Our recent article on the proposed Division 296 tax has sparked some discussions, particularly as to whether benefits should be taken out and, if so, when they should be taken out.

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).

Members and trustees of self managed superannuation funds (SMSFs) will sometimes become estranged because of disputes involving their family or business relationships.

In the 2023-24 Budget, the Government announced that the super guarantee framework will be reformed to align the payment of super guarantee contributions with an employee’s regular pay cycle, instead of the current quarterly requirements. 

The exposure draft legislation for the new ‘Payday Super’ rules has now been released, with consultation open until 11 April 2025.

The super guarantee charge, payable where employers fail to make contributions in full and on time, will be updated, including a new ‘administrative uplift’ component of up to 60% of the shortfall amount.

In the decision of QWYN and Commissioner of Taxation (Taxation and business) [2025] ARTA 83 the Administrative Review Tribunal (ART) has determined that regular disability payments described as a superannuation income stream was a superannuation income stream for tax purposes and not a number of (more tax concessionally treated) disability lump sums.

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