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The Federal Court (Greenwood J) has held that a trust was entitled to offset capital losses of $2,492,653.50 incurred in the 1993 income year against capital profits of $1,932006 derived in the 2001 income year, notwithstanding the submission by the Commissioner that a change of trustee, a change of control of the trust and a change in the unitholders of the trust between those two income years meant that there was a lack of continuity in the trust estate as required by ITAA 1936 and ITAA 1997 (that is, a "resettlement"). A preliminary submission by the Commissioner that the capital losses had not been incurred by the trust was rejected on the basis of both oral and documentary evidence: Clark v FCT [2009] FCA 1401 (Federal Court, Greenwood J, 30 November 2009).

For a copy of the decision, go here


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