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Hi,
I am auditing a fund that holds an overseas property (Thailand).
The fund has a corporate trustee. The property was purchased in the name of the individual member, per purchase contract, and not in the name of the corporate trustee ATF SMSF.
I have obtained an acknowledgement of trust (not declaration of trust but rather an acknowledgement of trust) stating the individual purchased the property on behalf of the fund and holds the property on trust for the fund. This is a signed and witnessed document.
Is this sufficient evidence to support that the property is held by the SMSF and satisfied separation of assets rules?
If not, what else could serve as sufficient evidence?
1.There needs to be a declaration of trust 2. Title can be verified from the purchase transaction. 3.Overseas government agencies does not recognise Australian SMSF structure therefore, title of the property will either be in the name of the individual member/ trustee or jointly held by them. 4. Residential property cannot be purchased from, or leased to, a related party of the fund - such as a family member. 5. Foreign investment just like all other investments, needs to be allowed under the fund’s trust deed and investment strategy. 6. Documents relating to the property that are not in English, such as the contract of sale, registration of ownership and lease agreement must be translated to comply with the Australian superannuation and taxation legislation.
Just a quick question on above coments, If there are two trustee directors whether the property document only on one trustee director's name with written acknowledgement that it is held under trust on behald of SMSF will suffice??
Same for Overseas shares holding - if investment is on one trustee director's name with acknoledgement in writting that these are held in trust on behalf of SMSF will be enough evidence to prove asset separation???
Just curious, do we receive a title search for overseas property similar to Australia? How will we verify the charge over the asset in this case?
Hi Jason
I have seen this in a similar example where a SMSF purchased a property in Bali. The SMSF had a corporate trustee however the title to the property had to be held in individual names because of Indonesian rules. A bare trust was established as the property had to be held in individual names. Lawyers recommended a bare trust in this example.
In your example it is a positive that they have done an acknowledgement of trust. In my view this should be sufficient to support that the property is held by the SMSF and satisfied the separation of assets rules assuming that in Thailand the title has to be in individual names.
If other forum members have a view, please let the forum know.
Thanks
The Auditors Institute