When an SMSF purchases a property via a Limited Recourse Borrowing Arrangement (LRBA—i.e. bare trust), the deposit must be paid directly from the SMSF's bank account.
Having individual members pay the deposit and later reimburse them is not recommended and can lead to compliance issues.
Importance of SMSF Paying the Deposit
Future double-stamp duty
The source of the deposit is critical for duty efficiency of the holding trust arrangement[2].
For the SMSF trustee to be considered the real purchaser, they must provide all purchase monies, including the deposit[2]. This is important for potential duty concessions when transferring the property from the holding trustee to the SMSF trustee in the future.
Evidence for Future Transfers
Retaining evidence that the SMSF trustee provided all purchase monies is best practice[2]. This evidence may be needed years later when transferring the asset from the holding trustee to the SMSF trustee after repaying the loan.
Avoiding Additional Duty Liability
If the deposit is not paid from the SMSF's bank account, there's a risk of additional duty liability when transferring the asset from the holding trustee to the SMSF trustee in the future[2].
Lender Requirements for Finance Approval
Some lenders or their lawyers may object to deposits not paid by the SMSF, potentially delaying or jeopardizing the loan[2].
Consequences of Non-Compliance
If individual members instead of the SMSF pays the deposit:
If it exceeds 5% of the fund's total value, it may be considered an in-house asset, potentially breaching the in-house asset rule [1].
The arrangement may not qualify for duty concessions in the future[2].
There could be issues with lenders or delays in loan approval[2].
Possible Rectification Options
If individual members have already paid the deposit, some potential rectification options include:
Arranging for the vendor to refund the deposit and have it re-paid from the SMSF's bank account[2].
Recording the deposit as a contribution to the SMSF on behalf of the members, subject to contribution caps[2].
Reimbursing the members who paid the deposit from the SMSF's bank account[2].
Please note that these rectification options may have their own implications and should be carefully considered with professional advice.
In conclusion, it is strongly recommended that the SMSF pays the deposit directly from its bank account to ensure compliance with superannuation laws and to avoid potential issues with duty efficiency and lender requirements.
References: