Trusts and asset protection best practice

The Tax Specialist | 1 Feb 12
 

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Publication date: 01 Feb 12

Source: "THE TAX SPECIALIST" JOURNAL ARTICLE

Abstract:

Discretionary trusts play a very important role in preserving wealth from financial risk, but how they work to achieve this goal is often not well understood.

This article considers the technical attributes of discretionary trusts which provide shelter in times of financial trouble. It also considers judicial intervention which might be seen to interrupt that financial isolation. The article addresses the following matters: why a discretionary trust is prima facie impervious to a trustee in bankruptcy; the claims of a retired trustee against the current trustee; the claims of trustees in bankruptcy or liquidators against income or capital distributions; the reach of the Federal Court decision in Richstar (No 6); and the power of the Family Court in the context of the decision in Kennon v Spry.

Finally, the article considers the extent to which the recently introduced trust streaming rules may impact on an otherwise useful asset protection tool.

Author profile:

Author Photo - Kenneth Schurgott CTA-Life
Kenneth Schurgott CTA-Life
Gordon Cooper is a chartered accountant in sole practice as a tax consultant. He is an Adjunct Professor in the School of Taxation and Business Law (Incorporating Atax) at the University of New South Wales. He is a frequent speaker at seminars having delivered nearly 500 papers and he is a regular contributor to professional publications. Gordon has a long list of professional involvements including: " He was an inaugural member of the Tax Practitioners Board. " He is a former President of the Taxation Institute of Australia. " He is Chairman of the Committee of the Australian Branch of the International Fiscal Association. " He is the Patron of the Australasian Tax Teachers' Association. In June 2003 he was awarded the AM in the Queen's Birthday Honours for. "Services to the tax profession and to the community as an adviser on national taxation and legislative reform, and through education and professional organisations".
Current at 29 January 2016
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