Pioneering thought — Sladen Legal

Binding Death Benefit Nominations and Reversionary Pensions

Binding Death Benefit Nominations and Reversionary Pensions

This paper was presented by Phil Broderick to The Eighth Annual Estate Planning Conference Television Education Network, held on 21 March, 2014.

This paper addresses the use of BDBNs and reversionary pensions and the interaction between the two. It also examines a number of strategies relating to their use.

This paper concentrates on the use of BDBNs and reversionary pensions in relation to self managed superannuation funds (SMSFs), although other superannuation funds are looked at, including public offer super funds.

An A to Z of Limited Recourse Borrowing Arrangements

An A to Z of Limited Recourse Borrowing Arrangements

This paper was presented by Phil Broderick on the Television Education Network Webinar held on 12 February, 2014.

The purpose of this paper is to give a broad overview of the law in relation to super fund borrowing (also referred to as limited recourse borrowing arrangements and LRBAs). After a brief review of the background to the introduction to the New Law, this paper will broadly look at the lifecycle of a LRBA.

Breaking News: Discussion Paper on Division 7A

Breaking News: Discussion Paper on Division 7A

The Board of Taxation released its Second Discussion Paper on Division 7A of the Income Tax Assessment Act 1936, on 25 March 2014.

Division 7A taxes notional distributions (by way of loans, payments or forgiven debts) from, private companies (which are taxed at the rate of 30%) to shareholders and associates (who are taxed at higher marginal tax rates) as unfranked “deemed dividends”. Division 7A also operates where private company assets are used by shareholders and associates, and where a trust has an unpaid present entitlement (UPE) owing to a private company (directly or indirectly through one or more interposed entities), and makes a payment or loan to, or forgives a debt owing by, a shareholder (or an associate of a shareholder) of the private company.

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Sladen Snippet – Fed Court overturns special circumstances finding of AAT

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Sladen Snippet – Fed Court overturns special circumstances finding of AAT

The Federal Court has overturned one of the few AAT cases that found special circumstances exist for an excess contribution assessment. In FCT v Dowling there were two relevant contributions. First, a non-concessional contribution of $156,142 made by the taxpayer’s husband in the 2009 year for the purposes of increasing his age pension entitlement. This contribution was made as a result of free advice from Centrelink and a public offer super fund. The contribution triggered the bring forward rule for the taxpayer. Second, a $200,000 non-concessional contribution in the 2011 year under a recontribution strategy which caused the taxpayer to exceed her non-concessional cap under the bring forward rule.

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Sladen Snippet - ATO Decision Impact Statement on the control of a trust

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Sladen Snippet - ATO Decision Impact Statement on the control of a trust

On 19 March 2014, the ATO issued its decision impact statement (DIS) on the AAT decision in Gutteridge & Anor v FC of T 2013 ATC.

In that case, a trust made capital gains from the sale of business assets and the taxpayers, Mr and Mrs Gutteridge, sought to apply the small business capital gains tax concessions when taxed on the capital gain. The Commissioner, in applying the $6 million maximum net asset value ("MNAV") test held that the trust was controlled by the taxpayers’ daughter who was the sole director and shareholder of the corporate trustee, and included the values of the assets held by a company also controlled by her on the basis that it was “connected with” the trust. As a consequence, the trust failed to satisfy the MNAV.

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Sladen Snippet – SMSF penalty/direction/education regime to apply from 1 July 2014

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Sladen Snippet – SMSF penalty/direction/education regime to apply from 1 July 2014

The SMSF administrative penalties, rectification directions and education directions regime is now law (via the Tax and Superannuation Laws Amendment (2014 Measures No. 1) Act 2014). From 1 July 2014, the ATO will have the power to: - issue scaled penalties to SMSF trustees for breaches of the SIS Act (in addition to the power to make a SMSF non-compliant); - order SMSF trustees/directors to attend education courses if they have breached the SIS Act; and - order SMSF trustees to rectify breaches of the SIS Act. The Bill also introduces penalties to deter and penalise persons who promote illegal early release schemes from regulated superannuation funds.

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Sladen Snippet – Separation of SMSF assets - ATOID 2014/7

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Sladen Snippet – Separation of SMSF assets - ATOID 2014/7

As we previously identified (see http://tinyurl.com/mgl5z7b) the operating standard compelling SMSF trustees to hold their assets separately is a limited obligation due to the wording of the standard in regulation 4.09A of the SIS Regs. The obligation only prevents mixing of the trustee’s personal assets or those held by a standard employer sponsor (or associate of the employer sponsor).

Stronger Super and SMSFs – SuperStream update

Stronger Super and SMSFs – SuperStream update

In our previous articles on Stronger Super and SMSFs, we outlined how the SuperStream measures would affect SMSFs and that some of those obligations would commence from 1 July 2014. Subsequently, the Australian Taxation Office (ATO) has released further information, including a letter to SMSF trustees, outlining the SuperStream compliance obligations for SMSF trustees.

Comprehensive credit reforms

Comprehensive credit reforms

As part of the reforms to the Privacy Act 1988 Update on the Australian Privacy Principle Guidelines and Changes to the Privacy Act - Ensuring the fine print is not forgotten, credit reporting in Australia will be regulated by a new Part IIIA of the Privacy Act. This will be accompanied by a new Credit Reporting Code which will replace the existing Credit Reporting Code of Conduct.

This new regime comes into effect on 12 March 2014 with the aim to simplify, clarify and update the current credit reporting provisions.  The new regime will affect most industries.