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Poor pension documentation can be costly

Having poorly prepared documentation regarding pensions can result in significant tax liabilities for SMSFs, a specialist sector law firm has warned.

The crux of the matter centres on the commencement date of the pension, which can only be determined definitively if the correct and proper documentation is put in place.

Without written evidence as to when a pension commenced, the ATO can rule no pension exists within an SMSF and impose accumulation-phase tax rates on the fund.

“We continue to be surprised by the poor quality of documentation relating to SMSF pensions, including no or defective pension applications and agreements, no or defective trustee minutes and even trust deeds that don’t empower the trustee to pay account-based or transition-to-retirement pensions,” Townsends Lawyers principal Peter Townsend said.

The situation of having poor pension documentation often occurred when advisers and trustees engaged service providers offering lower administration costs, according to the legal firm.

It recommended individuals should always begin by checking that the SMSF trust deed allowed the establishment of a pension.

In addition, Townsends Lawyers suggested the pension documents be prepared before the commencement of the pension, with the opening balance to be confirmed at a later date if needed.

In a separate SMSF tax issue, the law firm has cautioned advisers and trustees to be aware the ATO has set a 30 June 2016 deadline for non-commercial limited recourse borrowing arrangements (LRBA) to either be restructured to incorporate commercial terms or wound up.

In the lead up to the deadline, the ATO will not be actively seeking out SMSFs with these types of arrangements.

However, Townsends pointed out if the regulator was investigating an SMSF for compliance matters not related to LRBAs, it would examine the fund in question to see if any non-commercial LRBAs were currently in place or had been completed.

If evidence is found these borrowing structures do exist, any income arising from them will be treated as non-arm’s-length income and will be taxed at the top marginal tax rate.

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