Sladen Thoughts
Legal industry latest news and insights
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Bendel – UPEs as loans – are the curtains closed?
On 19 February 2025, the Full Federal Court, in FCT v Bendel [2025] FCAFC 15 (Bendel), held that an unpaid present entitlement (UPE) with a corporate beneficiary is not a loan under subsection 109D(3) of Division 7A of the Income Tax Assessment Act 1936 (ITAA 1936).
Courts’ supervisory powers and trust variations addressing incapacity of guardian and appointor
In the West Australian case of Dryandra Investments Pty Ltd v Hardie by her guardian Ian Yorrington [2024] WASC 248 (Dryandra case) the trustee sought orders, pursuant to section 90 of the Trustees Act 1962 (WA), that the Court approve and assent to variations to the trust deed of the Dryandra Trust (Trust).
Sladen Snippet - Proposed Licensing Regime for the Franchising Sector – chance to submit views
In November 2024, the Government introduced a consultation paper proposing the incorporation of a licensing regime for the franchising sector.
Sladen Snippet - PCG 2024/D2 - PSI and Part IVA
On 28 August 2024, the Australian Taxation Office (ATO) published Draft Practical Compliance Guideline PCG 2024/D2 (Draft PCG) on Personal services businesses and Part IVA of the Income Tax Assessment Act 1936.
Appointors sacking trustees to appoint themselves
The power to remove and appoint a trustee is widely accepted to be fiduciary in nature, exercised for the benefit of the beneficiaries of the trust, not the benefit of the appointor.
Section 99B – TD 2024/D2 – you can’t always get what you need
On 31 July 2024, the ATO released draft TD 2024/D2 and draft PCG 2024/D1 on aspects of section 99B.
While we welcome the ATO guidance on section 99B, it is not what taxpayers and advisors want– section 99B requires legislative amendment. However, is the draft ATO guidance what advisor’s need?
Selling to a trust: is it only a matter of time?
If you are selling an asset to a trust, don’t forget about CGT event E2…
Quy v FCT: less than 2 months in Australia … I still call Australia home
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.
Documentary protocols and disclaimers
A recent Full Federal Court decision reflects the diversity of issues which can arise in the complex world of discretionary trusts.
BBlood v FCT: section 100A, more guidance on tax avoidance purpose
The Full Federal Court in the BBlood appeal found for the ATO on section 100A and the taxpayer dividend stripping (albeit on a technical, non-substantive basis).
The 100A analysis was limited to ‘tax avoidance purpose’ with the Full Court holding that, in certain circumstances, the purpose of advisors can be relevant.
2023 VIC Tax Forum Family trust elections, trust losses, and family change
It has become common practice to make family trust and interposed entity elections to deal with carry forward losses and franked distributions without considering the impact on the future of the group.
Guardian AIT: 100A or ATO’s Part IVA angel in disguise?
This time last year, we published an article querying whether the Federal Court decision in Guardian AIT Pty Ltd ATF Australian Investment Trust v FCT [2021] FCA 1619 (First Instance Decision) would ignite an administrative and judicial quest for clarity on the interpretation of section 100A of the Income Tax Assessment Act 1936 (ITAA 1936).
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:
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.
Section 100A: if you want BBlood, you’ve got it: 100A and capital amounts
On 19 September 2022, Justice Thawley of the Federal Court handed down his decision in BBlood Enterprises Pty Ltd v FCT [2022] FCA 1112 (BBlood), the most recent decision on section 100A of the Income Tax Assessment Act 1936. The Australian Taxation Office (ATO) was successful in arguing that section 100A applied.
Can Part IVA apply to trustee discretions? Yes, according to the Federal Court
The recent Federal Court decision of Minerva Financial Group Pty Ltd v Commissioner of Taxation [2022] FCA 1092 (Minerva) signifies that the Federal Commissioner of Taxation (Commissioner) can successfully scrutinise a trustee’s discretion under the general anti-avoidance provisions (Part IVA).
TD 2022/11: ATO finalises views, relief for some taxpayers but a sting for others
We wrote about Draft Taxation Determination TD 2022/D1 (Draft TD) on Division 7A and unpaid present entitlements (UPEs) here. On 12 July 2022, the Australian Taxation Office (ATO) finalised the Draft TD as Taxation Determination TD 2022/11 (Final TD).
When is a unit trust not a unit trust? – when it’s a hybrid trust
Both federal and state tax legislations contain different tax rules for different forms of trusts. The recent Victorian Civil and Administrative Tribunal (Tribunal) decision of Sharlin Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2022] VCAT 378 has provided much-needed clarity and insights into relevant considerations to determine whether a hybrid unit trust is a unit trust or a discretionary trust for the purpose of the land tax exemption for primary production land (PPL).
Section 100A: “oh no not you again”
Does context and purpose narrow the reach of s 100A of the Income Tax Assessment Act 1936?