In the decision of In the matter of Gainer Associates Pty Limited [2024] NSWSC 1138, the Court amongst other things gave advice to uphold the decision of the self managed superannuation fund (SMSF) trustee to distribute 1/3rd of the death benefits in the SMSF to a partner of the sole surviving SMSF member and 2/3rd to her estate.
Sladen Snippet – Gainer Part 1 – When Court advice may be given to an SMSF trustee
In the decision of In the matter of Gainer Associates Pty Limited [2024] NSWSC 1138, the Court amongst other things gave advice to uphold the decision of the self managed superannuation fund (SMSF) trustee to distribute 1/3rd of the death benefits in the SMSF to the spouse of the sole surviving SMSF member and 2/3rd to her estate.
Sladen Snippet - ATO attempts to read down loss in Merchant disqualification decision
The Australian Taxation Office (ATO) has issued a draft Decision Impact Statement (DIS) on the Administrative Appeals Tribunal (AAT) decision of Merchant and Commissioner of Taxation [2024] AATA 1102 (which was decided on 16 May 2024) (Merchant).
Sladen Snippet: Armidale Jockey Club - Racing clubs “clearance house” liable to pay superannuation guarantee to jockeys
This Decision of the Administrative Appeals Tribunal (AAT) is a series of decisions against five jockey racing clubs brought by the Australian Taxation Office (ATO) regarding whether the racing clubs must pay super contributions on behalf of jockeys under the Superannuation Guarantee (Administration) Act 1992 (SG Act).
Sladen Snippet - TD 2024/5 - How NALI is calculated for capital gains
Sladen Snippet - Neal v Brown – Super benefits withdrawn before death result in unintended consequence under deceased’s will
Sladen Snippet – NALE changes pass parliament
Sladen snippet - S&H Investments - Company cannot contract out of super guarantee
In the decision of S&H Investments Pty Ltd and Commissioner of Taxation [2024] AATA 893, the Administrative Appeals Tribunal (AAT), the Tribunal affirmed the decision of the Commissioner of Taxation to assess the taxpayer for the superannuation guarantee charge for failing to pay superannuation for their employee/contractor referred to as “TW”.
Sladen Snippet - ATO attempts to read down NALI defeat in BPFN decision
As noted previously, the recent Administrative Appeals Tribunal (AAT) decision of BPFN and Commissioner of Taxation (Taxation) [2023] AATA 2330 (28 July 2023) (BPFN) had struck a blow to the ATO’s strict approach to non-arm’s length income (NALI) and taken a more general commercial approach to NALI.
Protecting Against Death Benefits Challenges
Super guarantee – Same, same but different
This paper has been built on a previous paper on the superannuation guarantee (SG) regime, titled Super Guarantee – no longer the toothless tiger. That paper was designed to take a holistic examination of the SG regime. In this paper, we have built on that approach and added a number of developments, including:
Mackie– Contributions count when cleared funds are received, not when you press send – no special circumstances
In the decision of Mackie v Commissioner of Taxation (Taxation) [2024] AATA 619 (3 April 2024), the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the Commissioner to decline to exercise the discretion in section 291-465(1) of the Income Tax Assessment Act 1997 (Cth) (ITAA 97) to disregard or allocate to another year the taxpayer’s concessional superannuation contributions.
Sladen Snippet - Kirk - superannuation removed no longer protected from creditors
In the decision of Kirk as trustee of the Property of Smith (a Bankrupt) v Smith [2024] FCA 240 (15 March 2024) the Federal Court held, among other things, that a transfer of superannuation from the husband to his wife’s superannuation was no longer protected as an interest of the bankrupt in a regulated super fund under section 116(2)(d)(iii)(A) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).
Sladen Snippet - Tratter - non-binding nomination considered but not followed
In the decision of Tratter v Aware Super [2024] FCAFC 36 the Full Federal Court dismissed the appeal by the deceased super fund member’s mother against the super fund trustee’s apportionment of 30% to the mother and 70% to the deceased’s de facto spouse.
Stern – Transfer Balance Account calculated to include Defined Benefit Pension – in accordance with the operative provisions, not the guide
In the decision of Stern v Commissioner of Taxation [2024] FCAFC 21 the Full Federal Court found against the taxpayer, who raised an argument that Division 294 of the Income Tax Assessment Act 1997 (ITAA 97) should not be interpreted such that both his pension was to be commuted under a commutation authority issued by the Australian Taxation Office (ATO) due to his pensions exceeding his transfer balance cap, and that he also must pay excess transfer balance tax for exceeding his transfer balance cap.
Sladen Snippet - Cihan - Transfer of land to an SMSF reversed for unconscionable dealing
The NSW Supreme Court decision of Cihan Family Trust v Cihan Family Superannuation Fund [2023] NSWSC 1289 found that a transfer of land from a family trust to a SMSF should be reversed on the basis of unconscionable conduct of a son against his father.
Sladen Snippet – Corbisieri – BDBN invalid due to relationship breakdown
The case of Corbisieri v NM Superannuation Proprietary Limited [2023] FCA 1319 involved an appeal by the mother of a deceased against the decision of the Australian Financial Complaints Authority (AFCA) to uphold a BDBN to benefit the de facto spouse of her late son, which was to be funded out of life insurance proceeds in AMP Superannuation.
Sladen Snippet – van Camp – deathbed BDBN found to be valid
In this Judgment of the NSW Supreme Court, a binding death benefit nomination (BDBN) signed on the date of death of the sole member of a self managed superannuation fund (SMSF) was upheld. Challenges to the BDBN’s validity, by the SMSF trustee and two of the deceased’s executors, based on lack of capacity and unconscionability both failed.
Who’s Running The Show: Keeping Control Of An SMSF
Super Guarantee – Same, Same But Different
This paper has been built on a previous paper on the superannuation guarantee (SG) regime, titled Super Guarantee – no longer the toothless tiger. That paper was designed to take a holistic examination of the SG regime. In this paper, we have built on that approach and added a number of developments, including: