Can I sell SMSF property to my son or daughter?
Absolutely. There is no prohibition on who a SMSF trustee can sell an SMSF property to. However, there are some rules to consider before your SMSF sells property to a related party which include your son or daughter. A residential property which generally cannot be acquired from a related party can be sold to a related party.
Interestingly, your son or daughter can also include an adopted child, a stepchild, an ex-nuptial child, your spouse’s child or a child within the meaning of the Family Law Act 1975.
Of particular concern are the arm’s length rules under the superannuation laws (SISA) and the taxation laws. A transaction involving a related party is scrutinised by SMSF auditors and the Australian Taxation Office (ATO).
Arm’s length means the transaction between two parties do not favour either party which is characterised by independent parties who act in their own self-interest and are not influenced by the other party. Auditors get very concerned when a SMSF sells a property to a member’s child and seek independent evidence of the market value of the property being sold.
Under SISA the concern is when a related party transaction is less favourable to an SMSF than the other party. Selling SMSF property to your child well below market value would breach the SISA rules under section 109. However, on the flip side when a SMSF sells property for an inflated market value the sole purpose test could be breached and under the taxation laws the transaction is viewed under the non-arms length income provisions (NALI).
Per the ATO website “Any NALI forms part of the non-arm’s length component (NALC) of the SMSF’s taxable income which is taxed at the highest marginal tax rate” which is currently 45%. Calculating the NALC can be complicated so please seek advice from your SMSF Specialist or Tax Agent.
There is a scheme resulting in more income being derived by Fred’s SMSF than would have been expected under the transaction. NALI applies to $500,000 net capital gain and is included as part of the NALC in the fund’s tax return.
Hint – Obtain an independent market valuation from a qualified valuer when selling SMSF property to your child. This type of valuation is very unlikely to be queried by your SMSF auditor or the ATO.
Other Considerations
Review the fund’s trust deed and governing rules to ensure there are no limitations placed on this type of transaction. Of course, always review and update the fund’s investment strategy if required. Selling SMSF property should be part of the fund’s investment strategy ensuring the transaction is made in the best interest of the members to provide for their retirement.
Your SMSF needs to consider the capital gains tax consequences for the disposal of the property. Has the property been held longer than 12 months to obtain the 1/3 discount? Is the fund in pension mode which can potentially save tax on the disposal? Will a capital loss be incurred and if so, can the SMSF utilise it to save tax on other capital gains?
Consider how your SMSF will reinvest the consideration received from the disposal of the property.
Stamp duty is always an important factor to consider. Stamp duty is paid by the purchaser, but your son or daughter will be impacted by the specific state or territory legislation where the property is situated.