22 Feb Buying direct internationally property using your Super

Increased share market volatility, along with falling interest rates, has seen self-managed super fund (SMSF) trustees focus more and more on the benefits of investing their Super into direct property. In addition, the high Australian dollar has sparked interest in investing in overseas property.

While buying direct property is becoming increasingly more popular, international property investing comes with additional risks and complexities. In this article we will explore the key considerations for SMSF trustees investing and identify some of the additional risks involved in buying overseas property using a SMSF.

While the SIS legislation does not prevent trustees from buying property overseas, as with any SMSF investment, the trustee needs to ensure overseas property is a good fit with the overall investment strategy and that it complies with the superannuation rules.

Like domestic residential real estate the overseas property cannot be acquired from a related party (ie, the trustees can not buy from themselves, a family member or family entity) and there is a limit on how much can be invested in related party assets, known as the “in-house assets rule”.

While these restrictions apply to all assets, there are additional legal considerations to consider when considering investing into direct international property using your super.

Here are some of the major considerations:

1. No charge over the property

It can sometimes be difficult to obtain documents confirming no charge is in place over a property in countries where there is no register of property titles.
If someone has a legal charge over a property as security for a loan, they have the right to recover any losses from the property should there be a default on the repayments. Most modern mortgages over registered land take the form of a legal charge.

2. Entity that holds the property

In several countries, a foreign entity such as an SMSF cannot hold property directly. A possible option may be to establish a local entity that purchases the property with the SMSF owning all the interests in the entity. If structured this way, the assets of the owning entity would generally be restricted by the super law to the property and a bank account.
Even this simple requirement might be an issue as the bank account needs to be with an entity that is classified as an ADI by the Australian Prudential Regulation Authority. Of course, not all foreign banks would meet this condition. Failing this aspect would mean the entity is in an ‘in-house’ asset and the SMSF would only be able to invest 5 per cent of its market value in the entity.

3. Different laws and customs

The laws and customs of the country where the property is located also need to be carefully considered. Applicable tax and landlord/tenant laws can raise issues: for example, in some US states, authorities have the power to sell property where there are outstanding fees.

4. Payment of taxes

The investment entity itself may need to be a taxpayer in the foreign country, so who will ensure that the appropriate returns are lodged and taxes are paid?
This will mean that additional tax specialist assistance will be required by the SMSF, probably based in the country where the asset is located.

5. Local real estate agent

It is expected that the property would receive rent and the SMSF would pay for all expenses in relation to the property. However, doing this from Australia would be impractical, particularly if an overseas bank account is established. A locally-based real estate agent could run an account for the SMSF, with rent and expenses going via this account. In this scenario the trustees will need to ensure regular statements are received, and that an agreement is in place covering how frequently net proceeds will be transferred into the SMSF.

6. Foreign currency

The trustees of the SMSF need to consider the risks associated with fluctuations in the value of foreign currency and exchange rates. All superannuation assets need to be converted into Australian dollars for financial statements, so movement in the exchange rate may result in variation. These variations could in turn have impacts on other superannuation calculations such as member balances and minimum pension levels. Additionally, care would need to be taken when considering the tax treatment on profits that may result from currency movement.

7. Restricted Lending

The increased demand for direct property as an investment inside of a SMSF has been fuelled mainly by the changes to the SIS legislation that enables trustees of a SMSF the capacity to enter into limited recourse borrowing arrangements to fund the purchase of a single acquirable asset. For direct property outside of Australia you can not gain access to such borrowing arrangements which means you need to fund 100% of the purchase price. The restriction on borrowing means for the majority of SMSF, international property is out of reach.

8. Sovereign risk

The final consideration is the question of sovereign risk. Just as can happen in Australia, a foreign government can change the rules in relation to taxation or foreign investment. The implication of these changes may mean that the ownership of the foreign property is no longer tenable. In fact there is even the possibility of the foreign regime resuming ownership of their domestic assets from foreigners without compensation.
While the law does not prohibit investing in overseas property, ss you can see, there are many things trustees must consider before purchasing an overseas property within their SMSF.
In summary, it is possible for an SMSF to purchase overseas property, but the trustees will need to consider and address the risks and practical issues that result from the transaction.

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