Smsf Property

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ASIC has commenced proceedings in the Federal Court of Australia and obtained interim injunctions against Perth-based Superfunded Pty Ltd and its sole director, Mr Max David Goldenberg, of Currambine and its sole shareholder Mark Travis Goldenberg of Claremont.
The proceedings concern their promotion of a business that encourages people to set up self-managed super funds to invest in the Superfunded Loan Investment Trust, which lends money to home buyers for their house deposits.
Neither Superfunded nor the Goldenbergs holds an Australian Financial Services licence and ASIC alleges that Superfunded and the Goldenbergs are therefore unlawfully carrying on a financial services business.
On 9 November 2017, the Federal Court of Australia made the following interim orders:　
<ul>
<li>restraining Superfunded and the Goldenbergs from providing financial services;　</li>
<li>restraining Superfunded and the Goldenbergs from having access to client or investor assets;　</li>
<li>prohibiting advertising, promoting or marketing financial services or products in relation to the investors and potential investors of the Superfunded Loan Investment Trust;</li>
<li>for the preservation of assets; and</li>
<li>for financial disclosure.　</li>
</ul>
The interim orders will remain in force until further order. The matter has otherwise been adjourned to a date to be fixed with liberty to any party to apply to the Court on 24 hours' notice.
Mark Goldenberg is the Trustee of the Superfunded Loan Investment Trust.
Mark Goldenberg was permanently banned from providing financial services in May 2009.　
Mark Goldenberg was sentenced to three years' imprisonment in 2011 following an ASIC prosecution for misusing $1.5 million of investor funds for his own benefit.
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ASIC acts against the Goldenbergs SMSF scheme

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The Full Federal Court has handed down judgment in the appeal by Aussiegolfa Pty Ltd (in its capacity as trustee of the Benson Family Superannuation Fund (BFSF) which clarifies SMSF rules regarding the sole purpose test. 
The Court held that the primary judge was incorrect in concluding that the leasing of a property held by the sub-fund to a child of a member of the BFSF was a breach of the ‘sole purpose test’. 
It related to a $104,000 student residential property in Melbourne's Burwood.
DomaCom had entered into a leasing and managing authority with Student Housing Australia for the leasing of the Burwood Highway property. The first two longterm tenants of the studio apartment were persons unknown, and unrelated, to the Benson family, but then Student Housing Australia agreed to lease an apartment to a daughter of the Benson family with the lease at the same $869 monthly rental as had been paid by the first two tenants. 
The DomaCom chief Arthur Naoumidis has welcomed the decision.
"DomaCom is very pleased to have the court confirm that it was not a breach of the sole purpose test when a related party of the BFSF rented a property held by the DomaCom Burwood sub-fund.
"We believe that this finding, on its own, represents a milestone for the SMSF industry.” 
DomaCom supported the action against the Commissioner of Taxation in the Federal Court hoping a ruling would confirm that SMSFs can invest in property sub-funds where the tenant of the underlying property is a related party of the SMSF.
The court heard it was in 2015 that the Benson family fund made a decision to invest in student accommodation and other ‘relatively low-cost, relatively high-return’ opportunities through a DomaCom sub-fund with a return of approximately 6.5%.
The decision to lease the Burwood property to the daughter was not made until 2017.
The appeal judges' ruling noted four reasons why the finding made by the primary judge was in error.
But the Court also held that the primary judge was correct to conclude that the units held by Aussiegolfa Pty Ltd in a sub-fund of the DomaCom Fund constituted an investment in a ‘related trust’ of the BFSF. 
“In relation to the related trust determination, we are reviewing the comprehensive judgment with our lawyers and will make a further announcement about the effect, if any, of the decision on the DomaCom Fund.
The DomaCom Fund disclosure documents have been amended significantly since the Burwood sub-fund was created in 2015.
"Accordingly, we will analyse the effects of the judgment on sub-funds created using the current version of the DomaCom Fund constitution and disclosure documents," Arthur Naoumidis said.
"If our analysis determines that it is necessary, we will consider amending our constitution and disclosure documents to address this issue with respect to future sub-funds.” 
MT Flynn QC and Dr J Glover were counsel for Aussiegolfa Pty Ltd.
DomaCom launched Australia’s first online platform (registered as a managed investment scheme) to provide a property investment solution for the SMSF market and other long term investors through the fractional acquisition of units in a unique trust structure that enables investors to gain exposure to the property they select.
<div title="Page 2">
Residential and commercial property Australia wide can be accessed in this fund, sourced from a variety of vendors and developers.
DomaCom is Australia's leading property crowdfunder. It allows anyone to <a href="https://www.urban.com.au/expert-insights/77398-crowdfunding-into-property" target="_blank">invest a little or a lot</a> into property investment. 
</div>
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jrobinson-rf4aSBido9

DomaCom win Federal Court battle in SMSF breakthrough

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With changes to the superannuation system coming up on July 1 property investors need to review their circumstances.
They need to plan ahead to sell their property and contribute it into their superannuation.
Starting on July 1, the maximum you can contribute personally to superannuation (after-tax) will be $100,000 a year, or $300,000 averaged over three years.
Higher limits of $180,000 a year or $540,000 over three years apply now.
<img src="https://res.cloudinary.com/dz9xllyip/image/fetch/c_scale,w_580,q_auto:good/https://s3-ap-southeast-2.amazonaws.com/po.images/2017/05/01/gold%20egg.jpg" alt="">
These changes will affect people who own real estate through a self-managed super fund (SMSF) especially retirees whose property supports pension payments.
Other groups might also be impacted by these changes, however each individual is different and it is advisable to seek individual advice.
For more information download the PDF <a href="https://www.propertyobserver.com.au/images/stories/marketing/ebooks/super-changes-ebook.pdf" target="_blank">here</a>.
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What the July 1, 2017 super changes mean for property investors: Property Observer free eBook

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ASIC and the ATO have advised they will have an increased focus on property one-stop-shops.
This will include sharing data and intelligence, and ASIC taking enforcement action where it sees unscrupulous behaviour.
More than 590,000 SMSFs hold assets worth nearly $697 billion, which is 30% of funds held in superannuation.
Gaining control over their investments is a key motivation for consumers to set up an SMSF with recent years seeing a growing interest in using SMSFs as a vehicle for investing in property.
The extra eye over one stop property shops was announced when ASIC revealed around 90% of financial advice on setting up a self-managed super fund (SMSF) did not comply with relevant laws.
ASIC today released Report 575 SMSFs: Improving the quality of advice and member experiences and Report 576 Member experiences with self-managed superannuation funds.
ASIC reviewed 250 client files randomly selected based on Australian Taxation Office (ATO) data and assessed compliance with the Corporations Act’s ‘best interests’ duty and related obligations.
ASIC Deputy Chair Peter Kell said the standard of advice on SMSFs must improve.
"A healthy and robust SMSF sector is an important part of our super system.
"However, it is clear lots of people are setting up self-managed super funds without knowing whether this is the best option.
"The financial advice sector has significant work to do to lift their performance on this issue."
The interviews also identified a growing use of 'one-stop-shops' where the adviser has a relationship with a developer or a real estate agent whose products the person is encouraged to invest in.
"This put people at increased risk of getting poor advice that did not take account of their personal circumstances or is not given in their best interests," ASIC found.
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jchancellor-FAypfDUnLy

ASIC and ATO to have increased focus on property one-stop-shops offering crook SMSF advice

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The Full Federal Court has handed down judgment in the appeal by Aussiegolfa Pty Ltd (in its capacity as trustee of the Benson Family Superannuation Fund (BFSF) which clarifies SMSF rules regarding the sole purpose test. 
The Court held that the primary judge was incorrect in concluding that the leasing of a property held by the sub-fund to a child of a member of the BFSF was a breach of the ‘sole purpose test’. 
It related to a $104,000 student residential property in Melbourne's Burwood.
DomaCom had entered into a leasing and managing authority with Student Housing Australia for the leasing of the Burwood Highway property. The first two longterm tenants of the studio apartment were persons unknown, and unrelated, to the Benson family, but then Student Housing Australia agreed to lease an apartment to a daughter of the Benson family with the lease at the same $869 monthly rental as had been paid by the first two tenants. 
The DomaCom chief Arthur Naoumidis has welcomed the decision.
"DomaCom is very pleased to have the court confirm that it was not a breach of the sole purpose test when a related party of the BFSF rented a property held by the DomaCom Burwood sub-fund.
"We believe that this finding, on its own, represents a milestone for the SMSF industry.” 
DomaCom supported the action against the Commissioner of Taxation in the Federal Court hoping a ruling would confirm that SMSFs can invest in property sub-funds where the tenant of the underlying property is a related party of the SMSF.
The court heard it was in 2015 that the Benson family fund made a decision to invest in student accommodation and other ‘relatively low-cost, relatively high-return’ opportunities through a DomaCom sub-fund with a return of approximately 6.5%. 
The decision to lease the Burwood property to the daughter was not made until 2017.
The appeal judges' ruling noted four reasons why the finding made by the primary judge was in error.
But the Court also held that the primary judge was correct to conclude that the units held by Aussiegolfa Pty Ltd in a sub-fund of the DomaCom Fund constituted an investment in a ‘related trust’ of the BFSF. 
“In relation to the related trust determination, we are reviewing the comprehensive judgment with our lawyers and will make a further announcement about the effect, if any, of the decision on the DomaCom Fund.
The DomaCom Fund disclosure documents have been amended significantly since the Burwood sub-fund was created in 2015.
"Accordingly, we will analyse the effects of the judgment on sub-funds created using the current version of the DomaCom Fund constitution and disclosure documents," Arthur Naoumidis said.
"If our analysis determines that it is necessary, we will consider amending our constitution and disclosure documents to address this issue with respect to future sub-funds.” 
MT Flynn QC and Dr J Glover were counsel for Aussiegolfa Pty Ltd.
DomaCom launched Australia’s first online platform (registered as a managed investment scheme) to provide a property investment solution for the SMSF market and other long term investors through the fractional acquisition of units in a unique trust structure that enables investors to gain exposure to the property they select.
<div title="Page 2">
Residential and commercial property Australia wide can be accessed in this fund, sourced from a variety of vendors and developers.
DomaCom is Australia's leading property crowdfunder. It allows anyone to <a href="https://www.urban.com.au/expert-insights/77398-crowdfunding-into-property" target="_blank">invest a little or a lot</a> into property investment. 
</div>
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DomaCom secures stronger SMSF footing after Federal Court decision

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ASIC has permanently banned Perth-based adviser Phillip Emidio Bruni from providing financial services.
This follows an ASIC surveillance of advice provided by Mr Bruni when he was an authorised representative of Westpac and The Financiallink Group.
In the course of the surveillance, ASIC became aware that Mr Bruni had been dishonest and engaged in misleading or deceptive conduct including by retrospectively creating advice documents and reproducing a client’s signature.
ASIC reviewed meta data from Mr Bruni’s advice documents and found that in response to statutory notices, Mr Bruni had created replicas of statements of advice documents that he was required by law to create and retain but had not.
Additionally, Mr Bruni attempted to cover up his failure to obtain a signed ‘authority to proceed’ from a client. He copied and pasted his client’s signature from a ‘fact-find’ document (which outlines a client’s circumstances and needs) without the client’s consent or approval.
Mr Bruni did not tell his licensee or ASIC that the documents produced to ASIC were not copies of original documents. He only admitted to creating the replica documents and the ‘authority to proceed’ when questioned by ASIC.
ASIC’s review also found that Mr Bruni had failed to give appropriate advice or provide advice documents to his clients. He also failed to act in the best interests of his clients or to prioritise their interests.
When providing advice, Mr Bruni did not objectively assess the information provided by his clients or tailor his recommendations to their circumstances. For example, in relation to property investment through an SMSF, Mr Bruni did not make adequate inquiries to assess if an SMSF was indeed appropriate or whether his client could undertake the role of an SMSF trustee. 
Additionally, Mr Bruni could not demonstrate that he had investigated alternative products or strategies that could help his clients achieve their goals. He also failed to provide information to his clients about the costs, benefits and consequences of his recommendations, which would have helped them make better informed decisions.
ASIC Commissioner, Danielle Press said ASIC’s decision reflects its expectation that financial advisers uphold the attributes of honesty and professionalism in their work. 
“Providing false evidence to ASIC under any circumstances is a breach of the law and will not be tolerated. ASIC expects advisers to adhere to the law at all times and meet their obligations of providing appropriate advice that is in the best interests of their clients” Ms Press said.
Mr Bruni’s banning is part of ASIC's Wealth Management Project, which focuses on the conduct of Australia’s largest financial advice licensees – NAB, Westpac, CBA, ANZ, Macquarie and AMP. ASIC was notified of Mr Bruni’s misconduct by Westpac.
As part of its Wealth Management Project, ASIC has banned 55 advisers and one director from the financial services industry. Four bannings are the subject of appeal.
Mr Bruni has the right to appeal to the Administrative Appeals Tribunal for a review of ASIC’s decision.
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