On the 14 September 2011 the ATO issued draft ruling SMSFR 2011/D1.
The draft ruling contains some important clarifications of key concepts where there was quite some uncertainty, including:
- that a “single acquirable asset” can include one building across multiple titles or multiple titles that must be sold together (for example a strata lot and its separately titled car park);
- borrowed money can be used to maintain and repair an asset owned in a borrowing trust, but not to improve an asset;
- money from the fund’s resources can be used to improve an asset owned in a borrowing trust, provided the work does not fundamentally change the nature of the asset;
- when an asset owned in a borrowing trust is damaged (for example by flood or fire) it can be repaired, provided the work does not fundamentally change the nature of the asset.
There are still restrictions in the ATO’s view on the amount an asset owned in a borrowing trust can be improved before it becomes a fundamentally different asset. Subdivisions and new buildings are likely to be beyond what is allowed.
The draft ruling is very useful in making the ATO’s position on a number of fundamental areas clear. This draft ruling provides for more practical solutions than had previously been the case and will make the structure more attractive in some situations.