DBA Lawyers Podcast

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

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

In this podcast we discuss two recent cases.

Brooks and Commissioner of Taxation (Taxation) [2019] AATA 1236 is a recent AAT decision where a person was made a disqualified person by the Commissioner and thus unable to act as the director of the corporate trustee of their SMSF. We look at the contraventions that occurred in this case, what the Commissioner considered in making this decision and discuss what advisers should do when a similar situation arises.

Wykrota v Chief Commissioner of State Revenue [2019] NSWCATAD 106 is a case about whether a person was entitled to the apparent purchaser duty concession; a concession often relied upon in an LRBA context when transferring property to an SMSF trustee. We discuss what key documents and facts should be in place when establishing an LRBA to ensure this concession is not jeopardised.

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

The election result was a surprise for most people. As a result of this we discuss the possible changes coming to SMSFs from the Coalition government. In particular, we discuss how to deal with the potential increase in the number of members allowed in an SMSF and the risks accompanying this.

We also discuss the current key case regarding the sole purpose test: Aussiegolfa. We explain what this case actually tells us about the sole purpose test and how advisers should proceed in light of this case and the ATO’s response.

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

In this podcast we disucss the recent case of Gonciarz v Bienias [2019] WASC 104 and the conflict of interest that arises where an executor or administrator of a deceased estate applies to receive death benefits in their own capacity.

We discuss:

  • What happened in Gonciarz v Bienias.
  • Why the outcome in this case was different to Burgess v Burgess [2018] WASC 279.
  • The Courts statement of the current law in this area.
  • What advisers can do to mitigate the risk of this conflict arising.

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

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