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The ATO advises that following the decision in FCT v Clark [2011] FCAFC 5 (21 January 2011), draft Taxation Determination TD 2012/D4 sets out when changes to a trust may give rise to CGT consequences. The determination indicates that a valid amendment of a trust under an existing power in the trust deed will not generally have CGT implications.

This differs from the ATO's previous position in the now withdrawn Creation of a new trust - Statement of Principles August 2001. The Statement was withdrawn on 20 April 2012.

The ATO advises that if agents have clients who have been assessed on the basis of the withdrawn position, they may request an amendment to their assessments if they are within the time limit to amend.


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