DBA Lawyers Podcast

Join Australia’s top SMSF lawyers as they dive into important issues facing the SMSF industry.

In this episode of the DBA Lawyers Podcast, Daniel Butler, Director and Shaun Backhaus, Lawyer discuss what to look for in a company constitution and some of the value-added features of the DBA Lawyers’ constitution.

It pays to obtain quality when obtaining a constitution, especially the many value-added strategies and features that you can obtain from a quality supplier. There are many suppliers of companies that supply generic and poor-quality documentation and many seem to go for non-qualified suppliers. You, especially if you are an adviser ordering a company for a client need to know what to look for. This episode examines why you should make sure the constitution you use is ‘fit for purpose’ and some key points to examine to ensure you acquire a quality constitution; especially as you do not need to pay much more for a quality given the competitive nature of the industry.

Daniel and Shaun discuss several key points such as who has the right to appoint and remove a director, the succession for shareholders and directors and risks from ordering documents from a non-qualified suppliers, especially if you are an adviser.

Daniel and Shaun also cover some of the value-added features of the DBA Lawyers’ constitution including successor directors, guardian shares and the flexibility to operate as a sole purpose SMSF trustee company.

For a chance to have your SMSF query addressed on the show, please send your questions to zgalloway@dbalawyers.com.au.

Related articles and links below.

Not all companies are created equal

Preserve the intended control of a company using successor directors

Is an alternate director for an SMSF better than a successor director part 1

Is an alternate director for an SMSF better than a successor director part 2

DBA Network

DBA Lawyers

Hosts (in order of appearance): Daniel Butler, Director and Shaun Backhaus, Lawyer

30 November 2020

In this episode of the DBA Lawyers Podcast, Bryce Figot, Special Counsel and William Fettes, Senior Associate discuss SMSF succession planning and some practical tips and traps.

SMSF succession planning is a critical component of each member’s SMSF strategy and is often overlooked. The two key questions to ask when formulating an SMSF succession plan is where a member’s death benefit should be paid and who should control the fund in the event of loss of capacity or death.

Bryce and William address some common misunderstandings with SMSF succession planning such as whether the deceased person’s will can direct the payment of their superannuation death benefit and discuss what happens if the member dies without a binding death benefit nomination (‘BDBN’).

Bryce and William also discuss the issue of control of an SMSF when a member dies and how succession to control works and who can then run the fund.

Finally, Bryce and William also discuss who can decide the validity of a BDBN and common issues that may arise if the person running an SMSF after a member’s death (commonly the surviving spouse) is also the executor of the deceased member’s will and is placed in a position of conflict.

William Fettes is hosting an SMSF Succession Planning Webinar on Wednesday, 18 November 2020 covering this topic in more detail. To register please click here. A recording to this live webinar is also available after 18 November 2020.

For a chance to have your SMSF query addressed on the show, please send your questions to zgalloway@dbalawyers.com.au.

Related articles and links below.

Appeal handed down in Wareham v Marsella

DBA Lawyers — the best BDBN is now even better — COVID-19

SMSF succession strategies

Reversionary pensions v BDBNs: advisers’ risks

SMSF succession planning

The legal minefield of BDBNs (updated)

DBA Network

DBA Lawyers

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

30 October 2020

In this episode of the DBA Lawyers Podcast, Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer, discuss the foreign purchaser duty and land tax surcharges that have been adopted by various states and territories.

The foreign purchaser duty and land tax provisions are additional surcharges that, broadly, are applied to foreign persons purchasing residential property in Australia. These provisions capture foreign natural persons, foreign trusts, and foreign corporations. The provisions are complex and many may consider they are not caught when in fact they are given the breadth of the legislative provisions.

Discretionary trusts are especially at risk of being caught under these taxes due to the broad scope of the definition of beneficiaries in most trust deeds.

Bryce and Shaun discuss the nature of the additional taxes and some of the traps that may unwittingly catch out discretionary trusts.

When establishing a discretionary trust, you should only order from a quality supplier as many document suppliers are not keeping up to date with these developments. Existing discretionary trusts may consider amending their trust deeds so that they are not caught out paying these additional taxes.

DBA Lawyers can assist by drafting discretionary trust deeds and amending existing discretionary trust deeds to exclude these foreign persons. Unless there is a special wording to the deed exclude foreign beneficiaries, as broadly defined in the relevant State or Territory, these taxes are likely to apply.

For more information about the DBA Lawyers discretionary trust deed, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to zgalloway@dbalawyers.com.au.

Related articles and links below.

DBA Lawyers’ discretionary trust — managing the extra duty and land tax surcharges on foreigners

Do Foreign purchaser duty surcharges apply to SMSFs?

Your discretionary trust may unwittingly be subject to extra duty or land tax

DBA Lawyers Discretionary Family Trust

DBA Network

DBA Lawyers

Hosts (in order of appearance): Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer

4 October 2020

Bryce Figot and Daniel Butler provide you with an insight into the many value-added features of the DBA Lawyers SMSF deed. They are both wanting to ensure our adviser clients can provide the best service to their SMSF clients having a deeper understanding of the strategies that can be unlocked by using our SMSF deed.

Show notes:

In this episode of the DBA Lawyers Podcast, Bryce Figot, Special Counsel and Daniel Butler, Director, discuss the DBA Lawyers SMSF deed (aka SMSF governing rules) and break down some of its many value-added features.

When talking to our adviser clients, we find that some are not aware of some the strategies and features that can used that they were not be aware of. This discussion is to heighten your awareness and provide guidance on the features of our SMSF deed.

Broadly, some of the features discussed includes conditional membership, limitation of beneficiaries, quarantining and segregation of assets and much more.

Our latest DBA deed also includes other value-added features, such as the ability to make a binding death benefit nomination without witnesses which can be an ideal solution during periods of social isolation. For more information about our latest SMSF deed, please click here.

For a chance to have your SMSF query addressed on the show, please send your questions to zgalloway@dbalawyers.com.au.

All articles referenced in this show are linked below.

DBA Network

DBA Lawyers

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

31 August 2020

In this episode of the DBA Lawyers Podcast, we discuss the recent changes to contribution age tests, amendments to the treatment of excepted trust income in testamentary trusts and the recent case of Sutton v NRS(J) Pty Ltd [2020] NSWSC 826 regarding lost trust deeds.

 

Firstly, we discuss making contributions and some of the recent changes to various age tests, what changes we are still waiting for and the impact this can have for future planning.

 

Secondly, we discuss the amendments to the Income Tax Assessment Act 1936 (Cth) aimed to prevent people from inappropriately injecting assets into testamentary trusts to obtain favourable tax treatment and what implications this may have for superannuation death benefit payments to a deceased estate.

 

Finally, we discuss the recent case of Sutton v NRS(J) Pty Ltd highlighting the importance of keeping an original copy of an executed trust deed and what options a trustee may have to rectify the issue of no longer having an original copy of the executed trust deed.

 

Shaun Backhaus covers these and other topics in DBA Network Pty Ltd’s July SMSF Online Update. For a deeper dive into the contribution rule changes, market linked pension fix, strategies for the current financial year and various other topics, please click here to access the recording. A recorded version is available so you can view at any time.

 

For a chance to have your SMSF query addressed on the show, please send your questions to zgalloway@dbalawyers.com.au.

 

All articles referenced in this show are linked below.

 

Superannuation Legislation Amendment (2020 Measures No.1) Regulations 2020

Recent Change to the Tax Treatment of Income from Super in a Testamentary Trust

Sutton v NRS(J) Pty Ltd [2020] NSWSC 826: Lessons for Managing Lost Trust Deeds

SMSF July Online Update Recording

Register for the September online update

DBA Network

 

 

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

 

In this episode of the DBA Lawyers Podcast, we discuss the beginning of the new financial year and Dan gives us his tips for advisers to begin the 2021 Financial Year on solid ground.

 

Firstly, we discuss making contributions and some of the recent changes to various age tests, the new pension minimums rules and the importance of bringing last year’s compliance and accounts up to date and reviewing SMSF investment strategies in the new financial year.

 

Secondly, we discuss some risks that advisers may put themselves in if they are not careful on the advice they give and the work they undertake. In particular, we discuss how the use of some document suppliers may put an adviser at risk by supplying document systems where the adviser prepares the documents and makes the legal decisions and where there is no lawyer input.

 

Finally, we discuss some of the features of our latest SMSF deed and Dan discusses some of the key advantages of a corporate trustee and why an SMSF should either start with a corporate trustee or change to one, especially a sole purpose corporate trustee.

 

Shaun Backhaus will be covering contributions rules changes, market linked pension fix, strategies for the current financial year and various other topics in DBA Network Pty Ltd’s July SMSF Online Update. To register please click here.

 

All articles referenced in this show are linked below.

 

The legal minefield of BDBNs

Minimum pension payments @ 50%? — COVID-19

DBA Lawyers – the best BDBN is now even better

PCG 2020/5

ATO – COVID-19 FAQ SMSF

Register for the July online update

DBA Network

 

 

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

 

 

In this episode of the DBA Lawyers Podcast, we discuss electronic execution of deeds, making an effective binding death benefit nomination (‘BDBN’) and the possibility of SMSFs providing rental relief due to COVID-19.

 

Firstly, we discuss the new temporary relief legislation made by the New South Wales (‘NSW’), Victorian and the Federal governments to allow for deeds to be made electronically. The new legislation allows for deeds to be made by individuals in both NSW and Victoria and for companies to also make deeds electronically subject to certain prescribed criteria being followed. The requirements to make a deed electronically are quite stringent and the procedures set out in the legislation must be adhered to if executing a deed electronically. For a comprehensive look into the new legislation please click here to read more about electronic execution of deeds by individuals and click here for companies.

 

Secondly, we discuss the making of a legally effective BDBN and some of the pitfalls and situations that members, trustees and advisers may find themselves in. We outline the importance of having quality documentation that allow for a firm foundation and flexibility when making a BDBN. We take the opportunity here to highlight some of the features of our latest SMSF governing rules that went live on 4 May 2020 that allows for, among other things, a BDBN to be made without witnesses.

 

Finally, we discuss SMSFs giving rental relief due to COVID-19 and the potential non-arms length income (‘NALI’) risks. Daniel Butler will be covering this topic as well as a range of other current hot in DBA Network Pty Ltd’s June SMSF Online Update. To register please click here.

 

All articles referenced in this show are linked below.

 

Electronic execution of Deeds by individuals

Electronic execution of Deeds by companies

Electronic signing and remote witnessing during coronavirus (COVID-19) restrictions

The legal minefield of BDBNs

DBA Lawyers – the best BDBN is now even better

SMSFs and rent relief due to COVID-19

Does an SMSF need to pass on rent relief to a related party tenant

SMSF Lease Review Service – COVID-19

ATO – COVID-19 FAQ SMSF

Register for the June online update

DBA Network

 

 

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

 

 

In this first episode of this brand new podcast by DBA Lawyers, we discuss the topics of SMSFs and rent relief due to COVID-19 and how to make a binding death benefit nomination ('BDBN') in a world where it may be difficult, if not illegal, to have two independent witnesses present.

 

Our aim with this podcast is to keep you, especially our clients and other listeners educated and up to date with what is going on in the world of SMSFs and what we at DBA Lawyers are doing.

 

Firstly, we discuss the importance of ensuring that an SMSF remains compliant with all regulations and ATO guidance during these difficult times. While it may be tempting for SMSF members to withdraw funds while undergoing financial stress, it is important that they only access their super savings under a prescribed condition of release.

 

Secondly, we discuss SMSFs giving rent relief to both arm's length and related party tenants and the various steps and potential risks involved. Further, we also discuss what needs to be managed if the SMSF purchased the property under an limited recourse borrowing arrangement (LRBA).

 

Finally, we discuss how to make BDBNs during these difficult COVID-19 times and how you can make a BDBN  via technology like Zoom and similar platforms if you have a recent version of the DBA Lawyers SMSF deed. Further, we discuss our SMSF deeds prepared from 4 May 2020 also allow a member to make their BDBN without any witness. Unlike many other SMSF document suppliers, being Australia’s leading SMSF law firm DBA Lawyers is making sure it a serving its clients with not only the best but also the most practical SMSF legal documents.

 

All articles referenced in this show are linked below.

 

ATO FAQ

https://www.ato.gov.au/General/COVID-19/COVID-19-frequently-asked-questions/Self-managed-super-funds-frequently-asked-questions/

COVID-19 Info Centre

https://www.dbalawyers.com.au/covid-19-info-centre/

Temporary Early Access to superannuation – COVID-19

https://www.dbalawyers.com.au/pensions/temporary-early-access-to-superannuation-covid-19/

SMSFs and rent relief due to COVID-19

https://www.dbalawyers.com.au/ato/smsfs-and-rent-relief-due-to-covid-19/

SMSF Lease Review Service – COVID-19

https://www.dbalawyers.com.au/announcements/smsf-lease-review-service/

DBA Lawyers – the best BDBN is now even better

https://www.dbalawyers.com.au/announcements/dba-lawyers-the-best-bdbn-is-now-even-better/

DBA Network Pty Ltd - SMSF Online Update Webinars

http://www.dbanetwork.com.au/dbalawyers/seminars3/1119/1683/SMSF-Online-Updates.html

DBA Lawyers

https://www.dbalawyers.com.au/

 

Hosts (in order of appearance): Zacharia Galloway, Lawyer, Daniel Butler, Director, Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer

In this podcast we discuss:

Commissioner of Taxation v Cassaniti [2018] FCAFC 212

This case explores what is needed to provide cogent evidence in tax cases against the Commissioner. We explore the facts and give some handy tips for what documents should be in place to set yourself up for success in future disputes.

Reversionary pension v BDBN: Which one wins?

Bryce explores this hot topic and gives you the rundown on what happens when reversionary pension documents and BDBNs conflict.

ATO investment strategy letters 

Everyone has been talking about the ATO's recent letters warning trustees about their investment strategies. We discuss this news and give our view on what an investment strategy should contain.

In this podcast we discuss two recent AAT cases and some legislation currently before parliament that will have a big impact on the SMSF industry.

Fitzmaurice and Commissioner of Taxation (Taxation) [2019] AATA 2217 is an AAT decision regarding a trustee being made a disqualified person. We look at this case as the trustee/member tried to blame the accountant for their early access to super. 

Wainwright and Commissioner of Taxation (Taxation) [2019] AATA 333 is another AAT decision regarding early access to super. In this case, the Commissioner had included the amounts in the taxpayers personal assessable income and we look at how this was avoided by the taxpayer.

Finally, we consider  the Treasury Laws Amendment (2018 Superannuation Measure No. 1) Bill 2019 (Cth) which includes changes to LRBAs and TSB calculations as well the expanding the non-arm's length income provisions.

Hosts: Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer, DBA Lawyers

Older Episodes »

Play this podcast on Podbean App