Published on 17 Oct 09
by TASMANIAN DIVISION, THE TAX INSTITUTE
NB: This is an updated version of Arlene's paper "Trust Busting" presented at the 2009 National Convention.
In Kennon v Spry, the High Court confirmed some of the powers of the Family Court to "look through" family discretionary trusts to the assets held on trust when determining the pool of property to divide between former spouses/de facto partners. The court's exercise of power to set aside transactions gives rise to significant tax issues for beneficiaries and trustees and the power to "look through" the trust is a major limitation to asset protection.
This paper discusses the tax and asset protection issues raised by the High Court's decision (including any developments) and also examines the implications of the Full Family Court's decision (and any developments) in dealing with a party's tax debt well in excess of the matrimonial property in FCT v Worsnop.
Until her recent retirement, Arlene was a Barrister at the South Australian Bar for 17 years. Prior to this she spent 8 years at the Australian Government Solicitor's Office, and several years at the ATO and the Commonwealth Ombudsman's office. At the Bar she appeared and advised in a wide range of Commonwealth and State tax disputes concerning income tax, CGT, GST, stamp duty, payroll tax, land tax and other tax issues. Arlene is experienced in acting for the Commissioner of Taxation and for the range of taxpayers who were in dispute with the revenue authorities or who needed advice on how tax law applies in their case. She has a passion for legal education, especially in tax and trust law. She was awarded life membership of The Tax Institute in 2010 particularly for her work over many years in organising, promoting and providing education through The Tax Institute. She has written a vast number of papers and articles and is a highly sought after speaker.
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17 October 2017