Key Highlights

  • A super specialist says uncertainty over trust tax and the $3 million super tax is causing clients to pause.
  • Clients are holding off on new moves while the rules remain unsettled.
  • The article separates what is already law from what is still a bill.
  • Key dates ahead include Senate hearings on the trust tax bills.

Superannuation and tax rules have changed so often in recent years that some clients are simply holding off on new decisions. That is the message from Phil Broderick, a specialist super lawyer at Sladen Legal. It matters now because, in the space of weeks, the Senate is examining Labor's trust tax bills, the $3 million super tax is already running, and big capital gains changes start in July 2027.

Speaking at The Tax Institute's National Superannuation Conference in Melbourne, Mr Broderick said "the level of uncertainty has created a freezing of new things", trade publication reported on 2 November.

What the lawyer said

According to reports, Mr Broderick described "a lot of frustrations, you know, across the board in our industry" with "the level of change and the constant change".

He pointed to the years practitioners have spent on the non-arm's length income and expenditure rules (known as NALI and NALE) and on "the different iterations of Div 296", the tax on super balances above $3 million.

"It's just hard to keep on top of that, let alone if you're a day-to-day practitioner," he said, as reported. "So there's that element of just being exhausted from constant change."

On client behaviour, he was blunt: "the clients are stopping doing things at the moment". He said clients will still act "if they have to", and transactions already underway will go ahead, but there is "definitely a slowdown in doing new things", particularly around the taxation of trusts.

He added that the slowdown is "having an effect now on Business clients as well", the outlet reported.

The pile of changes clients are weighing up

The frustration makes more sense when the changes are listed side by side. They sit at very different stages, which is part of the problem for anyone planning ahead.

  • Enacted and running: Division 296, the extra tax on super Earnings linked to balances above $3 million, applies from 1 July 2026. It adds 15% on earnings attributable to the part of a balance above $3 million, and a further 10% above $10 million.
  • Enacted and running: Payday Super started on 1 July 2026, requiring employers to pay the 12% Superannuation Guarantee so it reaches the fund within seven business days of payday.
  • Enacted, starting later: under the Treasury Laws Amendment (Tax Reform No. 1) Act 2026, the 50% Capital Gains Tax discount is replaced by cost-base indexation plus a 30% minimum tax for gains accruing from 1 July 2027. Negative gearing will be limited to new builds for residential property bought after 7:30pm AEST on 12 May 2026, from 1 July 2027, with existing holdings grandfathered.
  • Bills only: Tax Reform No. 3 Bill 2026 and the related minimum tax on discretionary trusts bill passed the House of Representatives on 29 October and are now before the Senate. The proposed 30% minimum tax on discretionary trusts would start on 1 July 2028. These are not yet law.

For a family with a self-managed super fund (SMSF), a family trust and an Investment property, every item on that list can be relevant at once.

Div 296 guidance still being finalised

Part of the uncertainty is about detail rather than principle. The ATO's Division 296 page for SMSFs, last updated on 29 June 2026, says a law companion ruling "is being drafted", and that the approved form for the cost-base reset election "will be provided in due course".

The Division 296 regulations have been made (F2026L00726), and the ATO describes the earnings that the tax is based on as an adjusted amount drawn from the fund's taxable income.

Trustees therefore know the tax applies, but some of the ATO's views on how particular situations will be treated are yet to be published in a ruling.

Hypothetical example: how Division 296 works on one balance

Hypothetical example: Maria's total super balance is $4 million at 30 June 2027, the test date for the 2026–27 year. Her Division 296 earnings for the year are assumed to be $200,000.

The share of her balance above $3 million is $1 million out of $4 million, or 25%.

Earnings attributed to that share: 25% of $200,000, or $50,000.

Extra tax at 15%: $50,000 multiplied by 0.15, or $7,500.

Because her balance is below $10 million, the additional 10% layer does not apply. The figures are illustrative only, and the actual calculation depends on the ATO's method, the fund's Taxable Income and any cost-base reset election.

The example shows why advisers say clients want certainty before acting: a choice made now, such as whether to make the irrevocable reset election, which uses market values at 30 June 2026 and must be made by the due date of the fund's 2026–27 annual return, can change the outcome for years.

Why 'waiting' is a decision too

Mr Broderick's remarks describe a slowdown rather than a standstill. Clients mid-way through a transaction are still finishing it, he said, and those who must act are acting.

But pausing has its own consequences. Deadlines in the enacted laws keep running regardless of whether a trust bill passes, and the start dates for the CGT and negative gearing changes are fixed in legislation.

For trusts, the picture differs. Because the trust measures are still bills, their final shape could change in the Senate, and many families appear to be waiting to see what survives before restructuring.

The practical lesson in the commentary is that each measure should be tracked separately, according to whether it is law, a bill or still in draft guidance, rather than treated as one blur of "change".

What to watch: key dates

  • 5–6 November 2026: Senate Economics Legislation Committee hearings on the trust tax bills.
  • 13 November 2026: the committee's report is due.
  • Remaining 2026 Senate sitting days: whether the trust bills come to a vote before the summer break.
  • Coming weeks: publication of the ATO's Division 296 law companion ruling, which the ATO says is being drafted.
  • December 2026: the Mid-Year Economic and Fiscal Outlook (MYEFO), with no exact date yet published.
  • 30 June 2027: the first Division 296 test date, and the eve of the CGT and negative gearing changes on 1 July 2027.
  • 1 July 2028: proposed start of the 30% minimum tax on discretionary trusts, if the bills pass.