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Defining Conjugality in the Family


This paper considers the meaning of the term ‘spouse’ in the context of s272-90 and s272-95 of the Income Tax Assessment Act 1936 (1936 Act). The circumstances in which a Family Trust Election (FTE) may be required and its effect upon the future distributions of the Trust are outlined in order to demonstrate the trustee’s need for certainty.

The uncertainty inherent in this area of the definition of the family group is explored in the light of various conventions of judicial interpretation and with regard to the possible legislative intent behind the use of the word ‘spouse’ in this context.

The paper concludes that despite the need for certainty current legislation cannot provide certainty and therefore requires clarification.

Author profile

Julie Van der Velde CTA
Julie Van der Velde has over 15 years' experience advising South Australian businesses. Her legal practice is focused on taxation and commercial law. Julie acts for clients in business restructures, acquisitions, disposals and mergers specialising in SME tax and commercial issues. She has significant expertise in business succession planning and intergenerational transfers, particularly for high net worth individuals. Julie has practised in both accountancy and law and also facilitates on the Law Society of South Australia's GDLP program and tutors in Equity at the University of Adelaide. - Current at 01 May 2017
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