Capital gains, discretionary trusts, and foreign residents – first blood to the ATO
The Australian Taxation Office (ATO) position for several years has been a foreign beneficiary distributed a capital gain made by an Australian discretionary trust on an asset that is not taxable Australian property is assessed on the capital gain even though that would not occur if the foreign resident made the gain directly, or through a fixed trust. Some commentators disagree with that view, the Federal Court in a recent case agreed with the ATO position in what may be the first skirmish of a battle through the courts on this issue.
Sladen snippet – Victorian discretionary trust deeds must be amended by 1 March 2020 to avoid foreign duty surcharge
The State Revenue Office (SRO) have announced that its current “practical approach” in relation to whether trustees of discretionary trusts trigger the foreign duty surcharge will cease from 1 March 2020.
Sladen Snippet - It’s not too late for your NSW discretionary trust holding residential land
As outlined in our previous article, the State Revenue Further Amendment Bill 2019 (NSW) was introduced to NSW Legislative Assembly on Tuesday 22 October 2019, and proposed to make changes to New South Wales land tax and duty legislation.
Sladen Snippet - can mistakes in trust deeds be rectified?
HOW FAR CAN A SPLIT TRUST BE SPLIT?
The Australian Taxation Office (ATO) sought to address this question through a public determination (first issued in draft as TD 2018/D3) that considered a range of features of an arrangement, that when considered together, were deemed to have resulted in the creation of a new trust over assets formerly held by an original trust.
“The new normal – ATO announces increasing review and tax assurance activity in relation to private groups”
Recently, the Australian Taxation Office (ATO) announced an expansion to its ‘Tax Avoidance Taskforce’, increasing its focus on “supporting and ensuring private groups and high wealth individuals pay the right amount of tax”.
Sladen Snippet - Government introduces Bill on the taxation of testamentary trusts
The Federal Government has introduced the Treasury Laws Amendment (2019 Measures No. 3) Bill 2019 (Bill), which seeks to ensure that tax concessions available to minors on income on distributions by the trustee of a testamentary trust will only apply in respect of income that is generated from assets of the deceased estate transferred to that testamentary trust (or the proceeds of the disposal or investment of those assets).
Sladen snippet – does your discretionary trust hold residential land in NSW? If so, you may need to amend its deed by 31 December 2019
As outlined in our previous article, under the proposed changes to New South Wales land tax and duty legislation, a trustee of a discretionary trust (including testamentary trusts) will be deemed to be a “foreign trust” if the terms of the trust do not prevent a foreign person from being a beneficiary of the discretionary trust. Importantly, these changes are proposed to have retrospective effect to the 2017, 2018 and 2019 land tax years and can catch dutiable transactions back to 21 June 2016.
Part 5: Australian residents, foreign trusts, and foreign funds
Sladen Snippet – NSW Discretionary Trusts to be Deemed Foreign Trusts Under Proposed Legislation
Australian trusts, capital gains, and foreign beneficiaries: more controversy, more angst?
The Australian Taxation Office (ATO) recently released Taxation Determinations TD 2019/D6 and TD 2019/D7 (together the Determinations) that concern Australian discretionary trusts distributing capital gains to foreign beneficiaries.
CGT issues when creating and dealing with UPEs
In December 2015, an article written by Sladen Legal's Sam Campbell was published in the Tax Institute’s Journal, Taxation in Australia.
The article discusses the tax issues raised when creating and dealing with unpaid present entitlements by trusts, including CGT issues, which should always be carefully considered before embarking on a proposed transaction.
Sladen Snippet - “Statute barred” loans and the Maximum Net Asset Value Test
The Full Court of the Federal Court has dismissed the taxpayer’s appeal in Breakwell v Commissioner of Taxation [2015] FCA 1471 and confirmed the earlier Administrative Appeals Tribunal decision to include an allegedly statute-barred loan of $1.1m in the calculation of the taxpayer’s net assets for the maximum net asset value (MNAV) test when determining the taxpayer’s eligibility for small business CGT concessions.
The taxpayer was the beneficiary and trustee of a family trust (ABFT), which was in turn the beneficiary of a unit trust (ETUT). In July 2007 the ETUT sold its finance broking business for $500,000. In its 2008 income tax return, the ETUT excluded the capital gain from the sale of the business by applying the small business CGT concessions.
CGT Hotspots in Restructuring Trusts in Estate Planning
On 22 October 2015, Rob Jeremiah delivered a presentation at the ‘Taxation Aspects of Estate Planning and Business Succession – The First Annual Symposium’ held in Melbourne by Television Education Network.
At this event, Rob presented a paper called ‘CGT Hotspots in Restructuring Trusts in Estate Planning,’ written by Sam Campbell, Will Monotti, Ashleigh Eynaud and himself.