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SMSF Succession Diagnostic Service

By on 01/12/2023 in Corporate trustees, Pensions, SMSF deeds, SMSF strategy, Succession planning, Taxation, Trustee education

Many SMSF members do not plan ahead in relation to what is to happen with their superannuation upon loss of capacity, death or other relevant life events. Indeed, in DBA Lawyers’ experience, a considerable proportion of SMSFs have outdated, inappropriate or no succession plans in place. Unfortunately, such lack of planning can give rise to [read more]

Changing SMSF trustees — why advisers should be more alert to the tips and traps

Change of SMSF trustees can easily be messed up

By on 29/11/2023 in Corporate trustees, SMSF cases & decisions, SMSF compliance, SMSF deeds, SMSF strategy, Succession planning, Trustee education

This article examines some of the key issues that can arise when change of trustee documents are not properly completed, and by the right people using quality document suppliers. What happens if a change of trustee is not properly completed? A change of trustee requires compliance with the provisions in the fund’s governing rules and [read more]

Deed of Trust

Lost deed case – Lawyer gives expert evidence on likely terms of missing trust deed

By on 21/11/2023 in Corporate trustees, SMSF cases & decisions, SMSF compliance, SMSF strategy, Trustee education

The case of Northgate Park v Floyd [2022] VSC 783 (Northgate Park) provides an interesting development in how courts may approach the issue of a lost trust deed. Northgate Park represents a less strict approach to determining the terms of a trust where a deed is lost. Facts Northgate Park resulted out of other litigation [read more]

court

Re Rentis Pty Ltd [2023] QSC 252 — Court considers attorney power to ‘renew’ a BDBN

By on 20/11/2023 in Corporate trustees, SMSF cases & decisions, SMSF compliance, SMSF strategy, Succession planning, Trustee education

The case of Re Rentis Pty Ltd [2023] QSC 252 (Re Rentis) provides a helpful interpretation of an attorney’s powers to make a binding death benefit nomination (BDBN). This case examines the meaning of a term often found in enduring powers of attorney (EPA) and provides an expansive view of an attorney’s powers to make [read more]

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NALE changes introduced as Bill on 13 September 2023

By on 22/09/2023 in Corporate trustees, Pensions, SMSF strategy, Taxation, Trustee education

On 13 September 2023, Treasury Laws Amendment (Support for Small Business and Charities and Other Measures) Bill 2023 (Cth) was introduced into the House of Representatives (NALE Bill). The NALE Bill provide guidance on changes to the non-arm’s length expense (NALE) provisions introduced in s 295-550(1)(b) and (c) of the Income Tax Assessment Act 1997 [read more]

Street Sign the Direction Way to Pleasant versus Nasty

Firms providing discounted SMSF services to staff need an appropriate discount policy ASAP

By on 31/08/2023 in ATO, Corporate trustees, SMSF compliance, Trustee education

It is critical that firms providing discounted SMSF services to staff, including partners, shareholders and office holders, take action as soon as practicable to ensure they have an appropriate discount policy in place. If a firm’s discount policy is not in line with the ATO’s position in Law Companion Ruling LCR 2021/2, this is likely [read more]

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Watch out for extra transfer duty on property investments via a company or unit trust

By on 30/08/2023 in Corporate trustees, Investments, Taxation, Trustee education

Overview Structuring property investments via a company or unit trust may give rise to landholder duty for non-related investors as highlighted in Oliver Hume Property Funds (Broad Gully Rd) Diamond Creek Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2023] VCAT 634. This decision resulted in an additional $151,235 of duty plus interest [read more]

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How the NALI provisions and the CGT provisions interact: draft ATO determination provides important guidance (TD 2023/D1)

By on 25/08/2023 in ATO, Corporate trustees, SMSF cases & decisions, SMSF compliance, SMSF strategy, Taxation, Trustee education

There has been uncertainty as to how the following two provisions interact: (1) the non-arm’s length income (NALI) provisions in s 295‑550 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997); and (2) the Capital Gains Tax (CGT) provisions in s 102‑5 of the ITAA 1997. The ATO has recently released Draft Taxation Determination TD 2023/D1. [read more]

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New SMSF case demonstrates how not to have non-arm’s length income

By on 16/08/2023 in ATO, Audit, Corporate trustees, SMSF cases & decisions, SMSF compliance, SMSF strategy, Taxation, Trustee education

A recent AAT decision illustrates the sorts of evidence that might be necessary in order for an SMSF to not have non-arm’s length income (NALI). Accordingly, advisers working with SMSFs should pay close attention to this decision and the evidence that an SMSF should collect and retain. The decision is BPFN and Commissioner of Taxation [read more]