This query is 2 parts all paid from the SMSF.
The initial situation here is that $75,000 was paid 1.8.2020, then a period of time went past and a further $25,000 was paid 1.10.2020 to an unrelated individual and said to be a loan covered under a loan agreement dated 29.7.2020 which contains both above amounts and their dates. Is it the legal case that each tranche of money paid should be covered under a separate agreement?
The second situation directly relates to the first and is where after this first agreement was signed, a further $100,000 was paid to same unrelated individual on 15.10.2020 & another $100,000 again on 15.12.2020. But this time, all the amounts loaned to this unrelated individual total $300,000 ($100,000 from the first loan then $200,000 from this loan) and are inserted into an "amended" $300,000 loan agreement dated 8.10.2020 - which "replaces" the original agreement as stated in its amendment clauses.
In summary what i really want to know:
Seems strange that the above is being done where they lend a large sum of money and say its covered under an agreement but then later lend more significant amounts of money and just say its really all together just in separate lots and here is a new amended agreement to effectively replace and invalidate the first. Is this even legally allowed?
Hi Mark
There are no legal rules that require exactly how loan agreements need to be prepared for SMSF's. From a SIS perspective the main requirement is that they are prepared on an arm's length and commercial basis as per section 109 of SIS.
If the initial agreement can be amended and further money is lent and a new agreement (or amendment) is prepared my view is that this will be acceptable as long as it has been done on an arm's length and commercial basis. For the loan agreement to be done on an arm's length basis you would need to consider factors such as:
1) Is an arm's length interest rate being charged?
2) Is there security in place re the loan?
3) What is the term of the loan?
4) What due diligence has been done in relation to the borrower and their ability to repay the loan?
5) Is the loan to a related party?
6) Does the loan comply with the Fund's investment strategy?
It would be great to get other forum members views on this query.
Thanks
The Auditors Institute