In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Daniel Butler, Director, discuss the upcoming appeal to the High Court to consider the decision of Hill v Zuda Pty Ltd [2021] WASCA 59 (Hill v Zuda).

In Hill v Zuda, the Western Australia Court of Appeal appeared to have settled the debate and confirmed that an SMSF BDBN can last indefinitely provided that the deed for the SMSF was written appropriately. The Court of Appeal stated in it’s decision that it was sound law “until such time as the decision is overruled by the High Court”. This decision will now go before the High Court who will ultimately decide whether a BDBN can be indefinite or whether it is subject to the Superannuation Industry (Supervision) Act and Regulations, requiring a BDBN to lapse after 3 years.

Zac and Dan discuss the possible outcomes of this appeal to the High Court and what it will mean for the SMSF industry if High Court overturns the decision in Hill v Zuda. They also discuss the importance of having quality documents that are prepared and signed off on by lawyers.

Bryce Figot, Special Counsel, will be presenting DBA Network Pty Ltd’s SMSF Online Update on 11 February 2022. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

High Court to decide how long can a BDBN last for!

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

SMSF Wills versus BDBNs — What is best?

The legal minefield of BDBNs (updated)

Reconciling inconsistencies between reversionary pension nominations and BDBNs

Advantages of the DBA Lawyers SMSF deed (2021-22)

Recent webinar on best practice for advisers with BDBNs

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Daniel Butler, Director

30 November 2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Bryce Figot, Special Counsel, discuss the recent VCAT decision D’Arcy v Emergency Services Superannuation Board (Review and Regulation) [2021] VCAT 952 (D’Arcy) and also discuss the upcoming Director Identification Number (DIN) requirements and what that means for company directors.

Zac and Bryce briefly discuss the recent changes being introduced that require all company directors in Australia to obtain a DIN. The key dates to be aware of are summarised below:

All directors appointed on or before 31 October 2021 must obtain a DIN by 30 November 2022.

All directors appointed between 1 November 2021 and 4 April 2022 will either need to apply for a DIN 28 days after becoming a director or obtain a DIN prior to becoming a director.

All directors appointed from 5 April 2022 must obtain a DIN prior to becoming a director.

Zac and Bryce also discuss the recent VCAT decision of D’Arcy which involved a question as to whether a siblings that had a interdependent relationship could receive a partner pension as a superannuation death benefit. While this matter dealt specifically with Victorian state legislation and a state based superannuation scheme, there are some interesting findings in this decisions and lessons to learn about the drafting of SMSF deeds.

Bryce will be presenting DBA Network Pty Ltd’s SMSF Online Update on 12 November 2021 and will be covering the latest in non-arm’s length income, recent DIN changes, lost deed cases plus more. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

Director identification numbers needed soon

ABRS – Who need to apply and when

ATO — Modernising Business Registers

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Bryce Figot, Special Counsel

28 October 2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and William Fettes, Senior Associate, dive into the history of BDBNs and discuss some common BDBN strategies as well as practical tips and traps to be aware of.

Zac and Will  discuss where the term ‘BDBN’ originated from and where it derives its technical meaning. With respect to SMSFs, a BDBN is a product of the deed and the governing rules set out in the deed.

Zac and Will also discuss the importance of a fund’s full document trail with respect to BDBN strategies. If there are deficiencies in a fund’s document trail, this may possibly render a BDBN and other strategies invalid. Accordingly, the integrity of the fund’s full document trail is a relevant factor when preparing BDBN strategies as well as other succession planning strategies.

Finally, Zac and Will answer some frequently asked questions about BDBNs and discuss some of the common problems that are observed when reviewing BDBNs.

William will be presenting DBA Network Pty Ltd’s SMSF Online Update on 8 October 2021 and will be covering the topic of BDBNs in more detail. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

DBA Lawyers the best BDBN is now even better

The legal minefield of BDBNs updated

SMSF wills versus BDBNs what is best

Reversionary pension v BDBN which one wins

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and William Fettes, Senior Associate

30 September 2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Shaun Backhaus, Senior Associate, discuss the latest changes contributions, super guarantee (SG) changes and the need to review and update salary sacrifice arrangements.

Zac and Shaun discuss the recent ATO publication CRT Alert 009/2021 that allows individuals to re-contribute amounts withdrawn under the COVID-19 early release of super scheme without them counting towards their non-concessional contributions cap.

Zac and Shaun also discuss the importance of reviewing salary sacrifice arrangements in light of the recent SG changes and the increase in concessional contribution cap. The recent changes means that many employers with existing salary sacrifice arrangements could have fall short in paying their employees the SG minimums. It is important that employers review salary sacrifice arrangements to ensure that there is no shortfall, as the consequences for not paying the SG minimums are serious and include hefty penalties.

Finally, Zac and Shaun discuss how super contributions can be paid for children under the age of 18.

Shaun will be presenting DBA Network Pty Ltd’s SMSF Online Update on 10 September 2021 and will be covering contribution strategies, recent changes plus more. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

CRT Alert 009/2021

Contribution reserving — are you aware of all the risks?

Salary sacrifice amounts and SG changes

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Shaun Backhaus, Senior Associate

30 August 2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Daniel Butler, Director, discuss the latest changes for SMSF rollovers, salary sacrifice arrangements and the importance of having an SMSF deed prepared by a qualified lawyer.

Zac and Dan discuss the latest in changes for SMSF rollovers. From 1 October 2021, most SMSF rollovers will be via the SuperStream electronic exchange data and payment system apart from in specie and partial rollovers. Rollovers from an SMSF to other superannuation funds (eg, retail and industry superannuation funds) and from other superannuation funds to an SMSF must be processed via SuperStream. SMSF rollovers will also be subject to the strict time frames that apply to rollovers in the Superannuation Industry (Supervision) Regulations 1994 (Cth) which may prove to be problematic for SMSFs.

Zac and Dan also discuss the importance of reviewing salary sacrifice arrangements in light of the recent increase in concessional contribution cap and super guarantee changes .

Finally, Zac and Dan discuss the importance of having an SMSF deed prepared by a lawyer and some of the features of the latest DBA Lawyers SMSF deed.

Dan will be presenting DBA Network Pty Ltd’s SMSF Online Update on 6 August 2021 and will be covering the latest non-arm’s length income ruling recently published by the ATO LCR 2021/2. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

What to do about defects in SMSF deeds: a chain is only as strong as its weakest link

SMSF deeds: how does your supplier rate?

Advantages of the DBA Lawyers SMSF deed (2021-2022)

Contribution reserving — are you aware of all the risks?

Salary sacrifice amounts and SG changes

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Daniel Butler, Director

30 July  2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Bryce Figot, Special Counsel, discuss what is new in the world of pensions following the Federal Budget announcements on 11 May 2021.

Bryce shares some practical tips for commuting and restarting a pension prior to or on 1 July. Bryce also discusses the legislative fix to assist those seeking to rollover death benefits in order to start a pension.

Zac and Bryce also discuss the latest changes to legacy pensions announced in the Federal Budget for 2021-2022. Broadly, the changes will ‘allow individuals to exit a specified range of legacy retirement products, together with any associated reserves, for a two-year period’ and that ‘[t]he allocations and the commuted reserves will be taxed as an assessable contribution.’

Bryce will be presenting DBA Network Pty Ltd’s SMSF Online Update on 9 July 2021 and will be covering the latest in pensions, changes for legacy pensions plus much more. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

Budget impact on legacy pensions

Proposed ECPI changes have some advantages

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Bryce Figot, Special Counsel

30 June  2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Daniel Butler, Director, discuss non-lapsing BDBNs and the special tax treatment of SMSFs.

Zac and Dan discuss non-lapsing BDBNs and examine the recent case of Hill v Zuda [2021] WASCA 59. Importantly, this case upheld prior decisions that confirm that the 3-year sunset rule on BDBNs does not apply to SMSFs .

Zac and Dan also discuss the special tax treatment of an SMSF and in particular, examine capital gains, property development and pensions.

Dan will be presenting DBA Network Pty Ltd’s SMSF Online Update on 4 June2021 and will be covering maximising contributions, contribution reserving, year end tax planning, recent cases plus much more. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

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

The legal minefield of BDBNs

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Daniel Butler, Director

31 May 2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Shaun Backhaus, Lawyer, discuss SMSFs investing in unit trusts including 50-50 unit trusts and non-geared unit trusts (NGUT).

Unit trusts are a popular investment vehicle for SMSFs as it allows for SMSFs to enter into investments with both related and unrelated parties. There are various risks that must be managed when an SMSF invests in a unit trust and these are often overlooked. In this episode of the podcast, Zac and Shaun give a broad overview as to what some of the most common traps are and how the risks can be mitigated.

Zac and Shaun also discuss the relevant tests to ‘delicately’ manage with a 50-50 unit trust such as the control and sufficient influence test, the requirements that must be continually met for a  NGUT, as well as how a unitholders agreement can be a used to govern the terms between the unitholders in a unit trust.

Shaun will be presenting DBA Network Pty Ltd’s SMSF Online Update on 7 May 2021 and will be covering SMSF and Bankruptcy plus much more. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

SMSFs and 50-50 Unit Trusts

Trustee and unitholder liability in unit trusts

SMSFs investing via unit trusts

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Shaun Backhaus, Lawyer

30 April 2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and William Fettes, Senior Associate, discuss family law superannuation splitting in respect of SMSFs.

Where a relationship breakdown occurs, special attention must be given to the splitting of the superannuation benefits as there are quite a number issues to consider. In this episode, William provides a brief overview of how superannuation splitting works in the context of SMSFs.

Zac and William discuss the different approaches to superannuation splitting orders (eg, base amount or percentage interest split) and how a combination of the approaches can be used in order to achieve the desired outcome. They then discuss what can go wrong when planning a superannuation split, the consequences of not complying with a splitting order and briefly discuss other tax and CGT considerations.

They also address a client’s query regarding whether a reversionary pension can be paid to a former spouse in the situation where the client no longer has a spouse.

William will be presenting DBA Network Pty Ltd’s SMSF Online Update on 16 April 2021 and will be discussing this topic in detail. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

Family Law SuperSplitting Documents for SMSFs 

The $1.6 million transfer balance cap revisited

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and William Fettes, Senior Associate

30 March 2021

In this episode of the DBA Lawyers Podcast, Zacharia Galloway, Lawyer and Bryce Figot, Special Counsel, discuss what to do if you lose your trust deed, the first indexation of the Transfer Balance Cap (TBC) and the traps to be aware of for SMSFs involved in property development.

A lost trust deed is an unfortunate but also common scenario when dealing with both trusts and SMSFs. Bryce discusses the recent case The application of M & L Richardson Pty Limited [2021] NSWSC 105 that highlights where a court may make an order for a trust to be administered on the basis of a copy of the deed, where the original deed cannot be located.

Zac and Bryce then discuss the first indexation of the TBC set to take place on 1 July 2021 and briefly examine how proportionate indexation will affect the personal TBC of those already receiving pensions in retirement phase.

Finally, Zac and Bryce discuss SMSFs engaged in property development and the tips and traps that SMSF trustees should be aware of. They also address a client’s query regarding whether a bank asking for a personal guarantee from an SMSF member in order to secure a loan for a unit trust, where the SMSF is invested in that unit trust, could result in non-arm’s length income (NALI).

Bryce will be presenting DBA Network Pty Ltd’s SMSF Online Update on 5 March 2021 and will be discussing these topics in greater much detail. To register, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to [email protected].

Related articles and links below.

Sutton v NRS(J) Pty Ltd [2020] NSWSC 826: Lessons for managing lost trust deeds

The $1.6 million transfer balance cap revisited

Is SMSF property development good or too good to be true?

DBA Network

DBA Lawyers

Hosts (in order of appearance): Zacharia Galloway, Lawyer and Bryce Figot, Special Counsel