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Can you Mislead or Deceive Someone if You Have Honestly Relied on Your Lawyers Advice? A Case Study on ASIC v Retail Employees Superannuation Pty Ltd

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Can you Mislead or Deceive Someone if You Have Honestly Relied on Your Lawyers Advice? A Case Study on ASIC v Retail Employees Superannuation Pty Ltd

The Federal Court of Australia’s judgment in ASIC v Retail Employees Superannuation Pty Ltd highlights that if a corporation honestly relies on advice from their lawyers that may provide reasonable grounds to defend the making of a representation that concerns the present state of affairs.

The Federal Court found that representations made by Retail Employees Superannuation Pty Ltd (REST) regarding their rules and practice were opinions expressed as to the law based on reasonable grounds due to reliance on advice received from their lawyers and other trusted sources. Therefore, the representations made could not amount to misleading or deceptive conduct.

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When Restructuring Goes Wrong: Lessons from Connelly (liquidator) v Papadopoulos

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When Restructuring Goes Wrong: Lessons from Connelly (liquidator) v Papadopoulos

The Federal Court decision of Connelly v Papadopoulos re TSK Pty Ltd (in liq) highlights some of the implications for professional advisers. directors and officers involved in restructuring of companies and the risks encountered when engaging in restructuring that may be later viewed as asset stripping schemes under the creditor defeating dispositions provisions in the Corporations Act. 

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Bankruptcy: Determining which debts survive or can be recovered from a bankrupt

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Bankruptcy: Determining which debts survive or can be recovered from a bankrupt

If you have been declared bankrupt, or are looking to recover debt from an individual or company that has been declared bankrupt, you may be wondering what happens to debts following a declaration of bankruptcy.

This article sets out what debts are and are not recoverable from a bankrupt person, including specific debts which survive bankruptcy and remain recoverable by creditors even after the bankruptcy ends.

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Part 1: tax consolidation for SMEs series: pros and cons of forming a consolidated group?

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Part 1: tax consolidation for SMEs series: pros and cons of forming a consolidated group?

This is the first article in a series that aims to demystify the application of the tax consolidation rules in Part 3-90 of the Income Tax Assessment Act 1997 for private groups and small and medium enterprises (SMEs).

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An easier and clearer Personal Property Securities Act? The Government outlines proposed changes

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An easier and clearer Personal Property Securities Act? The Government outlines proposed changes

On 22 September 2023 the Commonwealth government released the Personal Property Securities Amendment Bill 2023 and amending regulations for public consultation until 17 November 2023. The aim is intended to simplify the use of the law, in particular the registration process, and clarify its application, especially around enforcement priorities.

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AWE v Clough: The continuing clarification of what constitutes a personal property security interest and the requirements for rectification of out of time registrations

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AWE v Clough: The continuing clarification of what constitutes a personal property security interest and the requirements for rectification of out of time registrations

This case concerned an uncontested application to extend the time for registration of a security interest on the Personal Properties Securities Register (PPSR), requiring consideration of what constituted a ‘security interest’ capable of registration on the PPSR.

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Marriage revokes your will – how is marriage defined?

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Marriage revokes your will – how is marriage defined?

The definitions of spouse, domestic and de facto partner are not consistent across all areas of law.  It may be that in the absence of marriage, a person finds it difficult to evidence that they are:

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Bosanac: presumption of resulting trust v presumption of advancement: High Court tells both to sit down

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Bosanac: presumption of resulting trust v presumption of advancement: High Court tells both to sit down

The High Court in Bosanac v Commissioner of Taxation [2022] HCA 34 culminated a protracted debate on whether to apply the presumption of resulting trust or presumption of advancement in the context of a matrimonial home.

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Draft Taxation Ruling 2022/D1: Do people still listen to disco music?

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Draft Taxation Ruling 2022/D1: Do people still listen to disco music?

After our semi-serious opening statement on the Australian Taxation Office’s (ATO) recently released guidance on section 100A and unpaid present entitlements, this is one of a series of deep-dive articles on that guidance. These articles look at each of the ATO guidance products separately and then we discuss what the overall impact may be.

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“Stamping” Of Trust Deeds In Victoria

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“Stamping” Of Trust Deeds In Victoria

While the application of land transfer (stamp) duty is reasonably straight forward for land transfers such as a purchase of property under a contract of sale, the application of duty in relation to declarations of trust can be complicated.

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Challenging a discretionary decision of A Self Managed Superannuation Fund trustee in respect of the payment of a deceased member’s death benefits

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Challenging a discretionary decision of A Self Managed Superannuation Fund trustee in respect of the payment of a deceased member’s death benefits

The case of Re Marsella; Marsella v Wareham [2018] VSC 312 (13 June 2018) concerned a claim by the widower of the willmaker for further provision from the estate of the deceased pursuant to Part IV of the Administration and Probate Act 1958. 

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Trust vesting – the Commissioner finalises his views

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Trust vesting – the Commissioner finalises his views

On 15 August 2018, the Commissioner finalised his views on trust vesting in Taxation Ruling TR 2018/6. We previously commented on the draft (TR 2017/D10) version of this ruling here.

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Sladen Snippet - ATO extends Division 7A guideline to UPEs under Sub-Trust Arrangements maturing in the 2019 Income Year

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Sladen Snippet - ATO extends Division 7A guideline to UPEs under Sub-Trust Arrangements maturing in the 2019 Income Year

On 15 August 2018, the Australian Tax Office (ATO) updated Practical Compliance Guideline (PCG) 2017/13 to extend its application to Division 7A sub-trust arrangements adopted in accordance with Practice Statement Law Administration 2010/4 (PS LA 2010/4) that mature in the 2019 income year.

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CGT marriage breakdown rollover does not apply to entities controlled by former spouses

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CGT marriage breakdown rollover does not apply to entities controlled by former spouses

In Ellison v Sandini Pty Ltd [2018] FCAFC 44, the Full Federal Court overturned decision which allowed Mr Sandini (the Taxpayer) to benefit from Capital Gains Tax (CGT) marriage breakdown rollover for the transfer of shares to an entity controlled by his former spouse, pursuant to a Family Court Order (FCO).

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Sladen Snippet: TD 2017/20 confirms the ATO interpretation of “distributes” for the purpose of the FTDT

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Sladen Snippet: TD 2017/20 confirms the ATO interpretation of “distributes” for the purpose of the FTDT

As previously reported in June this year, the Australian Taxation Office (ATO) published the Draft Taxation Determination TD 2017/D1 altering their previous published interpretation of the meaning of “distributes” for the purposes of the family trust distribution tax (FTDT).

The draft tax determination has now been published in its final form as TD 2017/20, confirming that FTDT can apply where there is a “distribution” to a person who is not a beneficiary of the trust.

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Sladen Snippet - ATO provides additional 7 years to repay UPE under sub-trust arrangements maturing in the 2017/18 income years

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Sladen Snippet - ATO provides additional 7 years to repay UPE under sub-trust arrangements maturing in the 2017/18 income years

Practical Compliance Guideline (PCG) 2017/13 confirms the ability for a sub-trust arrangement using the 7-year option 1 investment agreement to be converted into a compliant loan, as described under section 109-N of Income Tax Assessment Act 1936 (ITAA 36). The ability to refinance UPE for an additional 7 years may be advantageous to taxpayers that would otherwise have been required to repay such arrangements by either 30 June 2017 or 30 June 2018.

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Sladen Snippet - ATO guidance on liability of a legal personal representative of a deceased person

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Sladen Snippet - ATO guidance on liability of a legal personal representative of a deceased person

The Australian Taxation Office (ATO) has released for public comment draft Practical Compliance Guideline (PCG) 2017/D12, which gives guidance to the legal personal representative (LPR) of a deceased person as to circumstances where the LPR may be personally liable for the deceased’s tax liability.

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Sladen Snippet - More flexible small business restructure rollover and new corporate tax cuts passed by Senate

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Sladen Snippet - More flexible small business restructure rollover and new corporate tax cuts passed by Senate

The Treasury Laws Amendment (Enterprise Tax Plan) Bill 2016 was recently passed by the Senate containing amendments to progressively reduce the corporate tax rate and increase the small business turnover thresholds for access to small business tax concessions.