Monthly technical briefing - November 2026

In this update, we’ll aim to answer key questions we’ve received from advisers. We’ll also help you get up to speed with technical developments for the period from 29 September 2026 to 26 October 2026, including a bill introduced to Parliament to legislate the Government’s proposal to tax discretionary trusts at 30 per cent.

In this edition, the Adviser query of the month looks at the source of information for determining a client’s total super balance.

Adviser query of the month

Question

I’m looking at making non-concessional contributions for my client. When will the total super balance information be available via ATO online services linked to my client’s MyGov account?

Answer

Total super balance is used for a number of super related strategies, such as:

• Non-concessional contribution cap
• Access to the carried forward concessional contribution cap
• Work test exemption for claiming deductions for personal contributions from age 67
• Government co-contribution
• Spouse contribution tax offset
• Division 296 tax

For large super funds, the total super balance for 30 June generally needs to be reported by the following 31 October. As 31 October 2026 falls on a weekend, large funds had until the next business day, being 2 November 2026. 

On the basis the funds have met this deadline, the information will now be with the ATO and will be available via ATO online services/MyGov in due course, if not already there.

That said, it’s prudent to also make sure all expected super fund information has been reported. For instance, if your client has three super accounts, you will want to make sure the balance is reported for all three funds, just in case one or more funds are running late with their reporting. 

For small super funds (eg SMSFs), total super balance for 30 June 2026 is reported in the SMSFs 2025-26 annual return. The due dates for the 2025/26 annual return depend on the SMSF’s status and who prepares the return, as follows:

15 May 2027 – lodge via registered tax agent

28 February 2027 – lodge via registered tax agent – first year preparer

31 January 2027 – lodge via registered tax agent – large or medium income funds

31 October 2026 – self-preparers

31 October 2026 – outstanding prior year returns

It’s also worth noting that there’s a risk with using balances that haven’t been reported to the ATO. For instance, it may be tempting to use a 30 June 2026 value shown on a portfolio valuation report for an accumulation account not in the retirement phase. While this might give an indication of the value, it may differ from the balance reported to the ATO. One reason for this is that the law specifies that the total super balance value is the total super benefits that would become payable if:

• the individual to whom the superannuation interest relates had the right to cause the superannuation interest to cease at that time, and
• the individual voluntarily caused the superannuation interest to cease at that time.

In some instances, the fund’s portfolio valuation amount may be the gross value of the account whereas total super balance value might reduce this by the costs associated with closing the account, such as tax on unrealised capital gains. On the basis that the portfolio valuation value is different from the actual total super balance value, opportunities may be missed and/or the advice may be incorrect. As always, care should be exercised when sourcing the client’s total super balance information.  

Taxation of discretionary trusts – bill enters Parliament – 2026-27 Federal Budget

On 14 October 2026 the Government introduced Treasury Laws Amendment (Tax Reform No. 3) Bill 2026 (Bill) to Parliament that will result in discretionary trusts being taxed at 30 per cent if legislated. 

The following provides a summary of the sequence of events in relation to the progress of these reforms:

The proposed changes outlined below are not yet law.

1. Introduction

• Commencement: Applies to income years starting on or after 1 July 2028.
• Policy objective: Targets ‘income splitting’ practices and improve fairness and sustainability of the tax system.
• Trustee liability: The trustee will be primarily liable to pay a minimum 30 per cent tax on the trust's ‘minimum tax income’. If no beneficiary is made presently entitled, section 99A (top marginal rate plus Medicare levy) still applies.
• ‘Top-up’ mechanism: The tax operates as a minimum, ensuring that relevant trust net income is subject to at least 30 per cent tax.

2. Scope and key exclusions from the minimum tax

A discretionary trust that is subject to these rules is referred to as a ‘minimum tax trust’.

Excluded trust types

Trusts that are excluded from being a minimum tax trust include:

• Fixed trusts
• Special disability trusts
• The estate of a deceased person
• Complying super entities
• Employee share trusts
• Approved worker entitlement funds
• Trust estates of a kind determined by the Government by legislative instrument

Definition of ‘fixed trust’

The Bill contains a new definition for a fixed trust, being a trust where:

• The beneficiaries have fixed entitlements to all of the income and capital of the trust, or
• There are no material discretionary elements capable of significantly affecting the entitlements or rights of the trust’s beneficiaries to the income or capital of the trust.

Excluded income types

Income subject to these rules is called ‘minimum tax income’. Certain income will be excluded from being minimum tax income, including:

• Income from testamentary trusts established for genuine testamentary purposes.
  • Income from property injected after Budget night, 7.30 pm by legal time in the Australian Capital Territory on 12 May 2026, unrelated to the deceased estate will be subject to the minimum tax.
  • For trusts established on or after 1 July 2028, beneficiaries under the trust instrument must be limited to individuals, exempt entities or a special disability trust.
• Income to minors (at the end of the income year) where certain conditions are met, such as:
  • The minor is disabled, in receipt of a carer allowance or disability support pension, or double orphan pension
  • The income derives from property transferred to the trustee by way of compensation or damages payments, workers compensation, life insurance or superannuation death benefit proceeds or as a result of family breakdown for the benefit of the minor beneficiary
• Distributions to foreign resident beneficiaries subject to non-resident withholding tax.
• Distributions to registered charities and deductible gift recipients (DGRs). Conditions may be determined by legislative instrument.
• Taxable primary production income.

3. Treatment of beneficiaries and tax offsets

Non-corporate beneficiaries (e.g. individuals, trustee beneficiaries) will be entitled to a non-refundable tax offset in relation to the minimum tax income they are entitled to.

Corporate beneficiaries will be assessed on the minimum tax income however they won’t receive a non-refundable tax offset on the minimum tax income they receive.

Reduction of other rebates

Existing deductions/refunds for beneficiaries are reduced to prevent an overall benefit exceeding 30 per cent on minimum tax income.

4. Expanded capital gains tax (CGT) rollover relief for restructuring

To support restructuring in response to the minimum tax, CGT roll-over relief will be available for a three-year period from 1 July 2027.

Key features of the roll-over relief include:

• Availability: For a three-year period, from 1 July 2027 to 30 June 2030.
• Purpose: Allows discretionary trusts to restructure into other entities (e.g. individual, companies or fixed trusts) without immediate capital gains tax (CGT) or other income tax consequences.
• Transferee requirements: The transferee must satisfy certain requirements, including:
  • It must be a single entity; it cannot be used if assets are split among multiple entities.
  • It cannot be an exempt entity, complying super entity, or another minimum tax trust.
  • The new structure has discretionary elements affecting rights or interests of members.
• Continuity: Specific requirements for family trusts (beneficiary and family group membership) and potentially other trusts via legislative instrument. For family trusts (i.e. where a family trust election is in force), if the transferee is an individual, they must have been a beneficiary and within the family group relating to that trust. Alternatively, if the transferee is not an individual (e.g. a company), every individual who, just after the transaction takes effect, has a direct or indirect interest in the transferee must, just before the transaction took effect, have been a beneficiary of the trust and a member of the family group relating to that trust.
• Residency: Both transferor and transferee must meet Australian residency requirements.
• ‘All assets’ requirement: Generally, all trust assets must be transferred within the three year period. Exclusions include:
  • Non-transferable assets
  • CGT assets used for primary production income
  • Assets to discharge liabilities/winding-up costs
  • Assets (including a set of assets or identical, or substantially identical assets) with a cost of $1,000 or less, and
  • Membership interests in the transferee.
• Election: Both the transferor and the transferee must voluntarily make a choice in the approved form to apply the rollover, notifying the Commissioner by the earlier of the day they lodge their income tax return for the income year in which the first asset transfer of the restructure occurs, and the due date for lodgement of that return. Where the restructure occurs over multiple years, the transferor must notify the ATO that the restructure is in progress. Once the election is made, it cannot be revoked.
• Integrity (‘clawback’): Rollover is denied if material discretionary elements affecting the transferee entity's members are preserved or introduced during a four-year period after the income year in which that last transfer occurs.

5. Electable Regime: Excluded Election Trust (EET)

The EET regime aims to allow existing discretionary trusts an alternative to restructuring, particularly to mitigate compliance costs and state/territory duties.

Where a trust elects to become an EET, the 30 per cent minimum tax does not apply to the net income of the trust.

Key features of the EET include:

• Eligibility: Discretionary trusts in existence on 1 July 2028 can elect into this new regime.
• Election timing: Only in the 2028-29 income year (or first substituted accounting period). Only one election per trust.
• EET nomination: The trustee making the election must nominate who will be the beneficiaries going forward. The nomination requirements include:
  • Trustee specifies each nominated beneficiary (no limit), with a specific percentage share of both income and non-income earnings (e.g. capital gains).
  • The percentage share must be the same for both income and non-income earnings.
  • The total percentages must add to 100 per cent.
  • Cannot nominate complying super entities, partnerships, or non-eligible companies. An "eligible company" has no material discretionary elements affecting its members.
• Variations: Limited circumstances for changes:
  • Death of a nominated beneficiary, or
  • Relationship breakdown between two nominated beneficiaries.
• Revocation (voluntary): Trustee can revoke the election at any time, but it cannot be reinstated.
• Revocation (automatic): Triggered if distributions are inconsistent with the EET nomination or certain events occur (e.g. winding up of a nominated trust/company, nominated company ceasing to be eligible, or specific shareholder changes).
• Consequences of revocation: Where an election is revoked, the trustee will pay tax on the trusts income and non-income earnings at the highest marginal tax rate plus Medicare levy. In subsequent years, the trust will be a minimum tax trust and will pay tax at 30 per cent on taxable income. The year in which the highest rate of tax applies depends on the type of revocation.

6. Franking credits

• Minimum tax trusts must use franking credits to offset their income tax liabilities, including any minimum tax liability.
• Any excess franking credits remaining will be refundable to the trustee.

Further information can be found here: Treasury Laws Amendment (Tax Reform No. 3) Bill 2026