WHAT YOU NEED TO KNOW

It’s common for an SMSF to invest in a unit trust, entitling it to a distribution of the trust’s profits. Non-collection of the distribution could give rise to compliance issues, and we address those issues in this article.

TAXATION OF UNPAID PRESENT ENTITLEMENTS (UPE)

Where an SMSF holds units in a unit trust, and it’s entitled to a distribution from that trust, the assessable portion of that distribution is included as assessable income of the SMSF in the income year it’s in respect of. For example, where the SMSF has an entitlement to a distribution from the trust’s 2021-22 taxable income, the assessable portion of that distribution will need to be included as income of the SMSF in its 2022 SMSF annual return, even though some of the distribution may not actually be paid by the trust to the SMSF until after 30 June 2022.

Determining which income year a trust distribution is in respect of and, consequently, which year’s return it needs to be included in will be assisted by the annual tax statement provided by the trust. An annual tax statement will also give the assessable and non-assessable portions of the trust distribution and any tax credits to which the SMSF, as the unit holder, is entitled. For many trusts that have a small number of unit holders, rather than a formal tax statement, the SMSF unit holder may have access to and use the trust’s income tax return to determine the appropriate tax return amounts and the income year they relate to.

ACCOUNTING FOR TRUST DISTRIBUTIONS

An SMSF is not a reporting entity, and consequently, its accounting policies will be determined by its trust deed and the SMSF trustee(s). Such accounting policies should be disclosed in the summary of the significant accounting policy notes in the annual financial statements. Whilst many SMSF accounting and administration platforms may generate standard template accounting policy notes within the annual financial statements, these should be reviewed to ensure:

They do not conflict with the requirements of the SMSF’s trust deed;

It is common practice to account for trust distributions on a present entitlement basis, that is, they are recorded in the income year in which they are in respect of. However, suppose the accounting policy note in the annual financial statements states that trust distributions are accounted for on a cash basis. In that case, the accounting does not align with the policy. You should expect an audit query to be raised.

Where the present entitlement basis is used, there may be a distribution owing on the SMSF’s Statement of Financial Position, basically representing that portion of the distribution from the unit trust that is in respect of the income year, say 2021-22, but not paid by the end of the income year, 30 June 2022.

TIP: when recording the value of an SMSF’s units in a unit trust, ensure the correct June 30 unit price is used. Many unit trusts will provide a pre and post distribution price, and the correct one will depend on the accounting policy adopted.

NOTE: A SMSF that adopts the present entitlement basis for accounting for trust distributions should select the post-distribution unit price to value the units held in the unit trust on June 30. Using the pre-distribution price will result in a double up of the distribution owing on June 30.

SIS COMPLIANCE

Regardless of which accounting policy is adopted, there will be an unpaid present entitlement on June 30. Having an Unpaid Present Entitlement (UPE) on June 30 is not an SIS compliance issue in itself; it’s the collection of that entitlement or delays in the collection that can cause an SIS compliance issue.

If the SMSF makes no effort to collect on the distribution owing, then there could be compliance issues, mainly where the trust is a related or unit trust commonly referred to as a non-geared unit trust.

The ATO has SMSFR 2009/3 ruling, outlining their view on applying the SIS Act to unpaid trust distributions payable to an SMSF.

The ruling states: “Where an SMSF is presently entitled to a distribution from a related or non-arms length trust and payment of this amount is not sought, contraventions of one or more provisions of the SISA may occur.”

The ruling discusses three of the most relevant SIS Act provisions and identifies the circumstances where a contravention might occur. The three provisions are the following:

• in-house asset rules in Part 8
• arm’s length rules in section 109; and
• sole purpose test in section 62

The example used in the ruling involves an SMSF that has an entitlement to a distribution from a non-geared unit trust, a unit trust that satisfies the requirements in Division 13.3A of the SIS regulation not to be treated as an in-house asset despite it being controlled by the SMSF and its Part 8 associates. For the relevant income year, the SMSF is entitled to a distribution of $100,00, none of which was paid to the SMSF in that income year, so it was recorded as a distribution owing in the SMSF’s financial statements.

The distribution amount was unknown until the financial statements and tax return for the non-geared unit trust were prepared, which wasn’t until 30 April of the following year. However, once it was determined, the distribution was paid to the SMSF by the end of the next month.

An interpretation of the ruling, particularly that example, is that the distribution needs to be paid by the following 30 June. If the income year was the 2021-22 income year just gone, it should be paid to the SMSF, as a unit holder, by 30 June 2023; otherwise, we could have SIS Act compliance issues in one or more of the abovementioned provisions.

However, it should be considered that the period for payment is much narrower. From the time the SMSF’s distribution was determined to when it was actually paid was about thirty days. What if the 2021-22 financial statements and tax return for the non-geared unit trust were prepared in November 2022 and the amount of the distribution to be paid to the unit’s holders, including the SMSF, was known five months after 30 June 2022 – could you leave it to the following May or June to actually pay it, or would the ATO expect it to be paid by say, end of December?

A prudent approach would be that it is promptly paid once the entitlement amount is known. Payment could also be accomplished by way of re-investment back into the unit trust, subject to the SIS Act provisions, e.g., sole purpose test, investment strategy, and arm’s length rules.

WE’RE HERE TO HELP!

If you have any issues, questions or feedback regarding our monthly SMSF Bulletin or if you’d like clarification or further advice on the content of this month’s edition or any other SMSF audit concern – don’t hesitate to reach out to me at +61 416 123 446 or trosati@rosatiwang.com.