Does anyone know a way to legally involve a Self Managed Super Fund (SMSF) in an investment property that is subject to a mortgage?
I came up with the following scheme;
Super Fund buys units in Unit Trust A. (quite legal provided that the assets of Trust A are not subject to any charge).
Unit Trust A buys units in Unit Trust B.
Unit Trust B borrows from bank to buy Investment Property (IP).
Is this brilliant or what?
The trustee of all three entities – SMSF, Trust A and Trust B, is acompany of which myself and my wife are both directors.
I would appreciate your thoughts
Sounds brilliant but unfortunately this will not work. The two unit trusts are related parties and the investment in their units is limited to 5% of the super funds total assets. You would be breaching the in house assets test and the penalties are quite severe.
You need to discuss your self managed super fund strategies with a good accountant as few people would understand these complex rules without advice.
JB
Barbara Smith of taxpayers Aust suggested two ways, one of which I didn’t hear[]
The other way is to have the Super Fund as 1st Mortgagee, which means that the bank has to agree that the SMSF will get all its money back before the bank then gets any. good luck with the banks on this one!!!
Terry
Chris Batten is a lawyer and the strategy he suggests requires the property to be mortgage free before the super fund acquires units. So you would have other security to support the finance.
I’m not sure what Barbara Smith was suggesting,however, the super fund cannot have an interest in a property that has any sort of mortgage attached (even if the interest in held via a unit trust). Unfortunately there is currently no legal way for super funds to do this & the ATO are dedicating huge resources to the audit of these funds this year and the SMSF penalties are a lot more severe than for general tax law. Again, you need specialist advice for this sort of transaction.
JB
Thanks for your input, guys.
It looks like the odds are stacked against me.
If it came to a showdown in court between the ATO and me, I wonder who would win?
I could cite Chris Batten’s advice, but apparently the ATO has him on their radar, so it wouldn’t surprise me if they came up with some rule that says something like:
“anyone trying any funny business to get round the previous rule will be deemed to be committing an offence,” penalty 47.5% tax + fine etc.
Maybe there are some projects in life that it’s not worth trying to borrow for.
Sigh…[]
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I gave up too soon.
Because the area is so grey I’m going to apply for a private ruling from the ATO.
It’ll be cheaper than a consultation with a high profile lawyer/adviser/accountant, after which I would still need a private ruling, so what can I lose?
+ I’ll feel more secure afterwards.
I’ll let you know how it goes.
Beware of the private ruling if you are going to lodge it yourself. Once issued by the ATO it is binding on you even if you don’t agree with their logic. You also bring attention to yourself and my recommendation would be to pay for the advice. Personally I would suggest you leave your SMSF out of your property portfolio & use it to diversify into direct shares. Shares are great investments in a 15% tax environment with imp credits at 30%.
JB
JB, it’s about security of dollars, and if the SMSF is guaranteed that it will not lose any money, like in the situation I mentioned, apparently it is ok.
I’m not sure what Barbara Smith was suggesting,however, the super fund cannot have an interest in a property that has any sort of mortgage attached (even if the interest in held via a unit trust).
JB, I draw your attention to the Do It Yourself Superannuation Fund Manual written by Barbara Smith, Executive Director, Superannuation Australia Pty Ltd. (a wholly owned subsidiary of Taxpayers Australia Inc.) Section 6.400
‘6.400 Joint Investments
Tenants in Common
Investments can be made in real property as tenants in commo0n with any other person or entity, including a member or other related party of the fund.
This can be a useful alternative where the superannuation fund does not have sufficient available resources to make a desired investment.
Borrowing Restrictions
Borrowing restrictions prevent a fund (but not other titleholder) from charging assets. Whilst it is prudent for a trustee not to invest as a tenant in common where the related party intends to use its investment in the property as security against borrowings it is possible if the fund’s interest is appropriately protected. This could be achieved by obtaining the written agreement of the lender that the fund’s share of the proceeds of any forced sale would receive priority and are there not, indirectly, subject to any charge. (Superannuation Circular II.D.6)’
Mel
No lender can provide this sort of surety. I have researched this area a lot and have advice from the NTAA, the ATO & Deloittes advising that you would be breaching the borrowing provisions in SIS if the asset was charged in any way. I intend contacting Barbara Smith to clarify her position in this regard. Will let the forum know if my view changes. Remember, ATO are self-assessment so you can do it, but remember they will take cautious approach in an audit & disallow the strategy which puts the onus on the trustees to prove them wrong. Are you willing to take on this sort of uncertainty with your financial future ???
JB
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Picja1,
the reason I don’t want to go for a 2nd mortgage is because I want to be an active investor.
I want the property I own to make a positive difference in peoples’s lives. I want to be proud of what I own for more reasons than the fact that i’m earning x% from it.
The following gives some idea of where I’m heading.
TORONTO GLOBE AND MAIL
Friday, Dec. 5, 2003
Instant karma in a yoga home
Move over feng shui; devotees of Indian spiritualism have their own twist on building
By JANE GADD
UPDATED AT 10:52 PM EST Friday, Dec. 5, 2003
Yoga, the ancient Indian philosophy and health science, has flooded the North American commercial mainstream thanks to the buying power of middle-aged baby boomers retreating from hard-driving styles of exercise to gentler, more contemplative methods.
Today’s yoga enthusiast must have the right clothes made from the purest of natural fabrics, the right mat, the newest stretch band and balance-ball equipment, and attend all the latest fad classes. Roots Canada sponsored the recent Yoga Show and Conference in Toronto, peddling its line of stretchy gear and rubberized mats alongside mandala prints by Tibetan monks and books by the bearded father of transcendental meditation, His Holiness Maharishi Mahesh Yogi.
Now, this combination of ancient scriptural teachings and modern-day marketing methods is manifesting itself in the latest housing-design movement to migrate north to Canada from the United States.
It’s Maharishi Sthapatya Veda architecture, also known as Vastu architecture — an Indian spiritualist spin on the more commonly known Chinese building philosophy of feng shui.
At a Yoga Show seminar presented by U.S. architect Jon Lipman, a sprinkling of listeners ranging from the curious to the committed were urged to enhance the harmony and success of their lives by building homes that adhere to architectural principles set out in 6,000-year-old Sanskrit manuscripts under the guidance of his Maharishi-inspired construction company based in Fairfield, Iowa.
Maharishi Global Construction LLC has built hundreds of these houses in the United States, including a whole town adjacent to Fairfield that is the home of Mr. Lipman and other company leaders. MGC provided consulting services to $90-million (U.S.) worth of residential and commercial properties in 2002, compared with $13-million in 1999, according to The Wall Street Journal.
In Canada, the growth of Vastu architecture has been slower. But there are already a dozen of these homes scattered across the country — in Ontario, Quebec, Alberta and British Columbia — and plans for a dozen more on Salt Spring Island, B.C., according to MGC sales director Eloise Raymond.
“You should feel as centred in your home as in nature,” says Mr. Lipman, a veteran architect whose distinguished career included curating architectural collections at leading U.S. museums before he turned to Vastu architecture six years ago.
“There is a Sanskrit saying: As is the atom, so is the universe,” he tells his rapt audience. “Everything is cosmic. The organization is the same at all levels.”
Vastu architecture aims to design buildings in accordance with the organization of the universe, as set out in 6,000-year-old Vedic scriptures gathered and interpreted by the Maharishi.
“It’s not a style but a set of deep principles applied to houses of any style,” Mr. Lipman says in an interview. “The Maharishi has tried to assemble all the original texts, and restored the full body of knowledge.”
In Vastu architecture, the orientation of the house in relation to the sun, the stars and the Earth’s magnetic field is paramount.
The main entrance must face east or, second-best, north, to maximize positive influences from the rising sun, the moon and the planets. If the land slopes, it must slope to the east.
Nothing must obstruct the view of the rising sun.
The position and proportions of the home must be precise. A Veda architect calculates the exact position of the site in relation to true north, not the magnetic north shown by a compass.
The MGC website provides a link to the National Geophysical Data Centre so prospective builders can check the values of the Earth’s magnetic field at their particular latitude and longitude.
The rooms must be arranged in a specific way, around a central zone of silence called the brahmasthan, to optimize the beneficial energies, Vedic principles say.
For reasons that remain obscure in the literature provided, it is recommended that the dining room be placed to the south, where healthy digestion is said to be favoured, that a study be placed to the north, where the intellect is at its liveliest, and that the living room be to the west, where social life enjoys the most celestial support.
While Mr. Lipman acknowledges that feng shui and Vedic principles share a common root — knowledge of the Sanskrit scriptures apparently crossed the Himalayas thousands of years ago — he insists the Sthapatya Veda system is more scientific, while feng shui has become mixed up with superstitions.
Neurological studies have shown that the human brain functions differently depending on the direction a person is facing, he says.
Carol and Frank Haika, who have lived for three years in a Calgary home built by a Sthapatya Veda architect, eagerly endorse Mr. Lipman’s arguments.
Mr. Haika, an investment adviser, says the couple’s financial fortunes grew as soon as they began building the home, and they have continued to prosper despite the slump in the stock market.
“It could have been from making smart decisions,” Mr. Haika acknowledges in an interview from Calgary. But he believes the energies of the home provide him with “the support of nature,” promoting deep relaxation and a sense of well-being that promotes performance.
Carol Haika, a wellness consultant with a private health company, says the space of the home “really does influence health, happiness and harmony. We get what we want more easily.”
MGC estimates that building on Sthapatya Veda principles adds about 10 per cent to the regular cost of a new home.
That accounts for the enrolment and consulting fees, which are listed in loan applications as architectural fees.
It does not include the additional cost of using the all-natural materials recommended.
If Vastu architecture is done right — with all natural materials and lots of space and natural light — it’s going to be expensive, MGC’s sales director Eloise Raymond admits.
Since not everyone is in a position to have the best, MGC has begun to offer modular kits for building homes — prefabricated parts that can be delivered to the building site, she says.
It also provides a “rectification service” for people who just cannot leave the home they are living in, but wish to bring it closer to conformity with Vastu principles.
For example, the company might recommend sealing up entrances on the south side of the building, where negative energy can flow in, causing fear, conflict and suffering, she says.
If there is no other place to build an entrance, it might suggest building a portico to shield the home from these forces.
And if — like Toronto — a community has the misfortune to have a huge body of water to the south, the negative influence can be balanced by building fountains on the north side of buildings.
I think I’ll start a new thread with this lot.
Anyway, another point of the above post is that I have the ambition but not yet the capital or the borrowing capacity to put these plans into action. Hence my enquiries into how to access super.
Second mortgages are high risk for several reasons.
Smart things to do are :
1. It may possibly be a different matter if one were able to spread out one’s money over a large number of mortgages thus spreading the risk.
2. Limit a loan to a maximum of 75% of the value.
3. Be careful about valuations. I understand that in Queensland more than a hundred valuers are in trouble with the law because they issued bodgie valuations.
Whilst a broker may sometimes (very seldom) be able to come up with a gilt edged opportunity I would nevertheless be very very wary of brokers.
Lenders offer 2nd mortgages up to 85%LVR
St George is a lender that lends for 2nd mortgages.
It sounds like to me, you are one of these people that make comments to areas that you have no idea about, just a general view! Also, sounds like you’ve been bitten by a broker.
As for valuers, well that subject could go on for hours. How many are in the same boat in other states?
What facts do have to back up your claims!
I can provide all the facts you want in regards to 1st & 2nd mortgages. Whether they are through banks, govt accredited lenders, accounts,solicitors etc..
And my associate’s accountant and financial advisor/planner, will only be to happy to answer any questions.
I’ve got the goods, bring it on!