Sladen Snippet - ATO attempts to read down NALI defeat in BPFN decision
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.
Mackie– Contributions count when cleared funds are received, not when you press send – no special circumstances
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.
Bill introduced to implement new Commercial and Industrial Property Tax that progressively replaces Land transfer (stamp) duty from 1 July 2024
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.
Sladen Snippet - Kirk - superannuation removed no longer protected from creditors
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).
Sladen Snippet - Tratter - non-binding nomination considered but not followed
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.
Significant changes to Victorian land tax assessments to result in higher land tax bills
Stern – Transfer Balance Account calculated to include Defined Benefit Pension – in accordance with the operative provisions, not the guide
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.
NSW taxpayer denied Stamp Duty Exemption as Deed ‘Agreement to Transfer’ (and dutiable) and not ‘Transfer of Property’ in Imbree
On 24 January 2024, in Imbree v Chief Commissioner of State Revenue [2024] NSWCATAD 22 (Imbree) the NSW Civil and Administrative Tribunal (Tribunal) held land transfer (stamp) duty was payable with respect to transfer of property to a superannuation fund as the Deed was held to be an ‘agreement to transfer’ (and dutiable) and not a ‘transfer of property’ and therefore did not qualify for exemptions.
Federal legislation introduced to allow States to impose foreign surcharge stamp duty
Khalil - Discretionary trust triggers foreign land tax surcharge due to incorrectly drafted exclusionary clause
This is a cautionary tale for ensuring that discretionary trust deeds are amended correctly so that “foreign” land transfer (stamp) duty and land tax surcharges are not triggered. Unfortunately, in the decision of Khalil & Associates Pty Ltd ATF The George Khalil Family Trust v Chief Commissioner of State Revenue [2024] NSWCATAD 23 (Khalil), the NSW Civil and Administrative Tribunal (Tribunal) found the particular amendment did not prevent the triggering of such a surcharge.
Vacant Residential Land Tax Changes and Significant Actions Required by Landowners
Holiday homes to be hit by Victoria’s vacant residential land tax unless usage documented
Sladen Snippet - Cihan - Transfer of land to an SMSF reversed for unconscionable dealing
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.
Sladen Snippet – Corbisieri – BDBN invalid due to relationship breakdown
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.
Sladen Snippet – van Camp – deathbed BDBN found to be valid
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.
New Year – New Changes: Top 20 Victorian State Tax Measures From 1 January 2024, Including Vacant Residential Land Tax Changes
Victoria has a wide range of significant State tax changes commencing 1 January 2024 which impact numerous individuals, businesses, and land holders. Many were introduced under the State Taxation Acts and Other Acts Amendment Act 2023 which received Royal Assent on 12 December 2023.
Are Foreign Surcharge Stamp Duty and Land Taxes Illegal?
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).
Goodbye stamp duty (eventually) and hello (more) land tax for commercial and industrial property from 1 July 2024 – Further details released
On 11 December 2023, the Victorian State Government released details available here (including a useful information sheet available here) on the design of the new annual commercial and industrial property tax set to eventually replace land transfer (stamp) duty (stamp duty) for qualifying properties.
Baullo – Forgiveness of beneficiary loans trigger land transfer (stamp) duty for a distribution of a property from a trust
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.