Prudential regulation and compliance

The Private Superannuation team has extensive experience and expertise in advising superannuation fund trustees, financial institutions, employers and employees, principals and contractors and individuals on the prudential requirements of the superannuation law, including the sole purpose test, requirement to deal on arm’s length terms and the superannuation law covenants requiring trustees to formulate an investment strategy and act in the best interests of members.

The team also has experience advising directors of corporate fund trustees of their obligations under superannuation and taxation law and the applicable penalties for breaches of the relevant provisions.

Examples include:

• providing legal advice on the prudential requirements, governance and taxation of superannuation to an investment bank and its clients to compliment its service offering;
• advising on and assisting in the implementation of rectification plans for in house asset breaches and potentially non compliant superannuation funds; and
• reviewing and advising on new and existing borrowing arrangements to ensure compliance with the borrowing provisions under the superannuation law.

Superannuation guarantee obligations

The team has experience advising small to medium enterprises and listed companies on their superannuation guarantee obligations including:

• advising on responding to ATO questionnaires;
• preparing superannuation guarantee charge objections;
  negotiating payment plans with the ATO for deemed employees and common law employees; and
• advising on the distinction between contractors and deemed employees.

Taxation and estate planning in a superannuation context

The relationship between superannuation and taxation is fundamental to effective estate planning. To facilitate optimal estate planning outcomes the team has expertise in advising on:

• estate planning including binding and non binding death benefit nominations, reversionary income streams, enduring powers of attorney (financial), superannuation proceeds trusts and maintaining reserves within superannuation;
• asset protection including advising on bankruptcy and the implications from a superannuation perspective;
• in specie distribution and contribution of commercial property to superannuation in full or staggered over a number of years, including advising on all aspects of superannuation, capital gains tax, stamp duty and GST and distributing death benefits to dependants in specie;
• establishing, varying and administering self managed superannuation funds including advising on misplaced superannuation fund deeds; and
• taxation including stamp duty, land tax, capital gains tax and GST.

Examples include:

• advising members of self managed superannuation funds on strategies to maximise contributions to superannuation;
• advising members on dealing with excess contributions tax and preparing the documentation requesting the exercise of the Commissioner of Taxation’s discretion to disregard the excess contributions; and
• providing advice on the CGT contributions cap and CGT small business concessions as they apply to self managed superannuation funds.

Structuring commercial transactions, including superannuation fund borrowing arrangements and property development

To assist with the increasing frequency and complexity of commercial transactions within a superannuation context, the Private Superannuation team has expertise in:

• advising on all aspects of, and preparing the documentation to record, superannuation fund borrowing arrangements over real property and securities;
• providing superannuation, capital gains tax and stamp duty (land rich) advice in connection with undertaking business restructures involving self managed superannuation funds;
• assisting financial institutions in preparing their template superannuation fund borrowing documentation, including the letter of offer, general terms and conditions and special conditions precedent as well as security documentation, guarantees and indemnities; and
• advising and preparing the documentation to implement superannuation fund borrowing structures for investment and retail banks as well as self managed superannuation funds.

Examples of the team’s experience in this area include:

• advising on structuring a $30 million property development involving a self managed superannuation fund/unit trust arrangement;
• advice on structuring and implementing a financing arrangement for a property development involving a number of self managed superannuation funds; and
• advising employees on their ability to transfer stapled securities to be issued under an employee share scheme to the employees’ respective self managed superannuation funds as part of a management buy out.​