2023 Section 100A

Section 100A and trust reimbursement agreements

Published Date: 1 Jun 2023


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The provision of greater clarity and certainty around the operation of s 100A has not been progressed as far as may have been hoped by the issue of TR 2022/4. The opportunity has not been taken to correct positions reflected in TR 2022/D1 which are not grounded on the exact words of s 100A or the case law (old and new). These positions include how TR 2022/4 fails to recognise the lack of tax purpose as an exclusion from the structure of s 100A, rather than representing the existence of tax purpose being a requirement. Issues also remain around the meaning of “agreement”. On the critical matter of what is “ordinary family dealing”, TR 2022/4 has unhelpfully sought to “repackage”, but still to maintain, the “predication test” reasoning from Newton’s case (relating to tax purpose) by introducing the new concept of a “core test” with an excessive focus on tax objectives.

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2023 Section 100A

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