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Estate Planning Equation – Preventative Law
Level 13, 200 Queen St,
Melbourne Vic 3000
+613 8600 6906
Areas of Practice
Australian superannuation is a double edged sword, combining taxation and asset protection incentives with investment, control and access restrictions. SUPERANNUATION does, however, provide a number of options that make the restrictions less of a concern for many people, eg the establishment of self-managed superannuation funds (SMSFs) and the use of limited recourse borrowing arrangements.
The use of SMSFs has allowed individuals to have greater control over the decisions that are made in respect of their retirement savings. However, that additional control comes with additional responsibility and individuals should seek appropriate financial and legal advice as and when necessary. At Estate Planning Equation, we assist financial advisors, accountants and their respective clients in the legal aspects of an SMSF including:
- Establishment and upgrades of governing rules of SMSFs including reviews;
- SMSF borrowing via limited recourse borrowing arrangements;
- General compliance issues;
- Pension documentation;
- Structuring superannuation death benefits payments; and
- Changes of trustees.
Martin and Diana run a restaurant business via their family discretionary trust, which also owns the business premises. They are conscious that the premises would be exposed to claims by creditors should the business ever get into financial difficulty. They wish to take advantage of the more favourable income tax and asset protection attributes of an SMSF and have decided to transfer the premises across to the fund. In doing so, they should consider:
- Whether the property is able to be transferred to superannuation without contravening the strict requirements of the Superannuation Industry (Supervision) Act 1993 (Cth);
- The necessary steps to transfer the property from the trust to superannuation and availability of CGT and duty exemptions on such a transfer;
- The GST implications of such a transfer;
- Their contribution caps and the timing of such transfers to maximise the ability to utilise their contribution caps; and
- The requirement for arm's length rent between the SMSF and family discretionary trust.