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Varying trusts after Clark presentation

Published on 13 Mar 13 by VICTORIAN DIVISION, THE TAX INSTITUTE

The Commissioner’s loss in Clark’s case resulted in the withdrawal of itsStatement of Principles. This presentation 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 interesto application to the Supreme Court.

Author profile:

Author Photo - Andrew O'Bryan CTA
Andrew O'Bryan CTA
Andrew is a senior tax partner at Hall & Wilcox Lawyers. He has over 25 years' experience giving expert tax advice to private business and wealthy family groups. He has particular expertise in the tax aspects of succession planning and in managing complex disputes with the Australian Taxation Office. Current at 21 June 2016 Click here to expand/collapse more articles by Andrew O'BRYAN.
 
Individual sessions

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