members seek to avoid or reduce their excess contributions tax liability by:

  • falsely reporting contributions — including amending amounts reported;
  • including misleading valuations of in-specie contributions falsely;
  • amending their personal income tax returns to enable a superannuation contribution deduction;
  • superannuation funds whose reporting has been falsely amended to reduce an individuals excess contributions tax liability; or
  • where fraud and other criminal offences are detected.

Ongoing issues of ECT only highlight further the importance of understanding the mechanics of how the contribution caps operate.  The penalties for trying to avoid excess contributions tax may end up a lot worse than the original tax liability!!

Got an excess contributions tax problem?  Read my previous post, “help… I’ve got excess contributions” or you can watch a previous webinar on dealing with excess contributions tax.

Find out more about the updated ATO Superannuation Prosecution Strategy

How does a SMSF limited recourse borrowing arrangement work?

This short video explains how a SMSF limited recourse borrowing arrangement works in accordance with section 67A of the Superannuation Industry (Supervision) Act 1993.

This is the first of many short videos that I will start producing on various SMSF topics and strategies can be used.

Let me know what you think by rating the post!!

New ATO Statistical Overview released… good for the industry, but more to be done

The ATO Statistical Overview shows SMSFs growing from strength-to-strength, however more statistical information is required to better understand behaviour of trustees/members

As previously announced over a month ago on thedunnthing blog, the Australian Taxation Office has yesterday released an updated statistical overview into Self Managed Super Funds for the 2008-09 financial year. This report is an update to the Statistical Summary prepared on the request of Jeremy Cooper, Chair of the Super System Review.  He used this report as part of Phase Three to debunk many of the myths surrounding SMSFs and ultimately conclude that the SMSF sector was in fairly good shape.

A recommendation of the Stronger Super reforms is to improve the statistical information available of SMSFs to better understand the sector.  The ATO as Regulator is in the best position to provide this reporting through the information they gather each year in the SMSF Annual Return and fund establishment process.

This report provides us with a greater insight into SMSFs than the quarterly statistics issued on SMSFs, so the updated report is well overdue for the industry.  However in my view it needs to be expanded further to better understand all the elements within the SMSF life-cycle.  Unfortunately, with the need for greater statistics comes the need for trustees and SMSF service providers to collate and report this information.  The issue of cost in improving this statistical data is a potential impairment for the Government.

There has already been some positive talk from this statistical overview about the sector’s growth, both in the number of funds and also in total super assets.  SMSFs have moved from being a retirement vehicle for baby boomers to a retirement vehicle of choice for those individuals who wish to become ‘engaged’ in their superannuation savings.  As a result, we are seeing significant growth in the 35-54 age demographic setting up SMSFs.  This is in my view a collective of factors including greater engagement, coupled with improved financial literacy, greater investment choice (including the ability to leverage investments), along with the having an adaptable retirement savings vehicle that moves as individuals move employment.

Disappointingly from these statistics, we see no break down in the contributions, in particular member contributions that are provided as off-market or in-specie asset transfers?  This information is readily available within the SMSF Annual Return.  By not providing this information, I believe it has impacted the ability for the SMSF industry to put forward a valid argument on the Stronger Super reforms recommendation to remove listed shares from related parties exception (s.66, SISA) from 1 July 2012.  The reality is the Government has responded to a Cooper Review recommendation to ban off market transfer of listed shares on ‘hear-say’ stories of the industry (whether true or not).   In my view, I think it would be valuable to not only look at contributions to SMSFs at a macro-level, but also understand how these contributions got into the fund, e.g. as business real property or listed shares transfers.

The statistical report also shows the continued growth in SMSF net flows (total contributions and benefit payments).  The statistics support that not only did the Simpler Super reforms provide an incentive to get money into super, but the draw down benefits (in particular post-60) have meant we are seeing a growing percentage in the benefit payments taken each year.  The popularity of Transition to Retirement would also be attributing to the increase in benefit payments.  However, a macro-view is taken to benefit payments, rather than providing information on how these benefits are being withdrawn, either as lump sum or via income stream (such as account based pension).  I believe, providing greater information in this area will help the industry and Government better understand the direction retirement income stream policy needs to be taken in the future.  It would be good to be able to identify whether on average, members are ‘living beyond their means’ and how that will influence how long their money will last against average life expectancy, etc…  The issue of longevity risk would be the number one emerging issue in superannuation right now.

A few other areas of note from the statistical overview:

  • It staggers me than only one in every ten new SMSFs established are within a corporate trustee;
  • SMSFs whilst growing in the area post-retirement benefits, very few establish funds and commence income streams immediately (only 11%).  49% of funds commencing pensions within 2009, had been in existence for 5 or more years;
  • The concept of a ‘family fund’ doesn’t appear to be gaining traction… only 4% of funds have 3 or 4 members;
  • The entry point for SMSFs appears dropping in more recent times.  Growth has occurred in all ranges up to $500k.  This may be due to performance dissatisfaction as a result of financial markets – historically the number of new SMSFs have grown in poor financial markets.  Conversely, there has been an asset size decline in member balances >$500k.  This will have come about from a variety of reasons including the impact of GFC coupled with an increasing trend in benefit payments; and
  • SMSF Trustees appear to have taken an active response to their investment strategy as a result of the GFC, with a move to cash and term deposits.  Holding of real property has also grown which would incorporate the law changes to allow limited recourse borrowing from 24 September 2007;  It will be interesting to see in future data, when SMSF trustees look make that shift back into listed equities;
I will provide a detailed analysis on the impact of SMSF service providers in this report in the coming days… these statistics on tax agents, and auditors are quite interesting when looking at a fund’s overall operating expenses.  I’ll be providing my thoughts and views on this area, in particular the evolving role that technology (and greater competition) is appearing to play.

View the ATO Statistical Overview 2008-09.

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