The recent decision by the QLD Supreme Court in Williams v Robba illustrates the importance of conducting a ‘claim-staking process’ to demonstrate that an SMSF trustee has given real and genuine consideration in exercising its discretion to pay superannuation death benefits.

Many will be familiar with the use of bare trusts by SMSFs as part of a limited recourse borrowing arrangement (LRBA), but there are other ways in which an SMSF might invest via a bare trust, providing different structuring opportunities. This article considers the use of ‘non LRBA bare trusts’ by SMSFs and the superannuation law implications.

New Division 296 tax, as outlined in a Treasury Fact Sheet, includes two indexed thresholds ($3 million and $10 million) and taxation on realised (not unrealised) earnings from 1 July 2026. However, critical details about how realised earnings will be calculated—particularly regarding pre-1 July 2026 gains—remain unclear.

#superannuation #SMSF #tax #Div296 #totalsuperbalance #$3million #unrealisedgains #10million

Division 296 tax to be amended to remove taxation of unrealised capital gains, according to a media release by Federal Treasurer Jim Chalmers.

#superannuation #SMSF #tax #Div296 #totalsuperbalance #$3million #unrealisedgains

This article is the third in a three-part series setting out practical solutions to common issues in super, tax and estate planning, with a particular focus on the tax impact of payments to beneficiaries.

Part 3 of our series looks at the tax issues which should be considered when paying death benefits in specie, including capital gains tax and the super ‘death tax’.

#superannuation #SMSF #deathtax #deathbenefits #estateplanning #deathbenefitdependant #CGT #inspecie #BDBN

This article is the second in a three-part series setting out practical solutions to common issues in super, tax and estate planning, with a particular focus on the tax impact of payments to beneficiaries.

This article is the first in a three-part series setting out practical solutions to common issues in super, tax and estate planning, with a particular focus on the tax impact of payments to beneficiaries.

Part 1 of our series looks at how withdrawing super benefits before death can form part of a member’s overall estate planning.

The Australian Taxation Office (ATO) has made it clear: when a self managed superannuation fund (SMSF) receives services or assets on non-commercial terms - or fails to incur necessary expenses - the result can be harsh. Non-arm’s length expenditure (NALE) can trigger nonarm’s length income (NALI), exposing the fund to significant tax consequences.

With the recent Labor election victory, and a potentially friendlier Senate, it is likely that the proposed Division 296 tax of an additional 15% on members with a $3 million or more total super balance (not indexed) will be enacted. See here for our previous commentary on the measure.

The Board of  Taxation (BOT) has recently released its report on the taxation of digital taxes – Review of the tax treatment of digital assets and transactions in Australia. This includes a section, from page 155, on whether crypto assets should receive the “trading stock” exemption.

As noted in part 1 of our articles on the application of the Bendel decision to the Superannuation Industry (Supervision) Act 1993 (SIS Act), in our view, it is likely that the Courts will apply the Bendel decision to the SIS Act, such that the expanded definition of loan in the SIS Act will apply to arrangements that involve the advancement of principal with an obligation to repay and that it will not apply to a mere creditor and debtor arrangement.

As noted in part 1 of our articles on the application of the Bendel decision to the Superannuation Industry (Supervision) Act 1993 (SIS Act), in our view, it is likely that the Courts will apply the Bendel decision to the SIS Act, such that the expanded definition of loan in the SIS Act will apply to arrangements that involve the advancement of principal with an obligation to repay and that it will not apply to a mere creditor and debtor arrangement (like a UPE).

In this part 3 of the series we examine how this may play out in the in-house asset rules contained in Part 8 of the SIS Act.

As noted in part 1 of our articles on the application of the Bendel decision to the Superannuation Industry (Supervision) Act 1993 (SIS Act), in our view, it is likely that the Courts will apply the Bendel decision to the SIS Act, such that the expanded definition of loan in the SIS Act will apply to arrangements that involve the advancement of principal with an obligation to repay and that it will not apply to a mere creditor and debtor arrangement (like a UPE).

As discussed here, the recent decision of the Full Federal Court (Court) in FCT v Bendel [2025] FCAFC 15 (Bendel) has been a significant one in the private tax world.

Given this is a superannuation conference, most of the presentations will be dealing with the uses of, and issues with, superannuation and self managed superannuation funds (SMSFs).

Division 296 tax, the proposed new $3 million super fund tax on unrealised gains, did not pass in the Senate yesterday, 13 February 2025.

Division 296, if passed, would impose an additional 15% tax on members with a $3 million or more total super balance (not indexed).

Division 296 is now unlikely to be put to the Senate before an election, and is expected to become a key election issue.

#division296 #$3million #unrealisedgains

What happens if the former trustee of an SMSF is still the registered proprietor of an SMSF property and goes into administration? This issue was considered in the decision of Re Absolute Vision Technologies Pty Ltd (subject to deed of company administration) [2024] NSWSC 1010 (13 August 2024). There, the Court ordered that a contract be completed where the former trustee entered into a contract of sale of real estate (Suite 901) notwithstanding it was in administration.

At long last proposed regulations have been released for consultation that would permit the conversion of legacy pensions and reserves over a 5 year period. As a nice added bonus, the regulations will also better allow allocations from non-pension reserves.

In the decision of In the matter of Gainer Associates Pty Limited [2024] NSWSC 1138, the Court amongst other things gave advice that the self managed superannuation fund (SMSF) corporate trustee (Gainer Associates Pty Ltd – referred to as Gainer) could be indemnified from the assets of the SMSF in relation to all issues disclosed to the Court in that application for judicial advice.

In this six part series on the decision of In the matter of Gainer Associates Pty Limited [2024] NSWSC 1138, we’ll examine various aspects of this case.