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Does my SMSF deed need updating?

By Daniel Butler, Director and Cassandra Hurley, Lawyer , DBA Lawyers
23 March 2023 — 7 minute read

Failing to keep your SMSF deed up to date can lead to the SMSF failing to optimise tax and contribution concessions, unnecessarily restricting investment opportunities, and can result in funds being unable to function appropriately if a member loses capacity or dies.

Deciding when, and with whom, to update the governing rules of an SMSF can be a difficult decision to make.

In this article, DBA has collated some key changes impacting SMSF deeds over the past 20+ years. As you may be aware, there have been many more changes to those discussed below.

For more information about our governing rules update services, including our Annual Update Service, please visit our website: https://www.dbalawyers.com.au. For a recent article on our latest deed, click here.





Hill v Zuda [2022] HCA 21

High court confirms binding death benefit nominations (BDBNs) can last indefinitely for SMSF members  provided they do not rely on reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SISR).


Changes to gainful employment testing and age-based restrictions

The gainful employment test no longer needs to be satisfied from 1 July 2022 for contributions for members between 67 to 75 years. However, a member aged between 67 to 75 must be gainfully employed for a minimum of 40 hours within 30 consecutive days during the financial year to claim a tax deduction for a personal contribution.


FHSS Scheme expanded

Eligible participants in the First Home Super Saving (FHSS) Scheme can release up to $50,000 in superannuation to assist them to buy their first home.


Pension laws and commutation authorities harmonised

New pension laws enable legacy pensioners (with lifetime and market linked pensions) to undertake commutations to resolve the excess transfer balance .


Changes to the definition of an SMSF

The number of members in an SMSF increased to 6 (prior to 1 July 2021, the maximum was 4).


Section 110A of the Corporations Act 2001 (Cth) Determination made

Electronic execution of SMSF documents allowed in certain circumstances extended (and then later entrenched).


Tax treatment of income from super in a testamentary trust

A superannuation death benefit paid to a deceased estate that ends up in a testamentary trust may miss out on favourable tax treatment if it is caught by s 102AG(2AA) of the Income Tax Assessment Act 1936 (Cth)


Covid-19 responses

During FY2020 and FY2021 some COVID concessions included halving of the pension minimums, some rent and loan relief and limited access to superannuation withdrawals.


TRIS changes relating death

Clarification given regarding the timing and nature of TRIS and when a TRIS can be made reversionary.


Downsizer & FHSS contributions

Downsizer contributions and FHSS Scheme contributions introduced.


Further limitations on contribution caps 

Substantial limits on contributions including a $1.6M total superannuation balance cap resulting in higher contributions giving rise to excess contribution issues


Transfer balance cap introduced

Introduction of a $1.6M lifetime transfer balance cap on amounts that can be transferred towards funding a pension in retirement phase.


TRIS tax exemptions removed

The tax exemption on earnings derived from assets supporting a TRIS removed unless the member is retired, attains 65 or satisfies another specified condition of release.


Related party loan clarifications released

The ATO’s Practical Compliance Guideline PCG 2016/5 sets out ‘safe harbour’ criteria so SMSF with LRBAs that satisfy the ATO will generally be considered as dealing at arm’s length.

Regulation of collectables and personal use assets

All investments in collectables and personal use assets, eg, art-work, antiques and memorabilia even those acquired prior to 2011, became subject to the strict rules under reg 13.18AA of SISR.


Look through treatment for bare trusts

Income tax ‘look through’ treatment for bare trusts used as part of limited recourse borrowing arrangements (LRBAs) introduced for tax purposes.


Terminal medical condition definition

The definition of terminal medical condition in reg 6.01A of the SISR was extended from 12 months to 24 months of expected death with an impact on deeds, insurance and benefit provisions.

Death benefit case

Court confirmed in Munro v Munro [2015] QSC 61 that a BDBN made in respect of member benefits in an SMSF can last indefinitely.


Changes to insurance rules

From 1 July 2014 regulated superannuation funds can only provide insured benefits consistent with conditions of release precluding new coverage for ‘own occupation’ total and permanent’ disability and trauma insurance (subject to certain grandfathering for pre-1 July 2014 policies).

Continuance of custodial arrangements after loan is repaid

ATO legislative instrument SPR 2014/1 released confirming that an asset acquired under an LRBA can remain in the name of the holding trustee after the loan is repaid without giving rise to in-house asset concerns subject to certain provisos.


Excess contribution laws

New laws introduced for excess concessional and non-concessional contributions. The effect was that an excess concessional contribution could be released from the fund and taxed at the member’s personal tax rate.


The covenants (eg, to act honestly, prudently and in the best financial interests of members) in ss 52B and 52C of the Superannuation Industry (Supervision) Act 1993 (Cth) (SISA) apply to the governing rules of all SMSFs even though they are not expressly contained in the deed or governing rules.


Div 293 tax

Division 293 tax introduced to increase the contributions tax on concessional superannuation contributions for individuals with income greater than $300,000 a year. This threshold was subsequently lowered to $250,000.

Low income superannuation contribution

Government low income superannuation contribution came into effect, providing for a government contribution of 15% of eligible contributions up to a maximum of $500 for eligible individuals on adjusted taxable incomes of up to $37,000.


Regulation of collectables and personal use assets

All newly acquired investments by SMSF trustees in collectables and personal use assets subject to strict rules under reg 13.18AA of SISR.

Trading stock exception removed

Removed the trading stock exception to the capital gains tax primary code rule for certain assets (primarily shares, units in a trust and land) owned by a complying superannuation entity.


Borrowing laws

Borrowing laws were amended to allow for LRBAs under s 67A of the SISA.


Definition of spouse amended

The definition of spouse in s 10(1) of SISA was changed to include same sex relationships.


Borrowing laws

Borrowing laws were amended to allow funds to borrow on a limited recourse basis to acquire permitted assets (ie, via LRBAs).

Terminal Medical Condition benefits

New laws and regulations enacted in early 2008 allow persons with a ‘Terminal Medical Condition’ to access their super as a lump sum tax-free if a person was expected to die within 12 months of the diagnosis.

Substantial super reforms

Major reform of the superannuation system took effect including substantial reductions to contribution limits and tax free benefits after 60. The reasonable benefits limits were removed and many other changes made.

New income streams

New account-based income stream (pension) and new transition to retirement income stream (TRIS).


Compulsory cashing abolished

Compulsory cashing rules when a member attained 65 and retired or turned 75 years abolished, allowing members to accumulate indefinitely until they die.

Undeducted contributions

New cap on undeducted contributions applied during 10 May 2006 to 30 June 2007 of $1 million and generally $150,000 p.a. from 1 July 2007.

Contributions splitting

Members can split contributions received after December 2005 with their spouse. Only 85% of deductible contributions can be split.

Allocated pension changes

New, longer life expectancy pension valuation factors (PVFs) apply to pensions commenced after December 2005. Pensions commenced prior to January 2006 continue to use the old PVFs.

Market linked pension changes

The term of a pension commenced after December 2005 includes the option of the member’s 100th birthday less their age at commencement of the pension, eg, if member is 65 they can choose a term of 35 years. The member may also choose the pension to be paid to the spouse’s 100th anniversary.


DBPs transitional relief ceased

SMSFs can no longer commence DBPs. From 12 May 2004 to 31 December 2005, SMSFs were required to satisfy certain criteria before a DBP could commence.

Non-commutable pensions introduced

Members can now access a non-commutable allocated or market-linked pension on attaining preservation age. Older deeds may need to be amended to ensure eligible members can access these pensions.


Market linked pensions

This new type of pension was introduced with unique features.

Gainful employment rules eased

Persons under 65 do not need to satisfy the gainful employment test.

Changes in the rules relating to when benefits paid

New test for when a benefit must be paid or commenced. Certain deeds needed updating to ensure compliance.

Restrictions placed upon DBPs

Members of SMSFs could no longer be paid DBPs unless certain transitional rules were satisfied.


Pro-rating rules for pensions

Pensions commencing after September 2003 have new minimum pro-rating rules.

PDSs introduced

Upon certain events, a PDS may have to be issued to members.

Government co-contributions introduced

Government co-contributions made to a fund. Many deeds only contemplated employer and member contributions.


Greater flexibility with regards to contributions and compulsory cashing introduced

Certain deeds needed updating to ensure compliance and to ensure internal roll-over provisions could be utilised.


Internal roll-overs of super pensions now treated differently

Certain deeds needed updating to ensure compliance and to ensure internal roll-over provisions could be utilised.


ATO replaced APRA as the regulator of SMSFs

Certain deeds needed updating to ensure compliance.

8 October 1999

Section 17A introduced - the member/trustee rules

The member/trustee structure of all SMSFs needed to be reviewed to ensure that s 17A was not being breached – some deeds required updating in order to ensure compliance.

31 May 1999

BDBNs introduced

Previously, SMSF trustees had a discretionary power as to whether and to whom to pay a member’s benefit upon death – all deeds needed to be updated to allow members to now make BDBNs to bind the trustee to pay their benefit to nominated person(s).


This article is for general information only and should not be relied upon without first seeking advice from an appropriately qualified professional. The above does not constitute financial product advice. Financial product advice should be obtained from a licensed financial adviser under the Corporations Act 2001 (Cth).

Note: DBA Lawyers presents monthly online SMSF training. For more details or to register, visit www.dbanetwork.com.au or call 03 9092 9400.

For more information regarding how DBA Lawyers can assist in your SMSF practice, visit www.dbalawyers.com.au.

Does my SMSF deed need updating?
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