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Categories | SMSF cases & decisions

NALI –– unit trusts and draft LCR 2019/D3

SMSFs, employee share schemes & NALI

Acquiring shares under an employee share scheme (ESS) via your self managed superannuation fund (SMSF) may appear attractive but greater uncertainty has arisen following the ATO’s recent ruling, LCR 2021/2, on the application of the non-arm’s length income (NALI) rules to such a transaction. This ruling focuses on NALI arising from the non-arm’s length expenditure [read more]

DBA Lawyers –– the best BDBN is now even better

SMSF Wills versus BDBNs — what is best?

Overview SMSF Wills have become a topical issue in recent times as some claim they have certain advantages over binding death benefit nominations (BDBNs). This article briefly examines SMSF Wills and compares them to BDBNs. In broad terms, it is DBA Lawyers’ view that SMSF Wills are subject to significant legal risk, and therefore, we [read more]

LRBAs — current tips and traps

What’s the dividing line between NALI and a contribution?

The ATO issued its comprehensive ruling, TR 2010/1, on what constitutes a contribution to a superannuation fund in February 2010. A revised draft for consultation of TR 2010/1-DC (DC) was issued on 28 July 2021 reflecting changes as a consequence of the ATO’s views provided in Law Companion Ruling (LCR) 2021/2. LCR 2021/2 confirmed the [read more]

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Two AAT decisions on what constitutes business real property

Two recent AAT decisions shed important light on what constitutes business real property: Allzams Trust and Commissioner of Taxation [2021] AATA 2767 and Allen and Commissioner of Taxation [2021] AATA 2768. Both cases involved a disappointed taxpayer seeking a review by the Administrative Appeals Tribunal of a decision of the Commissioner of Taxation. These decisions [read more]

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SMSF seminars for CPA Australia

Bryce Figot is excited to soon be presenting a series of three and half hour seminars for CPA Australia in various locations in regional Victoria. They should be great seminars. These seminars will cover and explore: latest cases; legislation; regulatory developments; and other tips and traps. To register, or for more information, visit: For Traralgon (Tuesday [read more]

Close up of typewriter and Deed of trust

Hill v Zuda Pty Ltd [2021] WASCA 59 — how long can a BDBN last for in ALL Australian jurisdictions?

The Western Australian Court of Appeal recently handed down its decision in Hill v Zuda Pty Ltd [2021] WASCA 59. It provides a strong answer to the question of how long a binding death benefit nomination can last for in ALL Australian jurisdictions. Facts Ms Hill was the only child of Alec Kumar Sodhy (Deceased). [read more]

Close up of typewriter and Deed of trust

Variation powers — lessons from Re Owies Family Trust [2020] VSC 716

Key facts The case of Re Owies Family Trust [2020] VSC 716 (Owies) provides many lessons for trustees and advisers dealing with discretionary trusts. This article focuses on one key issue raised in Owies, being the limited variation power that did not allow for a number of purported variations. Owies involved a dispute between the [read more]

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Merchant and Commissioner of Taxation [2021] AATA 915 – surprise risk to SMSF acquiring listed shares

The AAT yesterday handed down a decision regarding the disqualification of trustees or responsible officers of corporate trustees of superannuation entities. See Merchant and Commissioner of Taxation [2021] AATA 915. The decision involves Gordon Merchant, who appears to be the same Gordon Merchant as the founder of the famous Australian surf company Billabong. Facts The [read more]

Business man pointing to transparent board with text: Valuation

Coronica v FCT — latest Tribunal decision provides important tips regarding valuations and related party acquisitions

Earlier today the Administrative Appeals Tribunal (Tribunal) handed its decision in Coronica and Commissioner of Taxation (Taxation) [2021] AATA 745. It resulted in the Commissioner’s decision to make an SMSF non-complying being affirmed. The decision is lengthy (103 pages) and covers many interesting issues. In this article, we focus on one particular issue: valuation of [read more]

Law Concept - Open Law Book With A Wooden Judges Gavel On Table

G v G (No. 2) [2020] NSWSC 818 — implications for fiduciaries dealing with super

The recent New South Wales Supreme Court decision of G v G (No. 2) [2020] NSWSC 818 (G v G) provides important guidance on the limitations that apply to trustees and managers of protected estates in dealing with superannuation investments, including in relation to making super contributions and binding death benefit nominations (‘BDBNs’). In this [read more]