According to the latest Australian Taxation Office, the number who exceeded the tax concessional and non-concessional limits increased significantly to more than 45,300 during the 2009-10 financial year, 2.6 times more than the 17,250 who made this mistake during the previous year.

An important year

The 2011-12 financial year is the important one as far as avoiding immediate and future problems is concerned. It’s a special year because the majority of excess contributions could be entitled to a one-off refund entitlement that will be available to those who exceed the tax concessional contributions limit by less than $10,000.

(That it could apply to the majority is suggested by the fact that both the average and the median excessive liabilities were below $10,000.)

The tax-concessional contributions limits for 2010-11 are $25,000 for those under age 50 and $50,000 for those 50 and over, the same as it was in 2009-10, although that particular year was significant in that it coincided with a halving of the contribution caps that applied from July 2009. Prior to this date the limits had been $50,000 for those under age 50 and $100,000 for those 50 and over.

Black Saturday

An immediate trap for DIY super contributors is the fact that June 30, 2012, falls on a Saturday.

In the DIY super fraternity, this has particular relevance for those who make last-minute contributions.

One of the major risks in such contributions is missing out on the June 30 deadline, an issue highlighted by an Administrative Appeals Tribunal decision handed down last month where a DIY super fund member made $60,000 of concessional contributions on behalf of himself and his spouse via an electronic funds transfer on Saturday, June 30, 2007 without being aware that banks process such transfers only on business days.

Missed the boat

As a result the contribution was not credited to the bank account of the super fund until the following Monday.

In this case, says Day, the ATO assessed the contribution as being made in the 2007-08 financial year instead of the 2006-07 financial year.

As a result, the member ended up exceeding his concessional cap in 2007-08. This, in turn, triggered an excess contributions tax liability of about $17,000.

The matter was taken to the Administrative Appeals Tribunal after the member unsuccessfully asked the Tax Office to exercise special circumstance discretion and allow the contribution because he believed it was OK as it was made on June 30.

Court holds firm

But the AAT agreed with the ATO that special circumstances did not apply as it was the normal practice of banks to process electronic transfers only on business days and that the member should have realised a transfer request effected on the Saturday would not be completed until the following Monday.

While the member may have intended the contribution to be made on June 30 by recording a transaction on this day, the fact was that the transaction was not completed until July 2, which tipped the contribution into the following year.

Day says given June 30 this year is also a Saturday, those with DIY funds must be aware they should avoid last-minute contributions.

Watch the clock

Furthermore, if they want to contribute via electronic funds transfer, they should check the normal processing times with their financial institution and contribute with plenty of time to spare.

Source: Financial Review Smart Investor, written by John Wasiliev

Rising confidence in the US economy and liquidity injections from the major central banks spurred on a rally in global equities over the quarter. Locally, the S&P ASX200 Index rallied by 6.9%, slightly underperforming global indices.

In the US, the strong momentum at the end of 2011 carried over into the first quarter of 2012. Conditions in the labour market picked up strongly since late last year, with an increasing number of jobs being created. Personal consumption expenditure continued to improve over recent months supported by an expansion in credit and a fall in the savings rate. However, for consumer spending growth to be sustainable, we think there needs to be improvement in income growth, which has been subdued. In addition, the consumer remains debt constrained and is unlikely to increase debt without the support of income growth. Fiscal spending over recent years has supported growth, but is likely to become a drag on growth in the years ahead as the US government works on reducing its debt position. Overall, we continue to expect economic growth to be relatively weak.

In Europe, the ECB’s liquidity injections via its long-term refinancing operations carried out in December and early March have prevented an immediate banking crisis. Liquidity in the European banking system has improved and sovereign bond yields, in particular Italy and Spain, have declined from the peak levels reached late last year. However, underlying activity in the euro area continued to deteriorate as euro area GDP fell by 0.3% in the last quarter of 2011. The unemployment rate remained stubbornly high at 10.8% in February. Of particular concern is the high youth unemployment rate in Spain and Greece at around 50%. The outlook for the euro area appears bleak, particularly in the periphery countries which are likely to remain in recession throughout 2012 due to the fiscal austerity measures currently in place.

In China, monetary tightening and weaker demand from developed economies started to weigh on China’s economy. GDP growth slowed from previous quarters, expanding at an annual rate of 8.9% in the fourth quarter. Export growth slowed over recent months due to weak demand from Europe and Asia. Inflationary pressures continued to ease over the quarter due to a fall in food inflation.

In Australia, economic growth over the next few years is expected to be underpinned by the large investment pipeline in the energy and resources sectors. Much of the benefits are yet to flow down to the broader economy, with current conditions uneven across sectors and regions of the economy. Weakness in sectors such as manufacturing, tourism, education and retail continue to persist due to the high level of the Australian dollar against most major currencies. Consumer sentiment surveys indicate that households remain concerned about their finances. This is reflected in the change in household spending behaviour, with households choosing to save more and pay down debt. If weakness outside the mining sector persists, it is likely that the RBA will reduce the cash rate to provide some support.

To read more, click here for a PDF version of this report: Quarterly Economic and Market Commentary

Wayne R Morgan B.Sc. (Hons), Grad. Dip. App. Fin & Invest, F Fin, FPA(Aff)

Managing Director and Representative

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David Court outlines some common queries that arise out of the new rules for SMSF investment in personal use assets.

The investment by a self-managed superannuation fund (SMSF) in an asset that has potential for personal use by a member of the fund creates tension with the overriding requirement that the sole purpose of the fund must be for providing a retirement benefit to members.

It has been generally accepted by the regulators that the sole purpose test allowed for the personal use of assets if that use was ‘incidental’ or ‘ancillary’ to the purpose of providing for retirement benefits.

Accordingly, many SMSFs have invested in assets such as artwork or sporting club memberships that provided ‘incidental’ benefits to members such as interior decoration for a member’s private residence or the ability of the member to play a round of golf.

The Cooper Review expressed concerns in relation to the use of such assets, and recommended that investment in them be banned.

In response, the Government introduced new rules for investment in personal use assets which took effect from 1 July 2011.

While the new rules do not impose an outright ban on the acquisition of personal use assets, they impose requirements that raise significant practical and cost issues for any SMSF trustee proposing to invest in such assets.

Here are some common queries that arise out of the new rules.

Which funds do the rules apply to?

The new rules apply only to SMSFs. Accordingly, they do not apply to those superannuation funds regulated by the Australian Prudential Regulation Authority rather than the Australian Taxation Office.

The rules apply regardless of whether the SMSF has full or partial ownership of the relevant asset.

What assets are covered?

The type of assets covered is set out at length in the legislation.

In general terms, it includes artwork and similar artefacts, currency and medallions, postage stamps, rare books, memorabilia, wine or spirits, motor vehicles, recreational boats and membership of sporting or social clubs.

While there are no specific exclusions, there are asset types which are amenable to personal use that are not mentioned.

Horses, bicycles, industrial machinery, commercial fishing vessels and specialised off-road commercial plant and equipment could also be of personal use, but seem to fall outside of the listed asset types.

Can an SMSF still buy a personal use asset?

The new rules do not prevent the purchase of personal use assets by the trustee of an SMSF.

However, any purchase (and subsequent leasing of the asset) would need to comply with the general investment rules, including:

• Meeting the sole purpose test;
• Acting in the best interests of members;
• Complying with the fund’s investment strategy;
• Purchasing the asset on arm’s length terms;
• Not acquiring the asset from a related party.

A personal use asset could also be the subject of a limited recourse borrowing arrangement if the trustee wanted to fund the purchase through borrowing.

Before purchasing a personal use asset, the trustee will also need to consider the effect of the specific restrictions and obligations which are discussed below as they will impact materially on the purchase decision.

What can’t a trustee do?

A personal use asset cannot be:

• Leased to a related party;
• Stored in the private residence of a related party (but it could be stored at the business premises of a related party or offsite storage facilities owned by a related party);
• Used by a related party (and note that use includes ‘displaying’ the object).

Somewhat strangely, therefore, an artwork can be stored at the business premises of a related party, but only as long as it is not ‘displayed’.

However, a wine collection could not be kept at the private residence of a related party – even if that person had state-of-the-art cellarage facilities.

The new rules also prevent any incidental or ancillary use of the asset, which may make it difficult to provide the asset with ongoing care.

For example, keeping a motor vehicle ‘run in’ can now only be performed by a non-related party to the SMSF.

What must a trustee do?

The new rules impose a number of obligations on the trustee of an SMSF that holds a personal use asset:

• Any decision made by the trustee relating to the storage of the asset must be in writing and kept for 10 years;
• The asset must be insured in the name of the SMSF within seven days of acquisition (unless the asset is a sporting or social club membership);
• If the asset is to be sold to a related party, then the price must be the market price determined by an independent valuation.

It seems, theoretically at least, that the trustee is not forced to make an active decision relating to the storage of the asset.

However, a physical object must be located somewhere, and presumably, failure to store the asset properly could be attacked by the regulator as a breach of the trustee’s statutory covenants to act prudently and in the best interests of members.

Who is a related party?

A related party is, essentially, a member of the SMSF, a wide range of their relatives and various legal entities that the members of the fund control.

What if an SMSF already holds personal use assets?

Transitional arrangements apply to the new rules so that personal use assets held at 30 June 2011 do not come within the new arrangements until 30 June 2016.

However, trustees are cautioned to give early consideration to the revised usage, storage and insurance requirements that they will need to meet in 2016.

Not only may it take some time to put these arrangements in place, but it also may take some time to dispose of personal use assets if the trustee no longer wishes to hold such assets after 1 July 2016.

Practical problems

The new rules, while not prohibitive of the holding of personal use assets, create strong disincentives to SMSF trustees wishing to hold such assets.

Practical problems will arise from the need to make storage, usage and insurance arrangements that accord with the new rules.

Those services might be difficult to obtain – either at all, or at an affordable price – and are likely to make the holding of low value personal use assets unattractive to SMSF trustees.

However, where a high value personal use asset that is a genuine investment proposition is involved, then the storage, usage and insurance requirements of the new rules would seem largely to be the type of actions that a prudent trustee would be expected to take, in any event.

Source: Money Management, written by David Court

Related party transactions continue to represent a challenging issue for SMSF trustees.

In the December 2011 National Tax and Liaison Group (NTLG) Superannuation Technical Sub-Group meeting, the Australian Taxation Office (ATO) was asked two key questions regarding SMSFs and related party builders, and the application of section 66 of the Superannuation Industry Supervision (SIS) Act.

Ordinarily, SMSFs are prohibited from intentionally acquiring assets from related parties.

The ATO confirmed this in the December 2010 NTLG Superannuation Technical Sub-Group meeting, saying in cases where an SMSF engaged a related party to construct a building on land owned by the SMSF, it must be clear the related party provides building services only, and not any materials if a section 66 breach is to be avoided.

During the December 2010 meeting, the question was raised whether the supply of goods and materials from a related party agent would avoid a breach of section 66.

The appointment of an agent would typically involve the SMSF trustees appointing the related party as their agent by a variation to the building contract or under a deed of agency agreement.

The agent would acquire the goods and materials then invoice the trustee for the cost of the purchase either on a progressive basis or once the work has been completed.

The cost of services provided may be invoiced separately or together with the cost of goods and materials.

The invoiced cost of the goods and materials may be increased by a profit margin charged by the related party builder.

As an alternative, a new bank account could be opened in the name of the builder and the builder executes a deed of bare trust, confirming that it holds the bank account on bare trust for the SMSF trustee and that all things purchased with the bank account proceeds belong to the SMSF.

Funds are then transferred from the SMSF to the bank account and neither the builder nor any other entity puts any money in the bank account.

The builder buys building supplies using the bank account as directed by the SMSF trustee and those supplies are then affixed to the SMSF land.

The questions put to the ATO in the December 2011 meeting were:

1. Will the trustees of an SMSF breach section 66 of the SIS Act if the trustees appoint as their agent, a related party to purchase the goods and materials on behalf of the trustee and those goods and materials are used in the construction of a building on land owned by the SMSF?
2. Will the trustees of an SMSF breach section 66 of the SIS Act if the trustees execute a deed of bare trust to finance the purchase of goods and materials used by a related party in the construction of a building on land owned by the SMSF?

In response to the first question, the ATO stated that where a related party only acts as an agent, arranging for the acquisition of building materials on behalf of the SMSF trustee from an unrelated vendor and the related party at no times holds legal title to the building materials, the SMSF trustees have acquired the materials from that vendor, not the related party.

Therefore section 66 of the SIS Act would not apply to the acquisitions.

On the second question, the ATO said they did not believe that payment for the building materials out of a bank account which is held by the related party on bare trust for the SMSF will, of itself, cause a contravention of section 66 in respect of the acquisition of those materials.

As discussed in question 1 above, the application of section 66 will depend on whether the building materials are acquired by the SMSF trustee from the original suppliers, with the related party only acting as an agent, or whether the related party acquires the building materials in their own right which are then supplied to the SMSF trustee.

The above scenarios also apply to a property subject to a limited recourse borrowing arrangement where the SMSF trustee engages a related party to improve a property with the fund’s own assets.

Example 1

The Smith Superannuation Fund enters into a limited recourse borrowing arrangement to purchase a property.

The trustees decide to use the fund’s own resources to improve the property in line with Draft Ruling SMSFR 2011/D1.

The fund engages the services of one of the trustees – Richard – who is a qualified builder.

Richard uses his trade account to purchase the supplies required to undertake the improvements so the fund can utilise his trade discount.

The fund then reimburses Richard for the cost of these materials.

Subsection 66(1) of the SIS Act is contravened in the above circumstance, as the fund has acquired assets from a related party (Richard).

Example 2

Assume the same facts as example 1, but now the SMSF trustees appoint Richard as their agent, and Richard purchases the goods and materials on behalf of the SMSF trustee to improve the property.

The items are purchased in the name of the trustees of the SMSF from the SMSF bank account and at no time does Richard hold legal title to the building materials.

Richard does not use his trade account; therefore the fund does not receive any trade discount.

The SMSF trustees have acquired the materials direct from the vendor, not the related party.

Therefore section 66 of the SIS Act would not apply to the acquisitions.

Source: Money Management, written by Nicholas Ali

Edition 21 of ATO SMSF News

Welcome to the first issue of SMSF News for 2012.

We’re starting off the year with a big edition, including articles on the recently
released ATO super prosecution strategy, working overseas and making sure you
are involved in the decision making process when it comes to your SMSF.

Click here to read ATO SMSF Newsletter Edition 21

The number of individuals under the age of 45 establishing self-managed superannuation funds (SMSFs) shows no signs of abating, the latest SMSF statistical data issued by the Australian Taxation Office (ATO) indicates.

The figures for the 2011 December quarter showed 35.1 per cent of SMSFs set up during the period involved trustees in the aforementioned demographic.

This level of startups from this group was consistent with the March, June, and September quarters of last year that saw the under 45 age bracket contributing to 39.1 per cent, 34.1 per cent, and 37.6 per cent respective to the total SMSF establishment numbers.

Furthermore, the statistics show the appeal of setting up an SMSF is greater among women than men in this age category.

The ATO numbers revealed 24.3 per cent of the total SMSFs established by women came from individuals aged between 35 and 44. Men in the same age band accounted for 22.9 per cent of total SMSF establishments.

The trend was the same for women between 25 and 34 that accounted for 10.5 per cent of establishments compared to 9.1 per cent for their male counterparts.

The statistics lend support to the conclusion drawn from the research commissioned by the Self-Manged Super Funds Professionals’ Association of Australia (SPAA) and Russell Investments and conducted by Core Data that women will represent a large growth opportunity for SMSF advice in the coming years.

“Women are an inevitable growth segment for the SMSF sector in future,” SPAA chief executive Andrea Slattery said when presenting the results from the report, Intimate with Self-Managed Superannuation.

Outside of establishment rates, it was noted women are in general having more influence in the financial decision making of SMSFs.

Source: Investor Daily, written by Darin Tyson-Chan

For ATO Self-managed super fund statistical report – December 2011 please click here

The main reason for the recommendation is the alarmingly low level of life insurance inside SMSFs. Less than 13 per cent of SMSF members have life insurance.

This is significantly less than the levels of cover within traditional superannuation funds, where cover is often provided automatically.

Under current laws, SMSF trustees are not required to obtain any insurance cover for members, nor do they need to consider insurance as part of the fund’s investment strategy.

The proposal is that the Government will amend the superannuation law so that SMSF trustees must consider life and total and permanent disablement (TPD) insurance.

Although there is no commencement date for the proposal, SMSF trustees should review their investment strategy with regards to insurance in readiness for any change.

This can be considered as part of the member’s financial planning strategy, in association with any other current insurance they may have inside and outside superannuation.

Insurance cover taken out by the trustees of an SMSF can provide a valuable source of liquidity and the ability to pay increased benefits to fund members or their beneficiaries in the event of a member’s death or disability.

Another instance may allow an SMSF that has borrowed under a limited recourse borrowing arrangement to repay part or the entire loan in the case of the death or permanent disability of a member.

Case study

Noel and Nancy have $200,000 each in their SMSF. They use the $400,000 as equity to borrow $600,000 for $1million property.

In the event of Noel’s death, a $200,000 benefit must be paid (as a lump sum or pension), but the SMSF has no other assets. The property may need to be sold, which could be at a low point in the market.

Furthermore, transaction costs may be incurred in repaying the loan early. In effect, the investment strategy of building long-term wealth for the members has fallen into disrepair as no insurance has been taken out as a protection measure.

With prudent planning we can secure the outcome. Let’s assume in the event of death, the objective is to repay the SMSF borrowing and pay a net lump sum death benefit of $1million.

The SMSF purchases a $1.6million policy on each life. In event of death, the $600,000 SMSF borrowing is repaid and a $1million cash benefit can be paid (including $200,000 member balance).

The property can be retained as no forced sale is required. Including insurance as part of the fund’s investment strategy has allowed Noel and Nancy to achieve their objectives.

How is the insurance cover established?

Insurance held via an SMSF is owned by the trustee of the superannuation fund (ie, it is not owned personally).

When applying for cover, it is important to ensure the owner is clearly identified as the trustee, for example ‘John and Jane as trustees for the JJ super fund’ or ‘JJ Co. Pty Ltd as trustee for the JJ super fund’.

All SMSF assets, including insurance, must be kept separate from personal or business assets.

Insurance premiums can be paid using the fund’s cash balance or superannuation contributions/ rollovers.

What are the tax concessions?

While the focus should always be on the need for insurance, cover within an SMSF can provide valuable tax concessions.

For one, the SMSF trustee can generally claim a tax deduction on the insurance premium, excluding trauma cover.

In addition, superannuation contribution strategies (eg, salary sacrifice) can reduce the effective cost of cover by using pre-tax dollars.

Other strategies available include personal deductible contributions, co-contributions, spouse contribution tax offsets, and contribution splitting.

How can proceeds be accessed?

Upon successful claim, the insurance proceeds are received by the SMSF trustee. A payment can only be made to a member, beneficiary or the member’s estate if a condition of release is met.

A condition of release includes temporary disability, permanent disability or the death of the member.

The SMSF trustee is bound to make a decision as to whether a member meets a condition of release, just like all other fund trustees.

This requires the SMSF trustees to apply an appropriate level of due diligence, and ensure appropriate documentation is retained.

If a condition of release is met and the rules of the fund allow, the benefit may be paid from the SMSF in the form of a lump sum or income stream.

An income stream can be a very tax-effective option, particularly for eligible dependants, and it allows funds to remain within the SMSF environment.

Can a policy be transferred into an SMSF?

An SMSF cannot acquire an insurance policy from a member, or a relative of a member.

However, a policy can be terminated and a new policy issued on similar terms to be owned by the SMSF, provided there are no underwriting issues.

For some clients, having some or all of their insurance cover within their SMSF can provide valuable cash flow and tax advantages.

It should be borne in mind that using SMSF assets to purchase insurance may have the effect of reducing their account balances over time.

Insurance proceeds are able to increase the amount available to a member, dependants or their estate should something happen to them.

They can also be used to maximise the tax-effectiveness of insurance benefits, as the superannuation fund has access to special tax deductions for premiums which are not available personally.

Source: Money Management

The RBA unexpectedly kept the cash rate on hold at 4.25%. It seems that the Board took some comfort from the improvement in financial market sentiment since early December, primarily driven by the actions of policy makers in Europe. With growth expected to be close to trend and inflation close to target, the Board decided the current monetary policy was appropriate for the current environment. However, the Board noted that should demand conditions weaken materially, it will provide scope for easier monetary policy.

Press release

The chance of another interest rate cut by the Reserve Bank tomorrow is diminishing – potentially given major banks a break from a flurry of bad publicity.

Until last weekend, the odds were heavily in favour of the RBA making it three rate cuts in a row when its monetary policy board meets in Sydney.

Surprisingly strong jobs news from the US, though, and broad-based market rallies since the start of the year have given the central bank scope to delay another cut.

“People are looking at that data and saying the US labour market looks the best it has since the recession started,” said UBS interest rate strategist Matthew Johnson. “So, the case for the RBA to cut rates tomorrow is materially weakened.”

The US unemployment rate last month dropped to its lowest in almost three years, adding to recent signs that growth in the world’s biggest economy is accelerating. The RBA lowered interest rates in November and December to help bolster growth at home as worries about the state of the global economy prompt consumers and businesses cut back borrowing.

“In November and December markets were extremely volatile, confidence was very weak and there was a lot of uncertainty about the international situation,” said ANZ Bank head of economics Ivan Colhoun.

“The European and market situation has not continued to deteriorate significantly. In fact, markets are a lot calmer,”

Mr Colhoun said, adding that data on Australia’s mining investment boom show that it is accelerating.

“It may be we’ve seen the last cut unless Europe falls in a complete heap,” he said.

Each-way bet

Financial markets are basically hedging their bets that the RBA will leave rates on hold tomorrow.

As of this morning, the chance of the RBA will slice another 25 basis points off its cash rate to 4 per cent is about 52 per cent, according to cash-rate futures monitored by Bloomberg. That’s down from an 80 per cent chance on Friday.

Most economists are still tipping a rate cut tomorrow, according to a Bloomberg survey conducted last week – although that may change as analysts consider the US jobs figures.

Another signal of a shift in sentiment, though, is the local bond market this morning, which suggests the central bank is more likely to stay put.

The March 10-year bond futures contract was trading at 96.075 (implying a yield of 3.925 per cent), down from 96.235 (3.765 per cent) on Friday.

The March three-year bond futures contract was at 96.690 (3.310 per cent), down from 96.820 (3.180 per cent).

RBC Capital Markets economist Michael Turner agrees the case for an RBA rate cut has weakened over the past week.

Mr Turner is sticking to his prediction that the RBA will move tomorrow – but that the commercial banks won’t pass along the full reduction to borrowers.

“The RBA will prefer to be on the slightly easy side of neutral, which means 25 basis points of cuts from the RBA and 15 basis points of cuts from the banks,” Mr Turner predicts.

“Of course the arguments against the cut have strengthened over the past week or two,” said Mr Turner, who pointed to the stronger US jobs data, as well as a number of strengthening manufacturing indexes in the US and Europe.

Bank warnings

In recent weeks, commercial banks have grown increasingly adamant that they won’t pass along in full any cut in interest rates to borrowers. They argue that their own funding costs are largely independent of the RBA’s cash rate and they have an obligation to maintain profits for shareholders.

“Banks are conscious that the community is concerned that many people are doing it tough,” said Australian Bankers’ Association chief Steven Münchenberg late last week. “Banks also do not under-estimate the anger many borrowers will feel if all RBA rate cuts are not passed on.”

“For these reasons, banks have been absorbing the higher costs of bank funding for over six months now and have not passed these costs on to borrowers.”

“But banks need to balance the concerns of borrowers on the one hand, with the interests of lenders, including retail depositors and superannuation funds, on the other.”

Bank profits will probably re-emerge as a hot topic in coming days with National Australia Bank due to release its market update tomorrow. The Commonwealth Bank is also scheduled to release its half-year results next week.

Source: Chris Zappone, The Age- Business Day, Bloomberg

Malaysian authorities have  granted approval to Australian miner Lynas Corp to operate its 700 million ringgit ($A217 million) rare earth plant.

The Atomic Energy Licensing Board says it will grant Lynas a temporary operating license. It must submit plans for a permanent disposal facility within 10 months and make a $A47 million financial guarantee with the government. The approval on Wednesday eases uncertainty for Lynas and investors after speculation that the licence could have been rejected in the face of opposition from political parties and residents near the plant ahead of national elections expected within months.

The board warned on Wednesday that the licence can be revoked if conditions are breached.

“The temporary licence has been approved with conditions. If these conditions are not met, the temporary licence can be suspended or cancelled and subsequent applications for the licence will not be considered,” the atomic licensing board and the Ministry of Science said in a joint statement.

Source: The Age- Business Day, Reuters- Niluksi Koswanage

Click here to read Media Announcement from Lynas Corporation- AELB announces its approval of temporary operating licence