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DBA offers unique documentation to incorporate new companies or to upgrade existing company constitutions. DBA’s constitution offers many features not found in other constitutions.

Advantages for SMSF trustee companies

The DBA constitution allows for strategic SMSF planning possibilities while incorporating flexibility for the company to be used in non-SMSF roles (eg, trustee of a discretionary or unit trust, or if the company invests or trades in its own right).
Some of the features of the DBA constitution are as follows:

• DBA has the constitution with a high level of attention to the company’s role as an SMSF trustee, with many provisions to help protect the SMSF’s complying status which are simply overlooked in many other constitutions.
• Companies with the DBA constitution are eligible for the reduced ASIC annual fee of $42 (compared to $226.50 per annum) if the company acts as a sole purpose trustee of an SMSF.
• Directors have the ability to nominate a successor director to step in after the death of a director.
• Greater control is placed in the hands of the shareholders than many typical constitutions, which provides greater opportunities to plan control of the SMSF, both before and after death.
• The ability to issue ‘SMSF shares’, which helps to ensure the SMSF remains a ‘sole purpose company’ where applicable.
• The ability to include ‘guardian’ shareholders where there is a need for a guardian to step in and exercise greater control, eg, if there is particular risk of a family dispute.
• A handy ‘SMSF Guide’ which points to the relevant provisions of the constitution that specifically apply to SMSF trustees. This assists directors and advisers in the ongoing management of the company as the special requirements for SMSF trustees are unfortunately sometimes overlooked and inadvertently breached.
• The constitution does not require any amendment to adapt to the role(s) of the company as these change, unlike other constitutions which require costly amendment.

Advantages for all companies

The DBA company constitution can be used in non-SMSF trustee roles as well and, as described above, can switch between roles without the need for costly amendment.
Many of the succession planning advantages outlined above can also be utilised for trusts, investment companies and family businesses. For example, the ability to nominate a successor director to step in on the death of a director, the ability to include ‘guardian’ shareholders where there is a need for a guardian to step in and exercise control and the greater control placed in the hands of the shareholders provide clients with considerable opportunities for planning succession to and control of their company and/or trust.

Other features include:

• A Division 7A loan facility is included just in case a debit loan arises and to ensure a written loan agreement is in existence. The ATO’s Taxation Determination TD 2008/8 confirms that this can satisfy Div 7A. This assists in minimising the penalties that may otherwise arise.
• The constitution has flexibility to issue various share classes other than ordinary shares. This can allow planning for differentiated voting rights and rights to receive different dividends or capital upon winding-up. The default classes available are as follows:

	Right to vote	Right to dividends	Right to repayment of share price on winding-up	Right to distribution of surplus assets on winding-up SMSF
SMSF
Ordinary
Limited
Dividend Only
Guardian