Legal news
The decision of the Victorian Court of Appeal in Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd 1 (Rowley Super) concerns the ability of a liquidator to claw back contributions made to a superannuation fund where such contributions are made as a result of a director breaching his fiduciary duties to the corporate trustee of a discretionary trust.
Our previous article Tax disputes – what to do discussed some of the general stratagems taxpayers can employ when in dispute with the Australian Taxation Office (ATO).
As previously highlighted, quick and early professional advice, assessment of the nature and extent of a dispute and engagement with the ATO can lead to better ultimate outcomes.
Similarly, there are certain things that a taxpayer in dispute with the ATO should not do
The Australian Tax Office (ATO) has issued ATO Interpretative Decision (ATO ID) 2015/8 providing further guidance to trustees of unit trusts seeking to satisfy the basic conditions for access to the capital gains tax (CGT) small business concessions.
The ATO ID states where the trustee of a unit trust has the power to accumulate income, that does not of itself cause the unit trust to fail the fixed trust tests relevant for the purposes of calculating an entity’s small business participation percentage in the trust (item 2 of the table in subsection 152-70(1) of the ITAA 1997).
The Queensland Supreme Court decision of Munro v Munro has found that a binding nomination signed by a member of an SMSF was invalid because it did not strictly comply with all of the provisions of the fund deed and that near enough is not good enough.
On Thursday 19 March the Australian Taxation Office (ATO) released their program blueprint “Reinventing the ATO”. The ATO stated that the blueprint describes the kind of experience that Australians expect to have when they deal with the ATO and that it will guide everything that the ATO does in the coming years.
The ATO state that the blueprint has been in development for close to 12 months and has had input from thousands of different people involved in different market segments, members of the accounting and legal professions, other agencies and ATO staff.
Parent company of law firms Sladen Legal and Harwood Andrews – The Lantern Legal Group Pty Ltd – has been awarded certification as a B Corporation.
The Lantern Legal Group joins businesses such as well-known adventure apparel brand Patagonia, thriving online marketplace Etsy and ice-cream company Ben & Jerry’s to be awarded with the certification.
As the old saying goes there are two certainties in life; death and taxes. Every man, woman, child and business entity in this country, whether they realise it or not, will have their day-to-day lives impacted by Australian taxation laws whether in their work, what they buy, their assets or investments, how their business operates or the cost of goods and services.
As it is the Australian Taxation Office (ATO) that administers and enforces Australian taxation laws it pays to know what to do should you ever wish to dispute a decision by the ATO. Fundamentally, if you do not agree with a decision made by the ATO in relation to your taxation liability or position you are in dispute. The real question is what are you do about any such dispute.
Underpinning any discussion of the shape and demographics of Australia into the future must consider migration.
Recently, the Commonwealth government released the ‘2015 Intergenerational Report’ which assesses the long-term sustainability of current Government policies and how changes to Australia’s population size and age profile may impact on economic growth, workforce and public finances over the next 40 years.
What is one of the first questions the Shark Investors ask the hopeful start up business owner contestants on the Channel 10 television show “Shark Tank”?
Do you have a patent and trade mark?
There have already been some amazing inventions pitched before the Sharks. Full of creativity and innovation, many of the business owners have developed a prototype for their invention and some have started trading prior to seeking investment from the Sharks. The contestants are not coming to the Sharks with just an idea. And lucky for the contestants that they don’t because it appears as though the Sharks are looking for more than just a significant percentage of their businesses. The Sharks are seeking what all investors seek – security for their investment.
In January 2015, the first part of a two-part article, written by Sladen Legal's Phil Broderick, was published in the Tax Institute’s Journal, Taxation in Australia. This article considers the tax and regulatory issues of SMSFs undertaking property development either directly or through structures such as trusts.
In the decision of Australian Annuities v Rowley Super, the Victorian Court of Appeal has held that over $1.6 million of super contributions made by a discretionary trust and members to a self managed superannuation fund (SMSF) could be clawed back to a liquidator on the basis that the director of the corporate trustee breached his fiduciary duties to the corporate trustee.
Following last year’s consultation process with employers and interest groups in relation to current impediments and opportunities for streamlining the workplace gender equality reporting process, the Minister for Employment, Senator Eric Abetz, has announced a series of reporting amendments designed to ease the reporting obligations for employers.
No changes have been made to the gender equality framework under the Workplace Gender Equality Act 2012 (Act).
The recent Federal Court case of Krok v Commissioner of Taxation has provided a reminder that a taxpayer may impliedly waive their right to legal professional privilege by disclosing documents which refer to the purpose and reasoning of legal advice. As a result of the implied waiver, the taxpayer may be required to discover documents that would otherwise have been protected by legal professional privilege.
Sladen Legal is delighted to announce the appointments of Leneen Forde and Louise Houlihan (formerly partners of Cornwall Stodart Lawyers) as principals of the firm.
Louise is joined by senior associate, Jane O’Brien, and associate, Joanna Shields (also formerly of Cornwall Stodart Lawyers) and together they will strengthen Sladen Legal’s existing Employment, Industrial Relations and Occupational Health and Safety team.
Leneen has joined the existing litigation group and new recruit, Lawyer, Andrew Blyth, forming Sladen Legal’s new Commercial Disputes team.
This article was written by Renuka Somers for the Tax Institute’s Journal, Taxation in Australia, published in November 2014.
It discusses some of the taxation and trusts issues encountered when structuring family law settlements. Managing these issues appropriately through careful planning and the preparation of appropriate documentation can ensure the best financial and taxation outcome for clients.
The Australian Taxation Office (ATO) has set out its view in ATO Interpretative Decisions, ATO ID 2015/2 and ATO ID 2015/3 that the superannuation laws and tax laws prohibit superannuation death benefits from being paid by mere journal entries.
In the ATO IDs, the taxpayer/beneficiary and self managed superannuation fund (SMSF) trustee wished to effect the death benefit to the beneficiary by the transfer of money from the deceased member's account, to the beneficiary's own account in the SMSF by way of journal entry (to save on transactions costs). The ATO noted that set offs can occur in a superannuation context, but that there needs to be “mutual liabilities between the taxpayer and the SMSF and there is an agreement between those parties to set-off the liabilities”. Here, the ATO found there was “not a mutual liability in this case as the taxpayer does not have a liability to the SMSF”.
Self-managed superannuation funds1 (SMSFs) have been carrying on property development activities ever since they came into existence. Such activities are either done directly by the SMSF or more commonly through a structure (typically, a trust). Yet, despite this, there is still a common concern that such activities will cause the SMSF to become non-complying, or subject to penalties, on the basis that such activities, and in particular undertaking a property development business, are prohibited
This article was written by Renuka Somers for the Tax Institute’s Journal, “Taxation in Australia”, and published in April 2014.
This article discusses the complexity associated with a trust satisfying the maximum net asset value test for the purposes of accessing the capital gains tax (CGT) small business concessions, where it is unclear whether an unpaid present entitlement would be classified as a liability relating to the CGT assets of the trust.
People are generally aware of the risk of personal liability as a director. For example, directors can find themselves personally liable for debts to employees, for tax debts and penalties owed to the Australian Tax Office or for breaches of The Corporations Act 2001 ("the Act").
However, the Act itself provides little guidance or limitation in defining who is a director. A director may be anyone who acts in a position of a director, or someone who gives instructions or expresses wishes and the directors of the company are accustomed to act in accordance with those instructions or wishes. The result is that a trusted company advisor can, unwittingly, become liable as if they were a formally-appointed director.
