Legal news
On 18 January 2023 the Federal Court of Australia handed down its decision in Copeland in his capacity as liquidator of Skyworkers Pty Limited (in Liquidation) v Murace [2023] FCA 14. The decision resulted in Liquidator’s insolvent trading claim against Mr Murace being struck out and costs awarded to the defendant, although the liquidator was then allowed to file a further statement of claim.
Guidance has been provided to liquidators by the Federal Court of Australia in Stone (Liquidator), in the matter of RIC Admin Pty Ltd (in liq) v Mandalinic (No 2) regarding the analysis of financial records required to determine the solvency of a company and what conduct of a director will constitute an unreasonable director related transaction.
On 4 June 2024 the Federal Court of Australia handed down the decision of Fair Work Ombudsman v 85 Degrees Coffee Australia Pty Ltd [2024] FCA. This decision resulted in the Fair Work Ombudsman penalising the Australian franchisor of the 85 Degrees brand $1.44 million for its “systemic failure to ensure compliance within its franchise network” which included underpayments at several of their Sydney franchisee outlets.
In the decision of S&H Investments Pty Ltd and Commissioner of Taxation [2024] AATA 893, the Administrative Appeals Tribunal (AAT), the Tribunal affirmed the decision of the Commissioner of Taxation to assess the taxpayer for the superannuation guarantee charge for failing to pay superannuation for their employee/contractor referred to as “TW”.
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 2022, the decision of the Federal Court in Minerva Financial Group Pty Ltd v Commissioner of Taxation [2022] FCA 1092 raised the question that tax benefits emanating from trustee decisions could be subject Part IVA. At that time, we said we think ‘no’ (see here).
As we’ve noted previously, commercial and industrial properties sold or transferred on or from 1July 2024, will enter the new commercial and industrial property regime. Broadly, the regime will operate such that future transfers will not trigger land transfer (stamp) duty but rather the property will be subject to a (further) set of land tax, known as commercial and industrial property tax (CIPT).
The Administrative Appeals Tribunal (Tribunal) has held in Quy v FCT [2024] AATA 245 that a taxpayer, who was physically in Australia for less than 2 months each year, was a resident of Australian tax purposes.
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.
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.
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.
