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Aussiegolfa and Hart – Important guidance for SMSFs

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Published on 01 Dec 18 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

Two recent decisions provide much needed guidance in respect of self-managed superannuation funds. In Aussiegolfa, the Full Court applied the general law conception of a trust and determined that a sub-fund was a distinct trust, with the result that the in-house asset test was breached, notwithstanding an express provision in the constitution to the contrary. Further, their Honours held that the sole purpose test could be met if a related party has the use of the SMSF’s asset, where market rent is paid. In Hart, the Administrative Appeals Tribunal dealt with a potential consequence of failing to meet those fundamental tests, namely, the disqualification of a trustee (or its directors), and serves as an important reminder of the wider implications that disqualification may cause.

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Angela Lee
Angela is a barrister at the Victorian Bar. She practices predominately in taxation law, acting for both taxpayers and the Commissioner of Taxation. She is a nationally accredited mediator. She is a lecturer in the GST subject at the University of Melbourne’s Melbourne Law School’s Masters program. Angela served as National Chair of the Law Council of Australia’s Business Law Section’s Tax Committee. - Current at 16 August 2023
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