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January 2008
Super in 2007: An eventful year in review- opportunities for you and your clients
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 Lawyer in Profile  Julian SmithSenior Associate Phone: 03 9288 0555 Julian's areas of practice include:
He has experience in drafting various types of commercial agreements, trust deeds and corporate governance documents. He also advises extensively on companies law, financial services (and licensing) and superannuation matters. Julian is studying his Masters of Law at Melbourne University and recently addressed an ICAA conference on "SMSFs: The Virtue of A Good Deed".  
This article summarises the key superannuation issues and opportunities we analysed last year.
The Cleardocs Team at Maddocks
Superannuation becomes 'Simpler Super' becomes 'Better Super'New legislationOn 1 July 2007, a swarm of new superannuation legislation took effect. ClearLaw gave a "change by change" description as the law evolved before that date. You can access the articles summarised below here. Some of the major changes were: Changes to the big ticket items: no tax and no RBLs. Taxes on super benefits to people who satisfied a post age 60 condition of release were abolished — along with the whole concept of Reasonable Benefits Limits. Changes to contribution rules:
Changes to cashing rules: the compulsory cashing rules were removed — allowing people to leave their super in their funds as long as they want. Changes to death benefits: new rules regarding how a member's super benefits were to be paid on death, to whom and the appropriate tax treatment. These changes:
Changes to pensions: a new 'simple' or 'accounts-based' pension was introduced. This new type of pension was phased in throughout 2007. Generally, from 20 September 2007, SMSFs may only commence this type of pension. Changes to TFN requirements: fund members who fail to provide a superannuation trustee with a tax file number will be:
Changes as 'ETPs' become 'ETPs': the concept of 'eligible termination payments' was replaced with 'employment termination payments'. This reflected the fact that a new super contributions regime had been introduced. Changes to Super and Bankruptcy rules: all superannuation amounts were provided with protection from creditors — with the exception of superannuation contributions made after 28 June 2006 for the purpose of defeating creditors, which may be recovered by a trustee in bankruptcy. Changes to the rest: the list of material changes goes on — each of them marking important planning opportunities and compliance obligations for advisors and clients. The ATO's approach to Better SuperThe new Better Super landscape also focused on improved regulatory and compliance measures. In response to the first of two reports released by the Australian National Audit Office (ANAO) in early 2007, the Australian Tax Office (ATO) focused its priorities for the more intensive regulation of SMSFs. For a more detailed summary of the ANAO report, see our full article here. For this purpose, Better Super saw the ATO's surveillance budget increased by $112m and the following measures launched — all with the aim of improving SMSF compliance:
In-house assetsIn October, the ATO released a Draft Self-Managed Superannuation Fund Determination, dealing with in-house asset rules. Importantly, the Draft Determination confirmed that an investment made by an SMSF in a related company or a unit trust can be deemed not to be an in-house asset. This is despite the occurrence of a regulation 13.22D event, which would ordinarily deem an asset to be an in-house asset. Trustees should be mindful of the ATO's proposal that the Draft Determination, once finalised, will apply retrospectively to years of income before and after the date it is issued. This is likely to occur in 2008. For further detail regarding the Draft Determination, see our full article here. Investments in instalment warrantsIn September 2007, superannuation legislation changed to allow trustees of super funds to borrow money to buy assets via 'instalment warrant arrangements' — if the assets are held on trust for a beneficiary and certain requirements are met. This marked a significant shift in the regulation of super funds and is sure to be the big issue for 2008, particularly in the SMSF sphere. You can find further discussion of the instalment warrants exception in our full article here.
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