SMSF, related party, business property, leasehold improvements

Discussion in 'Accounting & Tax' started by Hano, 16th Sep, 2016.

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  1. Hano

    Hano New Member

    16th Sep, 2016
    I am looking to purchase the building that we have leased for the past 5 years using an SMSF.
    There are 3 years remaining on the current a lease. I have arranged finance with a 70% LVR, using a LRBA.

    The property is a 2500 sq-m freestanding industrial / storage facility in western Sydney, with a 600sqm industrial/storage facility on site.

    The property has development potential, but I understand that the SMSF cannot borrow to make improvements.

    I have a number of questions.

    1. Can a related party tenant sublet, a portion of a freestanding industrial/storage facility, also to be used as an industrial/storage facility, if the owner maintains borrowing under a LRBA? Does this change the single acquirable asset test?

    2. Are leasehold improvements by the tenant, such as office fit-out to an industrial facility, allowed where the SMSF owner maintains borrowing under a LRBA?

    3. If a tenant makes significant leasehold improvements to a freestanding industrial/storage facility, including an extension of the factory & storage area, does this change the single acquirable asset test if the nature the complex is maintained as an industrial/storage facility.

    Basically, the tenant (my business) would look at subletting an unused portion of the land, to increase profit. If this was successful, we (the business) would look to extend the current factory to sublet at a higher rate. But only if the business could secure an arm's length, long-term lease from the SMSF landlord.

    4. If at the expiry of the lease, the ownership of the leasehold improvement, office fit-out and/or extension of the facility, reverts back to the SMSF owner, without payment or consideration, does this change the nature of the single acquirable asset if the SMSF owner still maintains borrowing under a LRBA? What are the in-house asset implications of this?

    5. Does the identity of the tenant making the alterations or additions affect the result of a different asset test?

    6. Do any of the above answers change if the tenant is a related party or not?

    7. What are the implications if any, if the SMSF owner of a property, with leasehold improvements made by a related party tenant, sells the property with the lease in place, at market value, if the tenant is a still a related party.

    8. What if a related party tenant, who has made leasehold improvement, sells the business and assigns the lease, to a non-related entity, and some time later the lease expires, and the ownership of leasehold improvement reverts to the SMSF property owner, without payment or consideration, would this be considered an in-house asset acquisition?

    Thanks in advance for your consideration.
  2. sanj

    sanj Well-Known Member

    18th Jun, 2015
    9. When dealing with a 7 figure sum and faced with potentially a really lucrative option if handled correctly or a major cockup if not, would asking very specific questions on an internet forum or paying for highly competebt advice be likely to yield better results?
  3. Scott No Mates

    Scott No Mates Well-Known Member

    18th Jun, 2015
    Sydney or NSW or Australia
    An smsf can lease commercial property to a related party - a member cannot get a benefit from the transaction.

    If the tenant fits out or makes improvementsto the premisws it is handled under the lease, vary the lease to allow the works (with lessor consent), buy back/surrender of improvements for a nominal sum etc should all be legitimate as the tenant is paying and fund benefitting/not borrowing.

    @sanj - why pay if you can get dodgy advice for free? ;)
    Colin Rice likes this.
  4. Terry_w

    Terry_w Structuring Lawyer and Finance Broker - all states Business Member

    18th Jun, 2015
    There is a tax ruling which covers all these questions - best to have a read of those 70 odd pages and then go and pay for some legal advice.
    Colin Rice likes this.