While the government has confirmed CGT cap amounts will not be counted towards the non-concessional lifetime contribution cap, it is unclear whether part of a property can be transferred into an SMSF via the small business CGT cap as an in-specie transfer.

“There has been some uncertainty in terms of how the ATO would interpret this, so a lot of people have been writing in to the ATO to seek rulings on whether their in-specie contribution, instead of being a non-concessional contribution, can count against this lifetime [CGT] cap,” Mr Wynen told delegates at the CPA National SMSF Conference.

Mr Wynen, who has spoken with the ATO about various private binding ruling applications, said it is unlikely the tax office will allow this.

“The ATO, we understand, has effectively been sitting on those and we understand that they’re going to say no you cannot count part of that in-specie against your CGT cap,” he said.

“The reason for this is because the transaction you’ve got that’s generating the gain is also what you’re trying to argue is going into the fund under the CGT cap as well. So what that means potentially, is that you’ll generate the gain and then you’ll have to come up with additional cash to put into the fund.”

Mr Wynen said this would also be politically in line with the general restriction placed over super as well in terms of restricting the money that’s going into the fund.

The ATO, he said, will be providing guidance on the issue soon.