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The ATO has issued two Decision Impact Statements in relation to the litigation in Howard v FCT.

One Decision Impact Statement concerned whether an award of equitable damages was received by the taxpayer in his personal capacity or as constructive trustee for a company (Disctronics Ltd) or was assigned such that it was otherwise not derived beneficially by the taxpayer. In Howard v FCT [2014] HCA 21; 2014 ATC 20-457; (2014) 309 ALR 1, the High Court held that he had derived it in his personal capacity. The Decision Impact Statement states that the "views expressed by the High Court are consistent with the Commissioner's view and current practices".

The other Decision Impact Statement concerned whether distributions of trust corpus received by an Australian resident individual in the 2006 income year from a Jersey Trust were assessable income of the taxpayer in that year. In Howard v FCT [2012] FCAFC 149; 2012 ATC 20-355; 206 FCR 329, the Full Court of the Federal Court held that the amounts received by Mr Howard were included in his assessable income under s 99B(1) of ITAA 1936. Special leave to appeal to the High Court was refused on 8 November 2013 - see [2013] HCATrans 268.

Although the decision was favourable to the Commissioner, comments by the judge at first instance (Jessup J) in relation to what was essentially a bare trust raised issues which the Decision Impact Statement deals with as follows:

"This approach [of Jessup J to treat the bare trust as a distinct trust] is consistent with the Commissioner's view as expressed in the Decision Impact Statement for Colonial First State Investment Ltd v Commissioner of Taxation [2011] FCA 16 that:

'... so-called 'bare trusts' (including those referred to as nominee or custodian arrangements) are recognised for all income tax purposes (except pursuant to relevant CGT provisions and in cases materially the same as those in Colonial First State)'.

Nonetheless, as stated in that DIS:

'... the Commissioner understands that there is a current practice of essentially ignoring bare trusts for most income tax purposes, except in situations where the trustee has an obligation to withhold tax or is otherwise liable to pay tax in respect of a beneficiary (for example, pursuant to section 98 of the ITAA 1936)...'

The Commissioner therefore concluded in the DIS that:

'... notwithstanding his view on this issue, the Commissioner will not generally seek to disturb the current practice (as described above) while [reform options to address this issue] are being considered [by Government].'

Amendments to the law to address the position of bare trusts of the type contemplated in the Colonial First State DIS have not to date been legislated. However, in recognition of the continued prevalence of the practice of essentially ignoring bare trusts for most income tax purposes, and the minimal risk associated with this practice in most instances, the Commissioner proposes to maintain the approach to bare trusts that he has taken in that DIS. We propose to consult with practitioners about the best way to more formally restate this approach."

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