Beware the loan trap for SMSFs chasing high yields

Trustees of self-managed super funds are increasingly putting their retirement savings in jeopardy by granting high-risk, high-interest loans to unrelated businesses in an effort to boost returns in a low-interest environment.

Chris Malkin, senior consultant auditor with Baumgartner Superannuation, suspects that many of the SMSF trustees granting these commercial loans do not understand the extra risks and legal complications involved.

“Some funds are effectively turning themselves into lenders of last resort,” Malkin says. “High-interest, high-risk loans are hardly appropriate investments for super funds.”

Typically when SMSFs strike difficulties with lending money, the loans have been made to related parties. However, a recent Federal Court case highlights the potential extra risks for super funds when making high-interest loans to unrelated parties.

In the case of Pozzebon (Trustee) v Australian Gaming and Entertainment Ltd (in liquidation), a husband-and-wife SMSF agreed in December 2013 to grant a $250,000 secured loan to a Perth-based business, which had agreed to provide security over corporate assets. Five months later, the company went into voluntary liquidation.

The SMSF then claimed that the liquidated company owed the fund $348,713 – $98,713 higher than the amount of the initial loan.

However, the Federal Court ruled the SMSF was an unsecured creditor after finding the fund had not registered the “security interest” on the relatively new Personal Property Securities Register within the required time.

Stuart Jones, author of the Australian Superannuation Handbook 2014-15, says: “The Pozzebon case serves as a warning to SMSF trustees chasing a higher yield that commercial loan investments are intrinsically problematic for most trustees in terms of the skills required to assess and manage the additional risks in such loans.”

Martin Murden, a director of SMSF consulting and auditing with the Partners Wealth Group, says his annual auditing of SMSFs show more funds are granting high-interest commercial loans. And he expects this trend to grow during the current financial year.

Murden believes that most of the SMSFs being drawn into investing in high-interest, high-risk loans already hold a high proportion of their assets in fixed interest and have become dissatisfied with prevailing interest rates.

He says such SMSF trustees typically don’t want to invest in residential real estate because of their concerns about a property bubble yet find the share market too volatile.

Stuart Jones of Thomson Reuters says there is nothing under the Superannuation Industry (Supervision) Act (SIS) to prohibit an SMSF from investing in a loan to an unrelated borrower.

However, Jones says the loan would still need to comply with SIS investment rules including the sole-purpose test, trustee duties, arm’s length dealings and mandatory investment strategy. (Under the sole-purpose test, a super fund must be maintained for the purpose of providing retirement or death benefits to members.)

“The risks associated with a commercial loan would also need to be suitable as part of the fund’s written investment strategy,” Jones stresses. “Therefore, at minimum, a trustee considering an investment loan would need to establish a detailed risk-management plan for the life of the loan.”

Jones says if an SMSF trustee is going to “make loans like a bank”, it needs to assess the loan application and take security, ideally real estate, “like a bank”. This would typically require specialist and accounting advice to assess the loan investment and to ensure security for the loan or priority status among creditors in the event of a default.

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