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

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

In this podcast we look at the recent cases of Re Marcella and Eichmann and Commissioner of Taxation. 

Re Marcella

The Re Marcella judgement provides a great depth of analysis of how trust law principles apply to an SMSF. The case highlights the need for trustees to properly consider who to pay a death benefit to and when the courts may intervene where bad faith or grotesque unreasonableness is involved.

In this podcast we will cover:

  • The key points of Re Marcella
  • Why this case is important
  • How this case is different from Katz v Grossman

Eichmann and Commissioner of Taxation

We will cover:

  • Why was the subject property was considered an active asset for small business CGT relief purposes; how this case is different from Re Karapanagiotidis and Commissioner of Taxation [2007] AATA 1961
  • Whether there are implications for the definition of business real property
  • Comparing this case with a similar example in SMSFR 2009/1

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