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Getting trusts right: lessons from the Federal Court paper


Many tax problems concerning trusts are really problems with trusts. Justice Spender is the most senior judge in the Federal cCourt and in his 22 years has heard numerous trust cases including many dealing with tax issues and he has seen the trusts mistakes made that shouldn’t have been made. This paper gives some practical guidance so we, as tax practitioners can avoid mistakes when dealing with trusts:

  • understanding and correctly using trustee’s powers and duties
  • getting terms of distributions right
  • getting trust records right
  • nasty surprises when tax liability increased by ATO
  • present entitlement (real or deemed) what does it really mean for tax purposes in sec 95(1).

Author profile

Hon Jeffrey Spender
Photo of author, Jeffrey SPENDER The Hon. Justice Jeffrey Spender, QC, was a Judge of the Federal Court of Australia from May 1984 until his retirement in July 2010. In April 1985 he was appointed an additional judge of the Supreme Court of the Australian Capital Territory. In 1986 he was appointed a Presidential Member of the Administrative Appeals Tribunal, in 1994 a judge of the Industrial Relations Court of Australia, and in 2001 a judge of the Court of Appeal of the Kingdom of Tonga. On his retirement he was the senior judge of the 44 judges holding Federal Court commissions, after Chief Justice Patrick Keane. Over the 26 years of service on the Federal Court, he was involved in many significant cases within the jurisdiction of the Federal Court, particularly in relation to taxation, bankruptcy, trade practices and intellectual property. - Current at 13 July 2011
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This was presented at South Australian Convention: In Tune with Tax .

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