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, 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 zgalloway@dbalawyers.com.au.

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 zgalloway@dbalawyers.com.au.

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 zgalloway@dbalawyers.com.au.

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 zgalloway@dbalawyers.com.au.

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

In this episode of the DBA Lawyers Podcast, Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer discuss the case of Aussiegolfa Pty Ltd (Trustee) v Commissioner of Taxation [2018] FCAFC 122 (‘Aussiegolfa’).

Bryce and Shaun discuss the in-house asset issue, explain what the case tells us about the sole purpose test and also discuss how advisers should proceed in light of this case and the ATO’s response.

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.

The sole purpose test substantially clarified by the full federal court in Aussiegolfa Pty ltd v Commissioner of Taxation

PS LA 2020/3 – how the ATO applies administrative penalties on SMSF trustees/directors

DBA Network

DBA Lawyers

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

23 December 2020

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

 

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