<a href="https://www.apartments.com.au/buildings/aura-by-aqualand-north-sydney-168-walker-street-north-sydney-nsw-2060">AURA</a>&nbsp;doesn’t just rise over North Sydney, it redefines it. Now in its final release, <a href="https://www.apartments.com.au/developers/aqualand-australia">Aqualand</a>’s $1 billion architectural statement is not just complete, but already reshaping the way people live, connect and dine in this rapidly evolving harbourside CBD.

Positioned beside the new Victoria Cross Metro Station and boasting panoramic views across Sydney Harbour, Aura’s 386 residences crown a mixed-use precinct designed with unapologetic ambition. The curvaceous sandstone-inspired form by <a href="https://www.apartments.com.au/architects/woods-bagot">Woods Bagot</a>, paired with <a href="https://www.apartments.com.au/interior-designers/richards-stanisich">Richard Stanisich</a>’s understated interiors, sets a design tone that’s both monumental and intimate.

At its peak, literally, the two penthouses so spectacular they command their own names; La Davina and Il Magnate. The residents are spread across the&nbsp;entire top floor, offering what many consider the most refined residences ever built in North Sydney. Designed by Richard and Kirsten Stanisich, each four-bedroom home is meticulously crafted to evoke calm, space, and permanence.&nbsp;

<iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share" allowfullscreen="" frameborder="0" height="315" referrerpolicy="strict-origin-when-cross-origin" src="https://www.youtube.com/embed/VB70993aG-I?si=adRBlXQliYmYvaSz" title="YouTube video player" width="560"></iframe>

The kitchens are fully wrapped in natural stone, with integrated Gaggenau appliances, Sub-Zero fridges, concealed sculleries, and even a zip hydro tap delivering boiling, chilled and sparkling water on demand. A linear stone fireplace anchors the open-plan living space, dividing lounge and dining zones with quiet sophistication.&nbsp;

[smartcode_project:default project_id=30959 project_image_fid=292861]

The master suite, meanwhile, feels more like a private retreat, complete with a custom stone makeup vanity, walk-through dressing area, and spa-inspired ensuite with heated stone floors, a freestanding Villeroy &amp; Boch tub, and timber veneer joinery throughout.

Kirsten Stanisich, Director of Richards Stanisich, said the penthouses offer incredible scale reflective of a single residence.&nbsp;

“We sought inspiration for these remarkable residences from the classic top-floor Parisian apartment," Stanisich said.

"We looked at what made these French apartments so elegant and found it really came down to their scale. It was ultimately this generosity of space that we used for the AURA penthouses, where we’ve designed considered rooms with deep large-scale proportions."

[smartcode_project:default project_id=30959 project_image_fid=310337]

Everyday living at Aura feels no less elevated. A dedicated 24-hour concierge, Technogym fitness centre, sky dining terraces, and a resort-style pool serve a lifestyle designed to rival luxury hotels.

At street level, Aqualand’s own hospitality arm, Etymon Projects, curates a precinct of LA-style bistros, Japanese fine dining, and local wine bars, all seamlessly integrated into the building’s sculptural podium.

[smartcode_project:default project_id=30959 project_image_fid=310337]

This final chapter, aptly dubbed The Finale, is more than a sales phase, it’s an invitation to two of the most exclusive apartments ever to be built in North Sydney.

With limited residences remaining, buyers can access curated incentives including stamp duty rebates, rental guarantees, legal fee coverage, and even $20,000 towards dining within the precinct.

From generous one-bedders to The Icons, two singular penthouses priced well into prestige territory, Aura’s offerings reflect a scale and calibre rarely seen in urban Sydney. And with move-in now immediate, this is no longer a promise of future luxury. It’s happening.

[smartcode_project_cta:default project_id=30959]

Staff Writer

Aqualand unveils penthouse collection at AURA By Aqualand in North Sydney

There’s no sign of the development wave that began several years ago slowing along Old Burleigh Road.

Around 10 new apartment developments are either underway or preparing to launch along the 800-metre strip stretching from the southern edge of Surfers Paradise towards the heart of Broadbeach, collectively adding just shy of 1,000 new apartments to the beachfront corridor.

The latest plans propose a further 30 apartments to replace an original six-unit walk-up on a 658 sqm site at <a href="https://www.apartments.com.au/new-apartments/20a-old-burleigh-road-surfers-paradise-qld-4217">20A Old Burleigh Road</a>. The 14-storey building has been designed by Ferro Chow Architecture, which recently joined the Elevation Architecture Group.

The developer behind the project is Geoffrey Booth, whose Future Liv In has focused on delivering rental accommodation across regional Australia.

<img alt="Old Burleigh Road" data-entity-type="file" data-entity-uuid="99d393e7-d404-43bc-80cb-6255c39b83d6" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202026-01-05%20at%2012.28.44%E2%80%AFPM.png?VersionId=ZFT8F3mOny4M4ut.kFF3woC9WH9oR5gT" />

The Old Burleigh Road development will comprise 18 two-bedroom apartments, 10 three-bedroom apartments, and a single four-bedroom residence occupying the entirety of level 12. Above, the building will be crowned by a two-storey penthouse with its own private lift, several multi-purpose rooms, and two rooftop terraces — one featuring a puppy lawn and spa, the other offering a private swimming pool, sunset deck, and built-in barbecue.

Resident amenities will be located on the second level and include a pool with adjoining spa, cabana, and pool deck, along with an indoor residents’ lounge featuring a bar and an alfresco barbecue kitchen.

In the architectural statement submitted by Elevation Architecture, the project is referred to as “UMI”, which the firm says has been “inspired by the majestic hinterlands and shaped by the coastal climate”.

“It is an exemplar of how community living can still feel at one with nature, breathable, and deeply connected in place,” the architects noted.

They added that the site benefits from established building separation to adjoining towers, helping to maintain privacy, sunlight, and residential amenity, while still offering direct beach access within an urban setting.

“Drawing inspiration from the Gold Coast hinterlands and the region’s natural landscape, the podium and tower detail highlights the contrasting elements of treetop green and cliff-face peach. The vibrant texture and materiality shaped by time has a richness in depth and character.”

<img alt="Old Burleigh Road" data-entity-type="file" data-entity-uuid="b3d6c923-a0ab-4d74-86da-177313447e8e" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202026-01-05%20at%2012.28.38%E2%80%AFPM.png?VersionId=i2fygmoVQM6hWpbATTAW_yTitoMTrnI1" />

Old Burleigh Road has become a hotspot for developers, with the three-tower Jewel development kickstarting a wave of projects up and down the strip when it was completed in 2020.

Currently under construction and approaching completion is <a href="https://www.apartments.com.au/new-apartments/faro-broadbeach-123-old-burleigh-road-broadbeach-qld-4218">FARO Broadbeach</a> by 5Point and Bottega, 21 large-scale half- and full-floor apartments. 5Point is also behind the recently launched <a href="https://www.apartments.com.au/new-apartments/lumara-108-old-burleigh-road-broadbeach-qld-4218">Lumara</a>, another 37 apartments to add to the pipeline.

Luxury builder GRAYA is progressing construction on <a href="https://www.apartments.com.au/new-apartments/enclave-by-graya-118-old-burleigh-road-broadbeach-qld-4218">Enclave</a>, its first Gold Coast tower, while Polycell remains the most active developer on the street. They are preparing to launch <a href="https://www.apartments.com.au/new-apartments/sandpiper-broadbeach-155-old-burleigh-road-broadbeach-qld-4218">Sandpiper</a>, a 50-storey redevelopment of the former Sandpiper Holiday Resort that will deliver around 200 apartments alongside extensive resident amenity. The group also has another 130-apartment project approved nearby, as does <a href="https://www.apartments.com.au/news/qld/dvb-approved-for-second-broadbeach-apartment-development">Dean Gallagher’s DVB Projects</a>.

Joel Robinson

First look: Old Burleigh Road apartment development wave continues

Sunshine Coast developer Habitat Development Group continues to position itself as one of the region’s largest new apartment developers.

Its latest project is in Maroochydore, where it is currently delivering <a href="https://www.apartments.com.au/new-apartments/the-millwell-2-millwell-road-east-maroochydore-qld-4558">The Millwell</a>. Adjacent to the new 53-hectare Maroochydore City Centre project, Habitat is planning a further 180 apartments on a 3,468 sqm site at <a href="https://www.apartments.com.au/new-apartments/132-136-aerodrome-road-maroochydore-qld-4558">132–136 Aerodrome Road</a>. The site was purchased with approval for a smaller 13-storey, 103-unit building.

Habitat will demolish the two existing retail centres, currently home to the Salvation Army Family Store and Neighbours Aid, and replace them with an 18-storey building featuring the significant rooftop amenities that have become a hallmark of Habitat developments in recent years. The rooftop will include both indoor and outdoor spaces, anchored by an infinity swimming pool.

<img alt="Maroochydore" data-entity-type="file" data-entity-uuid="ad434d07-666b-4614-b33e-530ad6a2d261" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202026-01-05%20at%2010.12.33%E2%80%AFAM.png?VersionId=7pyLsPWKQuwv0us3_v.9DmbzEc2VZe9Z" />

There will be a mix of one- to four-bedroom apartments.

The Development Assessment Report, submitted to the Sunshine Coast Council, says the proposal&nbsp;is not speculative, but a response to both zoning intent and demonstrated housing need.

“The proposed development represents an appropriate and logical intensification of the site, consistent with the planning framework and the intended urban outcomes for the locality.”

Across the Sunshine Coast, councils are increasingly scrutinising not just height or yield, but whether new projects genuinely align with the long-term structure plans underpinning growth corridors. The&nbsp;ASTP Planning Report&nbsp;reinforces the approach, noting that the project has been shaped around site responsiveness rather than generic typology.

“The development has been designed to respond to the physical constraints and opportunities of the site, while delivering a high-quality residential outcome that integrates with the existing and emerging urban context.”

<img alt="Habitat" data-entity-type="file" data-entity-uuid="3a03fc54-4ca5-4868-88d0-eeced70604e2" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202026-01-05%20at%2010.12.28%E2%80%AFAM.png?VersionId=1pkK3lJrrZjkghTLBReM2zatcas4Nc4B" />

In mid-2025, Habitat, a developer that also builds its own projects, commenced construction on The Millwell, located just over one kilometre from the new proposal. The Millwell will comprise more than 200 apartments across two eight-storey buildings.

Habitat also has two projects on Lake Kawana in Birtinya: <a href="https://www.apartments.com.au/new-apartments/st-clair-birtinya-930-931-waterside-retreat-birtinya-qld-4575">St Clair</a>, a 200-unit, two-building development launched last year and set to welcome buyers this year; and Esperance, a 175-apartment project currently progressing through the development approval process.

First look: Habitat continues to bolster Sunshine Coast apartment pipeline with Maroochydore development plans

John Camilleri, the breeder of legendary racehorse Winx, is set to deliver a landmark two-tower beachfront development that would redefine the Surfers Paradise skyline.

Camilleri, who spent around $100 million acquiring development sites across the Gold Coast in 2025, has lodged plans for two new towers on the dress-circle stretch of Garfield Terrace, just two days before Christmas.

In assembling the site, Camilleri's Celestino Developments has effectively acquired the 71 Garfield project by Iris Capital and AALTO by Weiya Holdings, creating an unrivalled <a href="https://www.apartments.com.au/new-apartments/63-79-garfield-terrace-surfers-paradise-qld-4217">4,000 sqm beachfront holding along Garfield Terrace</a>.

The proposal comprises two residential towers of 55 and 48 storeys, linked by a dramatic skybridge which will home “exclusive VIP and wellness amenities.”

In total, the development would deliver 275 two-, three- and four-bedroom apartments across the two towers, rising above a shared landscaped podium that incorporates a central green space and a beachfront swimming pool stretching more than 90 metres.

<img alt="DBI" data-entity-type="file" data-entity-uuid="097900f3-6bef-4919-b168-b08f2f762876" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202025-12-30%20at%209.37.58%E2%80%AFAM.png?VersionId=et0SpmcvaPPVrexI_zWi46BVFtZBxAzx" />

Architecture firm DBI, in documents submitted to Gold Coast City Council, said the project at 63–79 Garfield Terrace would “establish a new benchmark for beachfront residential living on the Gold Coast.”

"The project occupies a rare, uninterrupted oceanfront site and has been shaped by a design philosophy that merges architectural elegance with environmental responsiveness and a carefully curated lifestyle experience. Together, the 48-storey North Tower and 55-storey South Tower form a distinctive twin-tower composition whose dynamic silhouette will make a significant contribution to the Surfers Paradise skyline."

DBI said the architectural language draws inspiration from the fluidity and movement of the coastal landscape.

"Each tower is defined by organic, curving forms and continuous balcony ribbons that wrap the buildings, providing deep shading, enhancing environmental performance, and reinforcing the rhythmic, sculptural expression of the façade. These balcony forms also reduce the apparent mass of the towers while maintaining strong visual continuity from podium to summit. Sculpted reflective downturns run along the western spine of both towers, shifting and lifting as they extend upwards to frame service zones and open eastward to maximise ocean views."

<img alt="Garfield" data-entity-type="file" data-entity-uuid="a2a00ce3-a0e9-45d6-b4b5-b7baed592ac5" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202025-12-30%20at%209.53.40%E2%80%AFAM.png?VersionId=DnruWV1dhLrtXOeElwekyd7vPq2gw55t" />

The project’s most striking feature is the skybridge at level 45, which will house executive lounges, formal dining spaces, wellness facilities and panoramic ocean-facing views.

“The skybridge enhances the identity of the development, promotes social interaction, and delivers a lifestyle experience not found elsewhere on the Gold Coast,” DBI added.

The podium will host an extensive suite of recreational amenities, including resident lounges, private dining rooms, a large open green lawn, and the signature 90-metre pool stretching along the beachfront. The pool is divided into lap, lounge and children’s zones.

The southern end of the podium will accommodate additional wellness facilities, including a gymnasium, plunge pools, treatment rooms and a dedicated yoga lawn.

<img alt="Garfield" data-entity-type="file" data-entity-uuid="ee1b4f25-231f-4804-83b1-a573a1481962" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202025-12-30%20at%209.55.47%E2%80%AFAM.png?VersionId=zObzIA3D5w7EwqPsHjr2pKrA4vbB28zL" />

There will be 127 apartments in the North Tower and 148 in the South Tower, including multiple penthouses, while the Enderley Avenue and Oceanway frontages will be activated by a series of food and beverage tenancies.

Camilleri emerged as the most active site acquirer on the Gold Coast in 2025. He spent just over $30 million acquiring Pacific Point, a 10-level Surfers Paradise apartment block and an adjoining three-level duplex, from fellow racing identity and Aquis billionaire Tony Fung. Plans are now underway for a 93-apartment, 40-storey tower on the 1,682 sqm site.

He also paid $53.65 million for the 1,500 sqm Garfield Terrace site previously marketed as AALTO by Weiya Holdings, before acquiring the adjoining parcel from hotel billionaire Sam Arnaout’s Iris Capital, the developer behind V&amp;A Broadbeach.

First look exclusive: Billionaire Winx breeder’s bold two-tower Surfers Paradise play with 45th-storey skybridge

The Melbourne-based HLA Group is the latest developer to expand into South East Queensland, lodging plans for a unique mixed-use short-term accomodation and apartment building in Taringa, with the building design inspired by the Glasswing Butterfly.

The development application for 10 Morrow Street seeks approval for a total of 232 dwellings, comprising 116 residential apartments and 116 short-stay accommodation units. The build-to-sell residential component is made up of 31 one-bedroom apartments, 67 two-bedroom apartments, 17 three-bedroom apartments, and a single four-bedroom apartment, offering a diverse mix aimed at singles, couples, families, and downsizers.

<img alt="Taringa" data-entity-type="file" data-entity-uuid="33913cd4-9839-4456-b325-d35b3f8b4694" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202025-12-23%20at%203.40.26%E2%80%AFPM.png?VersionId=sLvc7jUrYzDwqPDZBPrXTosKHDSp.qrt" />

Designed by Ellivo Architects, the tower takes strong inspiration from nature, with the architectural language driven by one of Queensland’s most delicate species. As described in the planning documents submitted to Brisbane City Council, Ellivo Architects state the design is “inspired by the elegance of the Glasswing butterfly," and mirrors the graceful sweep of its wings, a form that feels light, fluid, and alive.

“Lush subtropical greenery is throughtfull woven throughout, transforming the building into a sanctuary in the heart of the city.”

The proposal positions the building as more than a conventional residential tower, with Ellivo Architects describing 10 Morrow Street as “an urban oasis that blends short term accomodation with residential living. A destination for rest, relaxation, and renewal.”

<img alt="Taringa" data-entity-type="file" data-entity-uuid="84e9a0ff-464e-4973-bffe-5d5a8fe9f087" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202025-12-23%20at%203.40.32%E2%80%AFPM.png?VersionId=dhX9eVgUaQE2TvCzJPhF8N8_hzYSKpyK" />

Formally, the building’s massing and floorplate are directly shaped by its butterfly inspiration. Ellivo explain that, “adopting the wings of the Glasswing Butterfly, the tower's plan is divided into four distinct quadrants, each shaped to mirror the wing's segmented geometry and taking the slender ‘veins’ up the facade of the tower.”

"This approach results in a sculpted tower form with articulated façades and a strong vertical expression."

<img alt="Taringa" data-entity-type="file" data-entity-uuid="5947011d-ff6c-4a57-bdc1-9072a472a79c" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Screenshot%202025-12-23%20at%203.40.29%E2%80%AFPM.png?VersionId=nnGqd4WCZM8AOJZY.c3u49BO4LurKRhb" />

The Assessment Report by Human Habitats said the 19-storey tower capitalises on its strategic connectivity and prominence at the entrance of Taringa Village and adjoining the Taringa Station.

"The proposal offers a significant revitalisation of the subject site that integrates architectural excellence, innovation, and sustainable design to directly address long-standing connectivity and safety challenges, housing supply , and diversity together with enhanced streetscape activation and convenient access to major transport corridors."

HLA Group Australia is registered to South Yarra and is currently delivering Adamson No.5, just 15 luxury apartments that start from around $2 million.&nbsp;

The Butterfly Effect: Glasswing butterfly inspires Taringa apartment development

The City of Sydney&rsquo;s Affordable Housing Program, endorsed by the Minister for Planning, Rob Stokes, introduces a charge for the delivery new homes that will now apply across Central Sydney and much of the City of Sydney local government area.

Minister Stokes announced last week the making of a new plan that will push up the price of new housing in the City of Sydney.

The NSW Government has signed off on a new tax of up to 3% on the production of new homes in the City of Sydney Council area.

[smartcode_project:default project_id=7317 project_image_fid=79239]

Urban Taskforce CEO Tom Forrest said, &quot;both the Minister and Clover Moore are well meaning, but you don&rsquo;t create affordable housing by adding additional charges to the production of new homes.&quot;

&quot;The NSW Productivity Commission recognised this conundrum in their review of infrastructure fees and charges. This change goes in the very opposite direction. This is a new tax on new homes to be paid by new home buyers.&nbsp;Prices will go up.&quot;

&quot;Housing affordability is one of the biggest issues facing governments at all levels. But the NSW Government has simply done what the Mayor of Sydney wants &ndash; no questions asked &ndash; no economic analysis applied.&quot;

&quot;The key to housing affordability is more supply &ndash; not extra taxes on those who are trying to solve the affordability problem by creating more homes.&quot;

&quot;It is high-time the penny dropped with the NSW Government &ndash; it is the drought of planning approvals that has caused this housing affordability crisis and urgent policy reform is needed.&quot;

&quot;Unfortunately, while well meaning, today&rsquo;s announcement is a step in the wrong direction.&quot;

&quot;Clover Moore is no-doubt popular &ndash; but we are in trouble if we take her advice on housing affordability!&quot;

The NSW Government has signed off on a new tax of up to 3% on the production of new homes in the City of Sydney Council area

jordan_55689

New production tax to push up price of new housing in City of Sydney

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I was interviewed for a great story in one of the property magazines, the article was called Keep and Reap and it examines the pros and cons of holding onto property after you finish developing it.
One of the biggest things to consider before you start a development is entry and particularly exit costs - if you are developing to sell.
Around the same time I received a call I had from a guy called Dave.  He said ‘Hi Jo, can you help me with a dual occupancy project’.  To that I replied...’sure Dave, we’d love to. Tell me a bit about your strategy and what you are hoping to achieve from a property development’. 
'Well, my wife and I want to turn over a few developments, you know...complete one, sell and then use the profits to go again. Our aim is to use the proceeds to pay down the mortgage on our principal place of residence and keep investing’.
Dave certainly has a very good plan. As property development project managers, we are not qualified to give accounting or financial advice, but what I do like to check with anyone making this kind of enquiry is that they understand what selling or exit costs are involved.
Dave said he understood there’ll be agent’s selling commission and marketing costs to sell the new villas, we might have to pay some Capital Gains Tax and that’s it I think’. He said.   
My reply...’Are you sure Dave?’
If you take a look at the exit costs, then you may think twice about selling on completion, especially if it’s a small development like a dual occupancy.
In the Hunter Region of NSW where we manage developments for our clients, we can typically create around one hundred thousand dollars in equity on a dual occ project within twelve months. This sounds like a lot of equity to create and it is...if you are holding the properties you’ve built.
By holding on completion you'll not only get the benefits of depreciation and higher than average rental returns (everyone loves to rent a brand new property) but some clients choose to refinance and by doing this they can access some of the equity that’s been created through the development process.
But, if you are looking to sell on completion, then there is a whole list of costs you need to consider.
The big one is GST and as I explain this to Dave, I highly recommend he checks this out closely with his accountant.  GST is applicable when you sell new property, so Dave would need to ensure he pays 10% of his selling cost to the government. If he is not registered for GST, he can't claim back the GST he's paid over the life of the development so he's essentially losing 10% on his sales. However, if he holds the properties for five years, they are no longer deemed new and no GST is applicable.
Finance costs are another cost to consider. Dave needs to check with his lender what fees and charges may be applicable when he sells, these may include a prepayment fee, settlement fee, early exit fee or Government mortgage discharge fees.
There will be legal fees for your solicitor to prepare Sales Contracts and manage the conveyancing for you.
In some instances, Land Tax may also be payable on a property that is being sold.
Then of course, the sales agent's commission, marketing costs and perhaps auctioneer costs.
Also consider the holding costs. During the sales process you probably won't rent the villas and they'll be sitting empty on a fully drawn construction loan.
One of the advantages to holding and renting the properties on completion is that the interest you pay during the development process is tax deductible. However, if your intention is to sell on completion then you lose this important deduction during construction but also during the selling period.
I recommended Dave have a meeting with his accountant to make sure he understood the implications of selling.  A few weeks later, he called to tell me he's switched strategy and wanted to hold onto his properties. One of his reasons was to take advantage of the higher depreciation benefits and he wanted to build a property portfolio. His accountant showed him just how much income tax he could save himself as he was in a high tax bracket.
It wasn't long before we had found him a great site in Newcastle with a potential gross yield of 7%. This strong yield will make it easier for Dave to hold and continue on his property investment journey.
By going through the exercise of weighing up the pros and cons of holding, it helped Dave realise that if you are going to the trouble to develop property in the right location, you may as well hold to reap the immediate and future rewards. 
 
Jo Chivers is chief executive officer of property development project managers <a href="https://www.propertybloom.com.au/about" target="_blank">Property Bloom</a>.
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jochivers-wq5Bp59R5a

Is it really worth selling on completion? Jo Chivers

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GUEST OBSERVATION
Self-managed superannuation funds (SMSFs) are the fastest growing sector of the superannuation industry, <a href="https://www.ato.gov.au/About-ATO/Research-and-statistics/In-detail/Super-statistics/SMSF/Self-managed-super-funds--A-statistical-overview-2010-11/?page=4#Growth_of_SMSF_sector" target="_blank">spiking</a> by 33% between 2008 and 2012, putting them in the sights of both the super industry and the Australian Taxation Office.
From July the ATO will be able to levy individual <a href="https://www.ato.gov.au/Super/Self-managed-super-funds/In-detail/News/SMSF-News/SMSF-News---edition-29/?page=2#Be_prepared_for_new_penalty_powers">fines</a> of up to A$10,200 on fund trustees who breach superannuation law, a step up from the previous environment where breaches could only result in making a fund “non-compliant”, or a referral to a court for penalties.
But many superannuation industry representatives want more regulation of self-managed super funds, with calls to the current financial system inquiry ranging from <a href="https://www.propertyobserver.com.au/https://www.financialstandard.com.au/news/view/39283887" target="_blank">regulating the funds as a financial product</a>, to <a href="https://www.propertyobserver.com.au/https://www.financialstandard.com.au/news/view/39104282">forcing</a> fund trustees to use a financial planner when the fund borrows money to invest in property.
The current benefits of SMSFs
SMSFs are perceived as giving tax advantages to their members, but they are taxed at the same (concessional) rates as other superannuation funds, and must comply with similar regulatory requirements: the main technical differences are in the administration of the fund, and the control that the member/trustees of an SMSF have in devising an investment strategy. The tax advantages that members of SMSFs do obtain are largely through the characteristics of the structure and the profile of SMSF members.
However there are some regulations that apply specifically to SMSFs; and others that in practice are more relevant to SMSFs than other types of superannuation funds.
A SMSF is a superannuation fund that has fewer than five members, and these members are also the <a href="https://www.austlii.edu.au/au/legis/cth/consol_act/sia1993473/s17a" target="_blank">trustees</a> of the fund. This gives the member/trustees the flexibility to devise and control an investment strategy that meets the needs of its members, as required.
One of the key reasons that many members of SMSFs give for choosing an SMSF as an investment vehicle is the level of control it gives them over their investments. However this places a high level of obligation on the trustees, and also exposes the members of the SMSF to risk which the trustees must manage.
SMSFs are not eligible for financial assistance where the fund has suffered loss due to fraud or theft, and do not have access to the Superannuation Complaints Tribunal to resolve disputes.
Funds must already pass the sole purpose test
All superannuation funds are required to meet the sole purpose test, which requires that the purpose of a superannuation fund must be to provide benefits to members in retirement and, in the event of their death, their dependants.
The regulatory framework for all superannuation funds is designed to support this core purpose, but SMSFs are particularly impacted: for example the law prohibits a fund from intentionally acquiring an asset from a related party, or loans or other financial assistance to the members of a fund.
But there is room for bias…
There are long-standing exclusions from the non arms-length rules that allow a SMSF to pay market value to purchase business real property from or lease it to a related party. This allows a person establishing a SMSF to transfer business premises to their superannuation fund and lease the property back from the superannuation fund, a strategy frequently used by business owners to provide an income stream to the fund.
One of the issues around SMSFs is ensuring that the trustee/members properly recognise the separation of superannuation assets from assets that are personally owned and controlled, and the regulations are designed to preserve that separation of assets. For example, from 2011 investments by SMSFs in certain collectibles, including artwork, wine, antiques or memorabilia were subject to regulations regarding these investments that regulate the use of certain collectible assets by members so that they cannot be used by or stored in a member’s residence.
The other exclusion that has gained much coverage during the recent property boom is the rule which overrides the prohibition on borrowing. In principle the trustees of a superannuation fund are not permitted to place members’ retirement funds at risk, thus the power to borrow is restricted. This restriction was eased in 2010 to allow borrowing by any regulated superannuation fund where the borrowing is linked to a specific asset. The provision is particularly relevant to SMSFs due to the structures used to comply with the requirements and the relative scale of the funds held by SMSFs.
This is where the flexibility and investment strategies of SMSFs become relevant. If the members have a bias toward investing in real property, then they may devise an investment strategy incorporating borrowings; whereas other investments with lower capital requirements, such as property trusts, could be funded without borrowing.
However the biggest tax advantage that SMSF members obtain flows from the profile of the SMSF investor. Members of SMSFs typically have <a href="https://www.ato.gov.au/About-ATO/Research-and-statistics/In-detail/Super-statistics/SMSF/Self-managed-super-funds--A-statistical-overview-2010-11/?page=39#Table_11__SMSF_member_age__balances_and_taxable_income__contrasting_with_non_SMSF_member_taxable_income" target="_blank">higher income levels</a> than members of other superannuation funds across all age groups, and their account balances are correspondingly higher. Further, the nature of the fund makes it attractive to investors who take an active interest in their superannuation strategies, despite the risks.
In the meantime the rapid growth in the sector, combined with the level of control that trustees have over the assets of the fund, raises the risk that trustees will make poor decisions: either through not being sufficiently informed in respect of an investment or through pushing the boundaries of the SMSF structure.
There seems to be something inconsistent in a system that mandates savings but then allows those savings to be put at risk through insufficient regulation. It is time for the sector to be examined more closely.
HELEN HODGSON is senior lecturer at the School of Tax and Business Law at the <a href="https://www.unsw.edu.au/" target="_blank">University of New South Wales</a>.
Helen is a member of SPAA.
This article was originally published on <a href="https://theconversation.com" target="_blank">The Conversation</a>.
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hhodgson-WTYf8w7F7q

Taxing times for self-managed super funds

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There are tax issues for Australians living overseas but who want to buy property back home.
It in important the familiarise themselves with Australian tax obligations to avoid nasty surprises from the ATO.
Among the first things to establish is the tax residency status. They will be treated as tax resident of Australia if they meet certain criteria.
Some of the things that determine residency include nationality, where you were present and for how long, where you have a home, and your economic and business ties with the country. 
If you have stayed in Australia for more than six months of the financial year (1 July to 30 June), you will be a tax resident of Australia.
Then there's the domicile. If your domicile remains in Australia and you do not have a permanent place of residence overseas, you will be treated as an Australian tax resident.
If you are a tax resident of Australia, your worldwide income and capital gains are generally subject to Australian tax.
For non-residents, only income earned in Australia and capital gains on ‘Taxable Australian Property’ are taxable in Australia. Any income or capital gain from a property in Australia will always be treated as having been sourced in Australia, hence taxed.
Also watch out for countries with Double Tax Agreement (DTA) with Australia, where the provisions of the DTA may override the domestic law in both Australia and the other country.
If the other country also taxes the same income or capital gain, Australian tax rules generally provide a foreign income tax offset on any foreign tax paid on the same income or capital gain.
There is no substitute for professional tax advice.
Take the common example of an Australian expatriate who buys a home back in Australia while still resident of another country, including for tax purposes.
The house rented until the expat eventually returns to Australia, when it will become the family’s home.
The capital gains tax (CGT) treatment when the home is eventually sold will be influenced by the length of time when the property was not the expat’s main Australian residence.
An expat’s CGT position after owning the property for 10 years but home for only the final two of those years, would, according to Joe Galea, property tax partner for accountants Deloitte in Sydney, see a fifth of any net capital gain taxable.
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jonathanchancellor-7SQnKwU6yx

Australian expatriates are to watch their tax obligations

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Hi Margaret,
We have a 1 acre or 4000 sq metre block of land , zoned farming in country Victoria. We bought it in July 2014 as an investment to develop it as a future home site.
If I sell a block of land with contract of sale dated in 2017 financial year, but settlement is in 2018 financial year, is CGT based on contract of sale date or on settlement date? It will make a difference as we will be retired in 2018 financial year and will be in  a different tax bracket.
The block of land, zoned farming, did not have a planning permit to build a dwelling or shed and has generated no income while we have owned it but we have made improvements. Are the cost of the improvements deductible? We have planted 600 trees at a cost of $1100.
We have drawn up a set of house plans and successfully applied for a planning permit to build a dwelling and shed at a cost of $1400. Are maintenance costs deductible?
E.g. 100 trips to the block of land to mow lawns, water trees, earth moving costs to remove dead trees, loan costs and purchase costs and selling cost.
Can we deduct stamp duty on purchase? Legal costs on purchase? Loan borrowing costs? Loan interest from date of purchase to date of sale? Loan discharge costs? Legal costs on sale of land? Council rates from purchase date to sale date? Break fees on a fixed loan for the land purchase if I sell before the 4 year fixed term is completed?
Thanks for your suggestions
Regards
Kevin
 
Hi Kevin,
According to the Australian tax office:
When you sell or otherwise dispose of real estate, the time of the event (when you make a capital gain or capital loss) is usually:
<ul>
<li>when you enter into the contract (generally the date on the contract), not when you settle – the fact that a contract is subject to a condition, such as finance approval, generally doesn't affect this date</li>
<li>when the change of ownership occurs if there is no contract (such as when a property passes to a beneficiary), or</li>
<li>if the real estate is compulsorily acquired – the earliest of</li>
<ul>
<li>when you receive compensation from the acquiring entity</li>
<li>when the entity became the property's owner</li>
<li>when the entity enters the property under a power of compulsory acquisition, or</li>
<li>when the entity takes possession under that power.</li>
</ul>
</ul>
In your case this means the event occurs in 2017 and this is the year the tax becomes due and payable.  If you have already lodged your tax return before settlement and the receipt of the proceeds, you would need to request an amendment to the prior year’s return. 
As for the remainder of your questions, you do need specific advice which takes into account all of your circumstances, including the purpose for which you originally bought the property and your intentions at the time.  Generally speaking though, I can tell you that:
1.   If this is not a working farm the zoning should not impact deducibility of any bona fide investment property related deductions.  You will need to get some specific advice around the planting of the trees, though, as they may not be deductible, unless such planting was required for the purposes of earning property related income.  
2.   Improvements to a rental property are deductible as long as the purpose for the block was to build an investment, and not to build future own home. 
3.   Once a property becomes income producing, maintenance costs are deductible.  If your intention was to build a property to rent out but instead you sell, some of your costs may become capital costs, but again this one would have to be determined by your accountant.
4.  You have a large list of other costs and again, their deductibility depends upon the reason you bought the block – if it was for an investment some may be considered capital costs (and so add to your cost base for the purposes of determining capital gains tax) and others, as long as the property was income producing, may be deductible as yearly expenses.  Even some costs which are normally yearly expenses can be added to the cost base in certain circumstances.  
It is critical that you consult with a highly skilled accountant who has experience in this area to be sure that you get the right advice.  Remember, regardless of what any one tells you, the responsibility for making the right claims rests with the tax payer.  Bad advice won’t get you out of trouble if you make an incorrect claim.
 
Have a property question?  <a href="mailto:news@propertyobserver.com.au" target="_blank">Ask Margaret!</a>
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mlomas-KC9MUPZ6Ca

Ask Margaret: Is CGT based on contract of sale date or on settlement date?

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RE/MAX Western Australia’s managing director Geoff Baldwin has spoken out against potential changes to current stamp duty dispensations for first home buyers, saying that if the relief was decreased or abolished there would be dire effects across the market.
 “The negative affect the ceasing of stamp duty relief for first home buyers would be extremely damaging however, when this segment of the market stagnates it ripples up through all price ranges and the effect would be crippling”, said Baldwin.
“If you take a line through New South Wales and Victoria where subsidies have been abolished, first home buyer activity has dropped to 8% and 12% respectively, compared to the current 22% in Western Australia (RP Data).
“Historically, in a healthy market, first home buyers account for around 25 to 30% of all buyers.
“The established home market has already taken a massive hit through the government’s recent actions in changing the First Home Owner Grant whereby those building new homes receive $7,000 and people buying established only $3,000.
“To abolish first home owner stamp duty concessions would be extremely short sighted as it will a negative impact the whole market and hence the Industry, just at a time where we are again experiencing some prosperity in the property sector.”
 
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jrichardson-uRX5hFdKfN

Rumoured cuts to stamp duty relief for first home buyers would be “extremely damaging”: RE/MAX

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Being the trustee of a self-managed super fund (SMSF) gives you the opportunity to manage your own superannuation investments and make your own investment choices.
As the trustee and member of a SMSF, you can have full control over how your retirement savings are invested, whether you want returns from property, shares or even art and collectables.
If you’re thinking of setting up a SMSF, your duties as a trustee will include devising an investment strategy, accepting contributions and paying benefits.
The Australian Taxation Office (ATO) is the authority of SMSFs, enforcing the majority of regulations and restrictions that apply to the investment strategy. This morning Peter Iordanidis of the ATO provided an overview of SMSFs for trustees. 
Some top tips to ensure your fund is compliant:
<ol>
<li>
 Understand the sole purpose of your fund As a trustee, you must ensure that the sole purpose of your SMSF is to provide for its members in retirement. Even if you use a professional to do certain tasks on your behalf, you still must comply with super and tax laws to protect your members’ assets. To ensure that you get the full tax concessions available to SMSFs, you must pass the sole purpose test. Your investment decisions should be based on increasing returns to your fund. You need to consider diversification, risks and likely returns from your assets. You also need to consider your members’ needs and circumstances – even if you are the only member. For example, if you’re nearing retirement age, you may want to change your SMSF asset mix to include more low risk, low reward investments.  
</li>
<li>
Make sure you don’t get any benefit pre-retirement… With post-retirement benefits the sole purpose of your SMSF, you must ensure that you don’t use the fund to get any current day benefits, or you face penalties including the loss of your tax concessions, fines up to $220,000 or up to five years’ jail time. Trustees are prohibited from dipping into their funds to pay for bills, school fees or for any non-retirement investments. As a trustee you are prohibited from borrowing money from the SMSF pre-retirement (with some exceptions) and all transactions made with your SMSF must be made “at arm’s length”. Trustees must make and maintain investments on a strict commercial basis, while the purchase and sale prices of fund assets should always reflect true market value. You can use your SMSF to invest in a wide variety of assets, even art and collectables. You can use your fund for artwork and collectables, but you cannot enjoy a direct or indirect benefit from the investment by displaying it in your home or business prior to retirement. 
</li>
<li>
…And your family doesn’t either A fund is prohibited from lending money to a member of the fund or a relative of a member. The definition of relative is quite broad – this can include siblings, parents, children, and extended family members. The definition also covers the spouse of any family members. That means that you can’t lend money from your SMSF to your sister-in-law. Your SMSF is also prohibited from providing financial assistance to a member or a member of a relative, whether directly or indirectly. This means can’t use your SMSF as security for your child’s mortgage. Iordanidis provided the example of a husband and wife who were trustees of their SMSF. Their SMSF sold a property it owned, but no money was paid for the property, as the sale contract created a loan between the fund and the purchasers. However, it turned out that the purchasers were relatives of the husband and wife, which meant that they had made a loan to family members. The trust incorrectly advised the ATO that the loan was repaid in full, and the fund was deemed non-complying and stripped of its tax concessions. Trustees are generally prohibited from acquiring non-cash assets from related parties – a rental property, for example. 
</li>
<li>
Do your paperwork (or get someone else to do it for you) As a trustee for a SMSF, you have a range of annual responsibilities. You must keep your records up to date and value assets at their current market value at least once a year. You have to prepare financial statements, lodge an annual return and report contributions, even if no contributions were made that year. You’ll also need to lodge an income return every year from the year you set up your fund, for each member. Most of those duties can be performed by an accountant, but it’s your responsibility to make sure they are done and lodged with the ATO. The ATO also requires an audit of your SMSF each year, performed by an approved SMSF auditor who is registered with ASIC and has a SMSF Auditor Number. The auditor can’t be a trustee member of the fund, or your accountant who prepares your other financial statements. You’ll also need to make sure you appoint the auditor early enough for them to do the audit and for you to submit it.  An audit is required even if you haven’t made any contributions in the year.  When you engage professionals, make sure you have a clear understanding of their responsibilities. Any contraventions of super or tax law that are identified by your auditor must be fixed. You can ask the ATO for advice on how to go about rectifying any mistakes you’ve made.
</li>
</ol>
There are a range of other rules and regulations surrounding SMSFs that you need to know to receive full tax concessions (and avoid penalties). Go to the <a href="https://www.ato.gov.au/" target="_blank">ATO's website</a> to learn more.
YOU MAY ALSO LIKE TO READ:
<a href="/guides/ato-cast-doubts-on-smsf-property-zero-interest-loan-strategy">ATO cast doubts on SMSF property zero interest loan strategy</a>
<a href="/guides/taxing-times-for-self-managed-super-funds">Taxing times for self-managed super funds</a>
<a href="/guides/investors-should-expect-smsf-borrowing-to-come-under-greater-government-scrutiny">Investors should expect SMSF borrowing to come under greater government scrutiny</a>
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Self-managed super funds: Top tips from the ATO

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As the end of the financial year approaches, self-managed super fund (SMSF) trustees can employ a number of strategies to legally minimise their tax payments.
Graeme Colley of the SMSF Professionals’ Association of Australia says those strategies include after-tax and age-specific tax contribution.
“Making after-tax contributions to super, which could come from your personal savings, transferring personal investments or an inheritance, is one effective way to minimise tax,” says Colley.
While the maximum personal after-tax contribution for this financial year is $150,000, those aged 65 or over can contribute up to $450,000 over a three-year period.
“This allows you to make substantial contributions to super and build your retirement savings,” Colley says. But he warns SMSF trustees not to go over the after-tax contribution caps, with excess contributions attracting tax rates up to 46.5%.
The after-tax contribution cap will rise for the next financial year, says Colley.
“Remember, too, that from 1 July 2014, the after-tax contributions cap increases to $180,000. This means if you can trigger the bring-forward rule that a total of $540,000 can be contributed over the fixed three-year period.”
He explains that SMSF trustees who are aged 60 and over have a maximum tax deductible contribution cap of $35,000.
“These contributions include amounts you make as salary sacrifice, the Superannuation Guarantee or, if you qualify, personal deductible contributions. If you want to maximise your contributions before 30 June, make sure you talk to your accountant, tax agent or professional adviser so that your salary sacrifice agreement with your employer allows the maximum to be salary sacrificed,” says Colley.
Regulations apply to those aged 65 or over who still want to contribute to their SMSF.
“If you are 65 or older you will need to meet a work test to contribute to super in most cases. You will need to work for at least 40 hours during 30 consecutive days at any time during the financial year to make tax deductible and non-deductible contributions to super,” says Colley.
Once you reach 60 years old, all lump sums that you extract from your super fund is tax free, with some exceptions for government funds.
“However, before age 60 any lump sums that include a taxable component can be taxable. The taxable component includes the tax deductible contributions plus any income that has accumulated in your superannuation benefit. No tax is payable on taxable amounts of up to $180,000, in total, you receive before age 60. This amount is indexed annually,” says Colley.
He says that if trustees are eligible to draw from their superannuation, it may benefit them to wait until they are over 60 years old, or a later financial year.
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Tax minimisation strategies for SMSF trustees: SPAA

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The developer lobby is the boy who cried wolf in Australian real estate. He’s actually right about something and desperately wants to be heard, but no one is listening anymore.
The recurring topic is the cost of housing. It’s absorbing far too much time and energy for stakeholders everywhere, because politicians find the obvious solutions unpalatable.
If politicians stopped taxing real estate to within an inch of its life, life for home-buyers would become so much easier. The cost of a new home for a first-timer could be massively reduced. One estimate suggests the typical new home in Sydney could cost $250,000 less.
The developer lobby argues that stamp duty is the single biggest problem. I have to agree that stamp duty is an obscenity. Having to cobble together a deposit is a big enough challenge for property buyers, without having to save to pay an exorbitant and unjust tax as well.
Stamp duty on the median priced dwelling in Sydney ($752,000 according to RP Data) is almost $30,000. It’s similar sum for the same purchase in Perth, while anyone buying a home at that price in Melbourne would pay over $40,000.
It’s tantamount to paying a fine for the crime of buying a home or an investment to fund your retirement.
The developer lobby has been targeting this issue with one of its endless campaigns. It wants stamp duty scrapped. It presents some compelling evidence, but I doubt anyone important will take any notice because builders and developers have been crying wolf on multiple issues (e.g. the mythical housing shortage crisis) for years.
And its proposal overall is a massive turnoff. Its argument essentially is this: everyone should pay more tax so that the development industry can make more money.
The Property Council of Australia, arguably the most self-absorbed group in society, is suggesting that stamp duty should end and the lost government revenue be recouped by increasing the GST. 
The proposal, therefore, is that everyone should pay more for everything they buy so that real estate can be exchanged cheaper. I’m sure that’ll go over well with the general public and the politicians they elect.
The council argues stamp duty is inefficient and "a runaway cash grab that's hurting Australia's economy and locking out potential home buyers". It says the community should be outraged at figures like these:
The cost of stamp duty to a home buyer with an average-sized mortgage has increased 795% in Melbourne and 749% in Sydney in the past 20 years. 
Property owners have become Australia's largest collective taxpayer, contributing 9% of total tax revenue.
Property taxes make up as much as 46% of state, territory and local government budgets. Stamp duty alone contributes more than 20% of the total revenues of the NSW,      Victoria, Western Australia and Northern Territory governments.
The cost of stamp duty over the life of an average mortgage is now $61,542 in Sydney, $56,616 in Melbourne, $49,701 in Darwin and $35,427 in Canberra.
The Housing Industry Association, another noisy member of the developer lobby, says property taxes add around $250,000 to the price of a new home in Sydney. That, it says, accounts for 40% or $1,350 per month for the life of a home mortgage.
"Taxes on new housing are a brake on economic activity, and represent a constraint on housing affordability and labour productivity," the association's head of industry policy Graham Wolfe says.
Wolfe says stamp duty is the most inefficient tax in the system. However, he says there are many other taxes on new homes, including developer infrastructure levies, which can add $70,000 to the cost of a new home-and-land package. GST is also levied on new homes, but not existing properties, adding tens of thousands of dollars to the cost.
The problem is: state governments will never give up their property taxes. They’re addicted to them.
We’ve seen what’s happened with the ACT Government. It went to an election promising to eliminate stamp duty within a specific time frame. Now they’re reneging on their promise. They just can’t let go of all that lovely money.
And, for them, the protests of the developer lobby are just background static. No one is listening.
TERRY RYDER is the founder of <a href="https://www.hotspotting.com.au/" target="_blank">hotspotting.com.au</a>. You can <a href="https://mailto:ryder@hotspotting.com.au" target="_blank">email him</a> or follow him on <a href="https://twitter.com/hotspotting" target="_blank">Twitter.</a> 
Terry was recently joined by Property Observer editor at large Jonathan Chancellor for a webinar on why research is the key to successful property investing in 2015. You can download slides and audio from the webinar here.
 
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terryryder-YECXbqmri2

State governments addicted to property tax: Terry Ryder

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A Federal Court judgment this month provides telling lessons for members of self-managed super funds (SMSFs), including those operating small-medium businesses.
The court personally fined the husband-and-wife directors of their SMSF’s corporate trustee a total of $50,000 for a series of contraventions of superannuation law, including the making of 80 “loans” to members, namely themselves.
Fund money was also used to buy study cattle “for hobby purposes” as well as to pay veterinary bills and other related expenses without the fund earning income from the expenditure. The couple, who were the only members of their SMSF, operates a livestock business in Victoria.
Further, the trustees allowed their son to live in a fund-owned property without paying the rent required under the lease. And the fund had spent $48,500 on furniture before the lease commenced.
This court case – <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca1101">Deputy Commissioner of Taxation (Superannuation) versus Graham Family Superannuation Pty Ltd, Ian Christopher Graham and Carolyn Ann Graham</a> – illustrates the risks when SMSF members mix their superannuation and their non-superannuation finances.
Peter Bobbin, principal of lawyers Rockwell Olivier in Sydney, says: “Without doubt, the couple used the super fund as a personal bank to fund their [pre-retirement] lifestyles.”
There is no suggestion in the judgment that the husband-and-wife trustee directors/members in this case used money from their SMSF in relationship to their business. However, Bobbin and Chris Malkin, the senior consultant auditor with Baumgartner Superannuation, say the case represents a warning for SME owners about the dangers of mixing their super, their business and personal finances.
“This case reminds me of the need for SME owners to quarantine their superannuation from their business activities,” says Bobbin. And Malkin believes that SME owners can face a greater temptation than other members to use their super money for purposes other than for their retirement.
“The simple reason is that the cash-flows of SME owners are sometimes stretched and some may see their super fund as a pseudo bank,” says Malkin.
The couple’s contraventions of superannuation law included breaching superannuation’s sole purpose test, providing financial assistance to members, exceeding the limits on in-house assets and failing to conduct dealings on an arm’s length basis.
This case should reinforce to SMSF members regarding some of the most fundamental provisions in superannuation law. These include:
<ol>
<li>The sole-purpose test: A super fund must be maintained for the purpose of providing retirement or death benefits to members.</li>
<li>The ban on providing financial assistance, including loans, to members or their relatives: Significantly, there is no exemption under the in-house rule (see next point) to the ban on providing financial assistance to members.</li>
<li>The in-house asset rule: SMSFs are generally prohibited from making loans, providing leases or having investments with related parties and entities that exceed 5% of its total asset value. (One of the very few exemptions to the in-house asset rule is business real estate.)</li>
<li>Arm’s length investments: A fund must make investments on an arm’s length, commercial basis.
</li>
</ol>
As Peter Bobbin of Rockwell Olivier says, the ATO in this instance did not revoke the SMSF’s complying status but had decided to pursue the trustees through the court.
When an SMSF is declared non-complying, its assets – less any after-tax, non-concessional contributions – are taxed at the highest marginal rate. This is widely regarded as an ultimate sanction against an SMSF.
Stuart Jones, author of the Australian Superannuation Handbook 2014-15 (published by Thomson Reuters) expects that the ATO is likely to apply its new administrative penalty regime, in force from July this year, to similar cases in the future.
Under the new penalty regime, the Tax Office can directly and personally fine SMSF trustees by imposing an administrative penalty (ranging from $850 to $10,200) intended to match the seriousness of the contravention. Therefore, the ATO does not have to go through the expensive and time-consuming process of seeking court-imposed penalties.
Jones says the commissioner still has the option of applying for a civil penalty court order of up to $220,000 for each offence, or even instituting criminal proceedings in certain cases.
Given the large number of contraventions in the Graham family matter, Malkin suspects the overall penalties would have been significantly higher if it had been dealt with under the new penalty regime.
This article first appeared on <a href="https://www.SmartCompany.com.au" target="_blank">SmartCompany</a>.
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