Legal news
In the decision of Application by Gainer Associates Pty Ltd [2024] NSWSC 1437, the Court found that, due to the lost trust deed for the Werner Thelen Family Trust (Trust), the corporate trustee of the Trust (Gainer Associates Pty Ltd – referred to as Gainer) would hold the assets purportedly held for the Trust on resulting trust for the sole beneficiary the late Werner Thelen (Werner), husband of the late Gail Thelen (Gail).
In a case run by Sladen Legal, Merristock Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2024] VCAT 535, the taxpayer has successfully appealed against a Victorian State Revenue Office (SRO) determination that land owned by the taxpayer was not eligible for the primary production land tax exemption.
The High Court has dismissed an appeal by Godolphin Australia Pty Ltd (Godolphin) and confirmed that it cannot claim the primary production land tax exemption, as it was unable to show that the “dominant use” of its properties was for primary production where it also had substantial horseracing activities. The decision illustrates the issues that can arise when primary production land is used as part of business models that include other interrelated activities.
On 14 May 2024, the State Taxation Amendment Bill 2024 (Vic) (the Bill) was released after having its second reading speech in the Victorian Legislative Assembly.
As noted previously, the recent Administrative Appeals Tribunal (AAT) decision of BPFN and Commissioner of Taxation (Taxation) [2023] AATA 2330 (28 July 2023) (BPFN) had struck a blow to the ATO’s strict approach to non-arm’s length income (NALI) and taken a more general commercial approach to NALI.
In the decision of Mackie v Commissioner of Taxation (Taxation) [2024] AATA 619 (3 April 2024), the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the Commissioner to decline to exercise the discretion in section 291-465(1) of the Income Tax Assessment Act 1997 (Cth) (ITAA 97) to disregard or allocate to another year the taxpayer’s concessional superannuation contributions.
The Victorian State Government has introduced a highly anticipated bill to implement the new Commercial and Industrial Property Tax with only three months to go until the 1 July 2024 start date. Those looking to acquire commercial or industrial properties or plan restructures within existing corporate/family groups should consider the interaction of the new regime with existing taxes.
In the decision of Kirk as trustee of the Property of Smith (a Bankrupt) v Smith [2024] FCA 240 (15 March 2024) the Federal Court held, among other things, that a transfer of superannuation from the husband to his wife’s superannuation was no longer protected as an interest of the bankrupt in a regulated super fund under section 116(2)(d)(iii)(A) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).
In the decision of Tratter v Aware Super [2024] FCAFC 36 the Full Federal Court dismissed the appeal by the deceased super fund member’s mother against the super fund trustee’s apportionment of 30% to the mother and 70% to the deceased’s de facto spouse.
In the decision of Stern v Commissioner of Taxation [2024] FCAFC 21 the Full Federal Court found against the taxpayer, who raised an argument that Division 294 of the Income Tax Assessment Act 1997 (ITAA 97) should not be interpreted such that both his pension was to be commuted under a commutation authority issued by the Australian Taxation Office (ATO) due to his pensions exceeding his transfer balance cap, and that he also must pay excess transfer balance tax for exceeding his transfer balance cap.
The NSW Supreme Court decision of Cihan Family Trust v Cihan Family Superannuation Fund [2023] NSWSC 1289 found that a transfer of land from a family trust to a SMSF should be reversed on the basis of unconscionable conduct of a son against his father.
The case of Corbisieri v NM Superannuation Proprietary Limited [2023] FCA 1319 involved an appeal by the mother of a deceased against the decision of the Australian Financial Complaints Authority (AFCA) to uphold a BDBN to benefit the de facto spouse of her late son, which was to be funded out of life insurance proceeds in AMP Superannuation.
In this Judgment of the NSW Supreme Court, a binding death benefit nomination (BDBN) signed on the date of death of the sole member of a self managed superannuation fund (SMSF) was upheld. Challenges to the BDBN’s validity, by the SMSF trustee and two of the deceased’s executors, based on lack of capacity and unconscionability both failed.
The Federal Government’s Mid-Year Economic and Financial Outlook 2023-24 (MYEFO) (released on 13 December 2023) has again raised the legality of the ability of the States to impose foreign purchaser land transfer (stamp) duty surcharge and foreign owner land tax (together, the foreign surcharges).
It has been a long held view of the State Revenue Office (SRO) that if beneficiary loans are forgiven in connection with a distribution of real estate from a discretionary trust to a beneficiary, then the duty exemption in section 36A of the Duties Act 2000 (Vic) will not apply and the transfer will trigger land transfer (stamp) duty.
