From Issue 52, 2010-11 of Superannuation Quarterly, dated March 2011
In a nutshell...
Tax deductions for SMSFs
This article looks at various tax deductions that are available to a complying Self Managed
Superannuation Fund (SMSF) and then explains the general principles governing the
deductibility of that expenditure. The article also briefly examines certain non-deductible
items of expenditure typically incurred by SMSFs.
The taxable income of a complying SMSF is determined as if the trustee were a taxpayer and
a resident for tax purposes (s295-10).
As a general rule, the deductibility of expenditure incurred by an SMSF is determined under
s8-1 of the Income Tax Assessment Act 1997 (ITAA97), unless a specific provision applies (eg.
tax compliance costs under s25-5). A deduction is available only to the extent to which the
relevant expenditure is ‘incurred’ in gaining or producing assessable income of the SMSF (see
TR 97/7 for the Commissioner’s views on the meaning of ‘incurred’).
...the full article follows
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Superannuation
quarterly
March 2011 www.superaustralia.com.au
Issue 52 • 2011
Tax deductions for SMSFs
By Graeme Evans
This article looks at various tax deductions that are available to a complying Self Managed Superannuation Fund
(SMSF) and then explains the general principles governing the deductibility of that expenditure. The article also
briefly examines certain non-deductible items of expenditure typically incurred by SMSFs.
The taxable income of a complying SMSF is determined
as if the trustee were a taxpayer and a resident for tax
purposes (s295-10).
•
As a general rule, the deductibility of expenditure
incurred by an SMSF is determined under s8-1 of the
Income Tax Assessment Act 1997 (ITAA97), unless a specific
provision applies (eg. tax compliance costs under s25-5).
A deduction is available only to the extent to which the
relevant expenditure is ‘incurred’ in gaining or producing
assessable income of the SMSF (see TR 97/7 for the
Commissioner’s views on the meaning of ‘incurred’).
TIP
As a SMSF would be in breach of the ‘sole purpose test’
if it ran a business, the second element to s8-1 is not
relevant to SMSFs.
TIP
The general principles governing the deductibility of
expenditure incurred by all superannuation funds is
contained in Taxation Ruling TR 93/17.
PRUDENTIAL WARNING
Tax deductibility implications aside, SMSFs should
always pay careful consideration to the ‘sole purpose
test’ and other provisions of the Superannuation Industry
(Supervision) Act 1993 (SISA93) and its supporting
regulations before incurring any expenditure.
it has the character of an operating or working
expense of a business or is an essential part of the
cost of the fund’s business operations.
List of general deductions
Subject to the possible need for ‘apportionment’ (see
TR 93/17 and below), the expenses of an SMSF which are
ordinarily deductible under s8-1 include:
•
administration fees (see TR 93/17)
Payments made by third parties
•
actuarial costs (see TR 93/17)
The treatment of SMSF expenses paid by third parties
on behalf of an SMSF is set out in Taxation Ruling TR
2010/1 (see para 172). Where a person pays an amount
to a third party (eg. an Independent SMSF Auditor) on
behalf of an SMSF, the payment is treated for all tax
purposes as though the person had made an in-specie
contribution to the SMSF and the fund has separately
paid an equal amount to the third party. (Note: TR 2010/1
replaces MT 2005/1.)
•
accountancy fees (see TR 93/17)
•
audit fees (see IT 2625 & TR 93/17)
•
trustee fees and premiums under an indemnity
insurance policy (see TR 93/17)
•
legal fees (eg. costs of amending a trust deed
in order to satisfy regulatory requirements or
increase day to day operational efficiency) except
where of a capital nature (see IT 2672 & TR 93/17)
•
costs in connection with the calculation and
payment of benefits to members (but not the cost
of the benefit itself ), such as interest on money
borrowed to secure temporary finance for the
payment of benefits, medical costs in assessing
invalidity benefit claims etc (see TR 93/17)
General deductions
•
In the absence of a specific provision, expenditure of an
SMSF which is not of a capital, private or domestic nature,
is deductible under s8-1 to the extent that:
investment advisor fees and costs in providing
pre-retirement services to members
•
membership subscriptions paid to professional
associations
•
costs of collecting or receipting of contributions
(even if they are not assessable contributions) (see
s295-95(1))
[Unless otherwise stated, all legislative and regulatory
references are to the ITAA97.]
PART A – Allowable deductions
(non-exhaustive)
•
it has the essential character of an outgoing
incurred in gaining or producing assessable
income, or
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Tax deductions for SMSFs
•
•
subscriptions to share market information
services and investment journals to the extent the
expense relates to earning dividend or interest
income from a portfolio of shares or bonds (see
TD 2004/1), and
other administrative costs incurred in managing
the fund.
TIP
As the amount of non-arm’s length income is reduced
by deductions to the extent that they are attributable
to that income (s295-545(2)) with the resultant amount
being taxed at 45%, it is clearly important to identify
those deductions that are attributable to that non-arm’s
length income.
Apportionment
General administrative expenses relevant to the
operation of a superannuation fund as a whole, and
non-capital expenses incurred in producing investment
income, must generally be apportioned using the methods
specified in Taxation Ruling TR 93/17. Apportionment
ensures that the expenditure is deductible only to the
extent to which it is incurred in producing assessable
income (but see Cost of collecting contributions below).
Therefore, apportionment would be necessary in the
case of undifferentiated expenditure. See below for a
further discussion on the issue of ‘apportionment’.
Cost of collecting
contributions
When applying s8-1,
contributions made to
an SMSF are taken to be
included as assessable
income, whether or not it is
an assessable contribution
(s295-95(1)). This means
that the SMSF can deduct
amounts incurred that are
related to the collection or
receipt of the contributions,
even where they are not
assessable contributions
(also see TR 93/17).
Trust deed amendments
Trust deed amendments
may be deductible under either s8-1 or s25-5 if:
•
the amendments are necessary due to changes in
Government regulations and are made to ensure
that the fund’s day-to-day operations continue to
satisfy the Regulator’s requirements (see IT 2672),
or
•
the amendments make administration of the fund
more efficient and do not result in a restructuring
of the fund (see TR 93/17).
Specific discussion on certain allowable
deduction under s8-1
Specific deductions
Investment-related expenses
ATO Supervisory levy
The exact nature of the investment-related expenses
is critical in determining deductibility. For example,
commissions and ongoing management fees are
ordinarily deductible, but upfront fees incurred
in investing money are of a capital nature and not
deductible. Examples of deductible investment-related
expenses include:
•
ongoing management fees or retainers paid to
advisers or costs of servicing and managing an
investment portfolio (see IT 39, TD 95/60; ATO ID
2004/139), and
•
the cost of advice to change the mix of
investments, whether by the original or a new
adviser, provided it does not amount to a new
financial plan ( TD 95/60).
The Tax Office’s ‘Supervisory levy’ is set at a flat
amount of $150 and is payable annually by all SMSFs.
The imposed levy is deductible as a tax-related expense
under s25-5. The levy is deductible in the financial year
it is paid.
WARNING
If the investment-related advice covers other matters,
or relates in part to investments that do not produce
assessable income, only a proportion of the fee is
deductible (eg. no deduction is available for management
fees debited to a retiree’s allocated pension account (see
ATO ID 2004/968)).
TIP
The following super specific penalty items are not
deductible:
•
•
•
late payment penalties (s26-5)
late lodgement penalties (s26-90), and
the Superannuation Guarantee Charge (SGC) (s2695).
Tax compliance and advice costs
A SMSF is eligible to claim a deduction under s25-5 for
tax-related expenses ‘to the extent’ it is for:
•
managing its own tax affairs (eg. fees paid to a
registered tax agent for preparing an income tax
return, fees paid to a solicitor or registered tax
agent for tax planning advice and costs incurred
in disputing an assessment)
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Tax deductions for SMSFs
•
complying with an obligation imposed by a
Commonwealth law, insofar as that obligation
relates to the tax affairs of an entity (eg. the cost
of supplying the Tax Office’s information and
documents concerning the income tax affairs of
another entity), or
•
general interest charge (GIC) and the shortfall
interest charge on unpaid tax and penalty and
underpayments of tax.
However, see Tax compliance and advice costs and
Penalty items under PART B - Non-allowable deductions.
Deductions for insurance premiums and death or
disability benefits
A complying SMSF that provides death or disability
benefits may claim a deduction for the provision of these
benefits (s295-460). The portion varies depending on the
nature and type of policy and uses one of the following
methods: premiums paid basis (s295-465), or actual cost
basis (s295-470).
extends the range of benefits in s295-460 to include
Terminal Medical Condition (TMC) benefits. The benefits
in s295-460 are benefits in relation to which complying
superannuation funds and retirement savings account
providers can claim a deduction. If enacted, this measure
will have effect from 16 February 2008.
Deductions for anti-detriment payments
A
continuously
complying
super
fund
(ie. one that has always been subject to concessional tax
treatment, or subject to concessional tax treatment since
1 July 1988 if in existence before then), may be entitled
to a deduction under the anti-detriment payment
provisions in s295-485 when the following occurs.
•
TIP
Since 1 July 2008, same-sex couples and their children
are treated the same as opposite-sex couples and their
children.
These deduction provisions apply to the following
types of benefits:
•
superannuation death benefits
•
disability superannuation benefits, and
•
benefits consisting of an amount payable to
a person as an income stream because of the
person’s temporary inability to perform normal
employment duties that is payable during this
period of inability up to age 65.
WARNING ON ‘TRAUMA POLICIES’
A deduction is not available under s295-465 in respect of
premiums paid for trauma policies. These policies fail to
meet the definition of a ‘death or disability benefit’. This
issue was considered in ATO ID 2002/371 under former
s279(1) of the Income Tax Assessment Act 1936.
Please note that if an SMSF receives a rebate or
refund of premiums for which a deduction has been
allowed under s295-465, the amount of the rebate or
refund is included in the SMSF’s assessable income for
the financial year in which it is received (s295-320 item
4). For example, this could occur if a policy is cancelled
during a year and the unused portion of premiums is
refunded.
[Editor: For a complete discussion of death or
disability deductions for SMSFs, please refer to an
article entitled Death or disability deductions for
SMSFs which appeared in Superannuation Quarterly,
Issue 50 September 2010 p 1.]
New legislation currently before Parliament
At the time of writing the Tax Laws Amendment (2010
Measures No. 5) Bill 2010 was before Parliament. This Bill
The fund pays a superannuation lump sum
because of the death of a person to the trustee of
the deceased’s estate or an individual who was a
spouse, former spouse or child of the deceased at
the time of death or payment.
•
The fund increases the lump sum by an amount
(the Tax Saving Amount (TSA)) to effectively
refund any contributions tax that has been paid
on contributions made on behalf of the member.
The SMSF needs to pay out the TSA and then claim
a tax deduction on its assessable income (as calculated
in accordance with s295-485(3)) to recover the amount
paid from the Tax Office. The deduction can be claimed
in the year of payment and any unused amount is carried
forward to future years.
The anti-detriment provisions can provide a significant
taxation benefit to continuing members of the fund by
reducing tax payable in future years.
TIP
The ability for the trustee to increase death benefit
payments and claim the corresponding deduction must
be allowed under the trust deed. This is best if it is
expressly specified as a power, and not an absolute
requirement, in the trust deed.
As the SMSF will need to pay out the increased benefit
amount before the benefit is recovered from the Tax
Office via a tax deduction, the SMSF must ensure that
it has available reserves or fund to make the increased
payment amount.
Payments to deceased estate
If the recipient of the superannuation death benefit
is the trustee of the deceased member’s estate, the
deduction allowable only relates to the portion of benefit
to which the dependants of the deceased member may
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Tax deductions for SMSFs
reasonably be expected to benefit from the estate (s295485(4)).
Deduction amount
The amount that the fund can deduct using the
formula in s295-485(3) is calculated as:
(Tax saving amount / low tax component rate)
where:
•
the ‘low tax component rate’ is the rate of tax
imposed on the low tax component of the fund’s
taxable income for the income year
(ie. 15%), and
•
the ‘tax saving amount’ is the amount of
contributions tax refunded through an increased
death benefit payment.
If the actual tax saving amount cannot be calculated
by the SMSF, the Tax Office will accept an alternative
formula. In ATO ID 2007/219, the Commissioner states
that he will accept an alternative method, as set out
below, as a means of calculating the tax saving amount
in s295-485(3) where the actual amount cannot be
calculated by the superannuation fund.
(0.15 x P)/(R – 0.15 x P) x C
where:
P = the number of days in component R that occur
after 30 June 1988
R = the total number of days in the service period as
defined in s307-400 that occur after 30 June 1983,
and
C = the taxable component of the lump sum calculated
under s307-125, as if no deduction under s295485(2) were allowed, after excluding the actual (if
any) insured amount for which deductions have
been claimed under s295-465 or s295-470.
The superannuation fund in ATO ID 2007/219 is a
fully taxed accumulation fund, where the member’s
benefits are the sum of contributions and investment
income earned on those contributions over the period
of membership, less expenses such as fees, taxes and
insurance premiums.
Members may transfer superannuation benefits into
the fund from other funds. The details of the benefits
transferred from other superannuation funds do not
include the actual effect of tax paid by that fund.
Therefore, the fund cannot calculate the amount of tax
paid on amounts in the member’s accounts as its records
do not track the effect of fund tax on individual accounts
over the membership period.
Example
Shane commenced his SMSF on 1 October 1991. He died
on 1 October 2009. The value of his account to be paid
as a death benefit to his wife is $220,000 and is all taxable
component. Shane was born on 20 January 1950 and
would ordinarily have retired on 20 January 2015. His
SMSF fund has been a complying superannuation fund
since commencement.
His account balance included some roll-over benefits
so the SMSF was not able to calculate the tax savings
amount. The tax saving amount is calculated as:
(0.15 x P)/(R − 0.15 x P) x C
where:
P = days from 1 October 1991 to 1 October 2009 = 6,575
days
R = days from 1 October 1991 to 1 October 2009 = 6,575
days
C = $220,000
The tax saving amount is:
(0.15 × 6,575)
(6,575 − (0.15 × 6,575)) × $220,000 = $38,824
The amount of the deduction allowed to the SMSF under
s295-485 is $38,824/15% = $258,827.
Provided the fund pays a benefit of $258,824 (being
$220,000 + $38,824) to Shane’s wife, the fund will be
allowed a deduction of $258,827. This deduction can be
used to offset tax liability in the current year. Any unused
deduction can be carried forward to offset tax liability in
future years.
TIP
The alternative method under ATO ID 2007/219 is
desirable especially where the deceased member’s
account may include benefits transferred from other
super funds, and those benefits do not include the actual
effect of tax paid by that fund.
TIP
In ATO ID 2008/111, the Commissioner states that when
calculating the TSA, the superannuation fund can also
take into account the interest that would have been
earned on the contributions if tax had not been imposed.
WARNING
If an SMSF trustee increases a superannuation lump
sum benefit to take advantage of the deduction under
s295-485, the amount of the increase is a concessional
contribution where it is allocated to the deceased
member’s account from a reserve (unless the exclusion
in r292-25.01(4)(a) of the Income Tax Assessment
Regulations (ITAR97) applies.
If the amount is not allocated to the member’s account
from a reserve, it will not be a concessional contribution
unless it is funded from a contribution that meets the
requirements of s292-25(2).
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Tax deductions for SMSFs
‘Clawback amount’ deduction
A complying SMSF’s assessable income in a year of
income may be reduced by a ‘clawback amount’ in
respect of assessable contributions of an earlier year
of income (s295-490(1) item 2). This arises where a
member’s contributions have been included in the fund’s
assessable contributions in a year of income and, after
the lodgement of the fund’s income tax return, the
trustees receive a s290-180 notice from the member
which reduces the amount of the contributions to be
included in assessable contributions.
Such a notice must be received by the end of the
financial year after the year in which the contributions
were made. In such a case, the clawback amount
is allowed as a deduction from the fund’s assessable
income in the year that the notice is received.
If the fund is unable to fully utilise the ‘clawback
amount’ deduction (eg. the fund’s taxable income in that
year is exceeded by the deduction or the fund would lose
the benefit of franking credits), the fund has the option of
amending its assessment of the fund for the year in which
the contributions were included in assessable income
(s295-195(2) and (3)).
Example
Cliff is a member of an SMSF. On 10 August 2009 he
lodged a notification with the fund trustee stating his
intention to claim a tax deduction for the full $10,000
he contributed to the fund during the 2008-09 financial
year.
The SMSF lodged its tax return in November 2009 and
included the $10,000 as assessable income. When Cliff’s
personal tax return was completed by his accountant
in March 2009 he decided to reduce the amount of
the deduction to only $6,000 and notified his fund
accordingly.
Unless the SMSF decides to first exercise the option
under s295-195(3), it is able to claim a tax deduction for
the $4,000 contributions (ie. the clawback amount) in its
2009-10 tax return under s295-490(1) item 2.
Assessable contributions that are also fringe benefit
amounts
A complying SMSF can deduct for the income year in
which contributions are received, those contributions
included in the fund’s assessable income that are fringe
benefits, as these will be taxed as fringe benefits in the
hands of the contributor (s295-490 item 1).
Expenses relating to investments in PSTs and life
policies
A complying SMSF may claim a deduction for
expenses incurred in relation to investments in Pooled
Superannuation Trusts (PSTs) or in life insurance policies
issued by life companies or in custodian trusts under
such policies (s295-100 & TD 1999/6).
Any profit, gain or bonus derived from investments in
PSTs and life policies is treated as assessable income for
the purposes of applying the deduction provisions.
Investment or administration charges levied by a PST
or life office which are generally of a capital nature are
not deductible, unless they are not of a capital nature.
However, except where deductible under s295-465 (see
Deductions for insurance premiums and death or disability
benefits above) a complying superannuation fund is not
entitled to a deduction for fees or charges incurred in
respect of:
•
complying superannuation/First Home Saver
Account life insurance policies or exempt life
insurance policies, or
•
units in a PST that are segregated current pension
assets of the fund (ie. exempt units in the PST).
Apportionment
General administrative expenses relevant to the
operation of a SMSF as a whole, and non-capital expenses
incurred in producing investment income, must generally
be apportioned using the methods specified in TR 93/17.
Apportionment ensures that expenditure is deductible
only to the extent to which it is incurred in producing
assessable income.
Apportionment of certain expenses may be necessary
where:
•
the expense is partly capital in nature, or
•
the expense relates to income which is partly
assessable, partly exempt or partly non-assessable
and non-exempt.
TIP
Even where a SMSF has exempt current pension income
(ECPI), certain specific deductions can be claimed in
full, such as the supervisory levy and death or disability
premiums.
TIP
For further information on ECPI, please refer to an article
entitled Exempt Current Pension Income which appeared
in Superannuation Quarterly, Issue 51, March 2011, p 6.
The appropriate method of apportionment is a question
of fact. Taxation Ruling TR 93/17 contains two methods
of apportioning expenditure which are acceptable to the
Commissioner. An SMSF may, however, use any other
method that produces a fair and reasonable assessment.
TIP
SMSFs cannot claim deductions for approved auditor
fees, management and administration expenses where
all or part of the item relates to ECPI.
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Tax deductions for SMSFs
If all the income derived by an SMSF is claimed as
ECPI, and there is no other assessable income, these
tax-related expenses should not be shown in section
C – deductions under label J or label L or any other label
in the Self-managed superannuation fund annual return
(NAT 71226). No deductions are allowable against
exempt income.
The two methods of apportioning expenditure
suggested in TR 93/17 are noted below.
business structures, such as a company or trust
(commonly called ‘blackhole expenditure’).
The capital expenses of setting up a complying SMSF
(eg. establishing a corporate trustee and other
formation expenses) do not qualify for the
s40-880 deduction as the fund is not carrying on a
business in the usual sense, even though it is producing
assessable income predominantly from its investments
and taxable contributions.
Tax compliance and advice costs
1. Method 1
Non-capital expenditure incurred in gaining or
producing investment income only (eg. investment
manager fees) can be apportioned according to the
formula:
(Expenditure × (Assessable investment income / Total
investment income))
2. Method 2
General administrative expenses relevant to the
operation of the fund as a whole can be apportioned
according to the formula:
(General administrative expenses × (Assessable income /
Total income))
where
•
‘total income’ means assessable income plus
exempt income, and
•
‘assessable income’ for apportionment purposes
includes all contributions to the fund (whether
assessable contributions or not), net capital gains,
imputation credits and foreign income gross ups.
PART B – Non-allowable deductions
(non-exhaustive)
Deed establishment and amendment costs
Capital expenditure incurred in establishing the
structure for a regulated superannuation fund (eg.
purchase of a trust deed) is not deductible (see s40880(1), ATO IDs 2003/524 and 2003/525).
Typical expenditure that would be of a capital nature
and be non-deductible would include amendments
made relating to the cost of establishing a trust, executing
a new deed for an existing fund or amending a deed to
enlarge or significantly alter the scope of the trust’s
activities. However see Allowable deductions where such
costs may be deductible where they are incurred to
amend a trust deed to satisfy operational compliance (IT
2672) or to make the administration of the fund more
efficient (see TR 93/17).
Business capital costs
Section s40-880 allows deductions over a five-year
period for expenses incurred by taxpayers to establish
Certain tax-related expenditure is expressly not
deductible as specified in s25-5. The use of the words ‘to
the extent’ in s25-5(1) indicates that, where appropriate,
the expenditure has to be apportioned between
deductible and non-deductible items of tax-related
expenditure.
For example, capital expenditure is not deductible
under s25-5(4), although expenditure is not capital
expenditure merely because the tax affairs concerned
relate to matters of a capital nature.
In addition, the use of a capital asset for a tax-related
matter is treated as an income-producing use for the
purposes of the section except where another provision
of the ITAA97 or the ITAA36 specifically provides
otherwise (s25-5(5), (6)).
This means that expenditure incurred in purchasing
capital items for use in connection with a tax-related
matter is not deductible under s25-5(1), such as a
computer to assist the taxpayer in completing a tax
return (although s25-5(5) operates to allow depreciation).
Upfront investment-related expenses
Upfront fees incurred in investing money are of a
capital nature and not deductible (see TD 95/60 and ATO
ID 2004/968). Instead, the up-front fees may form part of
the cost base for determining a capital gains tax liability.
In addition, seminar-type expenses may not be
deductible if the expenditure does not have a sufficient
connection with assessable income and is an investment
of capital made to prepare for the future commencement
of an investment business.
Legal expenses
The deductibility of legal expenses usually depends on
whether the expenses are of a capital or revenue nature
(see IT 2672).
Penalty items
The following super specific penalty items are not
deductible:
•
late payment penalties (s26-5)
•
late lodgement penalties (s26-90), and
•
the Super Guarantee Charge (SGC) (s26-95).
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Tax deductions for SMSFs
Payment of benefits
Benefits paid by complying SMSFs are not deductible
(s295-495 item 1). The term ‘benefits’ is intended to
cover any payments, whether lump sum, pension or
annuities to a member, the estate or dependants of a
deceased member, made by reason of the member’s
membership of the fund.
Trauma policy premiums
A ‘premiums basis’ deduction is not available under
s295-465 in respect of premiums paid by a SMSF for
trauma policies, as trauma policies fail to meet the
definition of a ‘death or disability benefit’. This issue was
considered in ATO ID 2002/371 under the former s279(1)
of the ITAA36.
Conclusion
The issues surrounding tax deductions can be
complicated for SMSFs.
Where appropriate, we
recommend that the services of a Registered Tax Agent
be sought.
Members of Taxpayers Australia can also utilise
our member helpline service on 1300 657 572. For
Superannuation Australia members, particularly SMSF
trustees and their advisers dealing with issues associated
with tax deductions, this helpline is available for a
purchase price of $55 per query or a block of five for
$220. n
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