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Varying trusts after Clark paper


The Commissioner’s loss in Clark’s case resulted in the withdrawal of its Statement of Principles. This paper examines how this decision and the withdrawal of the Statement of Principles has affected the variation of trusts, including:

  • a closer look at the decision in Clark
  • the Commissioner’s position after Clark and Taxation DeterminationTD 2012/21
  • variation powers under the trust deed and the Trustee Act
  • common variation scenarios:
    • change of control – trustees, appointers and guardians
    • adding income definition so removing existing beneficiaries
    • adding new beneficiaries
    • changing the vesting date
    • changing the jurisdiction of the trust
  • options where there is uncertainty regarding a power to vary
    • removal of beneficiaries under the terms of the trust deed
    • disclaimer of interest
    • application to the Supreme Court.

Author profile

Andrew O'Bryan CTA
Andrew is a Partner at Hall & Wilcox Lawyers and provides advice on the application of a wide range of taxation. He has substantial knowledge of taxation and commercial practice and advises his clients on income tax, capital gains tax, tax audits and reviews, fringe benefits tax, business structuring and transactions, liquidations and reconstructions, superannuation, retirement planning, business succession, estate planning, and philanthropy. Andrew advises accounting and legal firms on their clients’ affairs. He also draws clients from industry, commerce and high-net-worth private family groups. One of his main interests is advising private business owners on the transition of management and control of family businesses to the next generation. Andrew has been recognised in the The Best Lawyers in Australia in Tax Law every year since 2014 and is a leading tax lawyer in Victoria in Doyle's Guide to the Australian Legal Profession. - Current at 12 November 2019
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