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Dear Sir/Madam,
Can I provide more information for my questions on 05/06/2023
1/ The Unit Trust set up since May 2006 . Firstly, the trustee is personal name of the wife who hold 2/3 units and she holding property A in personal her name until now
Is at that time the law allow title property in personal name of trustee of unit trust ? The title show only personal name , not .........ATF Unit Trust . So now do I need ask the Nomination form or please guide me what document I need ask for know the property A is belong Unit Trust? if client do not keep docs for a long time what another way I can find out to know the property A is belong Unit Trust?
2/In 2009 this Unit Trust removed the wife trustee and appointed the husband name is new trustee of Unit Trust ( not company trustee) . He owner the property B since 2018 in personal his name until now . Can he put the property B into Unit Trust without change title holder name? please show me what docs need for audit?
3/ Accountant email me that the property A was removed account and property B is under Unit Trust but there is no provide any docs for transfer out or transfer in . I did not see pay stamp duty in bank statement of unit trust .
4/ The property B is the house . If the Unit Trust ( not SMSF) transfer in from the property B (husband name) into the unit trust , whether also breach Sec 66 ?
5/ Property A is existing in the wife personal name owner , they do not do transfer
I am wondering If the land tax do not show the property A involved the unit trust
whether any breach super law for this case as SMSF only hold 1/3 units of this trust ?
Please help me
Much appreciate for your help
Hi Phuong
Ownership of property rules in Australia differ based on state the property is in.
As an example in Victoria a property owned by a Trust would be in the name of the trustee or trustees of the trust. The trustee or trustees would / should have notified the State Revenue Office (SRO) that the property is held on behalf of a trust.
Yes you would need to request paperwork that supports that the property is held by the trustee on behalf of the trust.
Normally the auditor would do a title search if property owned by a Fund or by a Trust and request a statement (or declaration) that the property is held in the name of the trustee or trustees on behalf of the Fund or Trust.
Re question 2 re transferring a property to a trust using Victoria as an example you would need to advise SRO that the Trust now owns the property. You would normally need a lawyer to do the transfer to the Unit Trust and advise on any stamp duty payable. For audit you would need to request paperwork to support the legal transfer of the property to the Trust.
Re the property A being removed from the Trust you would need to determine if transferred at market value and whether the accounting & tax return for the Trust has been correctly prepared. Again for audit you would need to request paperwork to support the legal transfer of the property from the Trust.
If a Super Fund invests in a related Unit Trust under the "ungeared unit trust" rules under Reg13.22C of SIS one of the requirements is that the Unit Trust cannot acquire an asset:
"from a related party of the superannuation fund after 11 August 1999, unless the asset was business real property acquired at market value".
That is re question 4 there may be a breach of SIS if the Unit Trust is a related Trust and it has acquired a residential property (that is not business real property) from a member of the Fund.
The issues you are raising are complicated so they need to be carefully reviewed. The in-house asset / related party rules are also complicated in relation to a divorced spouse (that is not a member of the SMSF) so this will need to be considered as well.
Thanks
SMSF AAA