Published on 01 Feb 13
by "THE TAX SPECIALIST" JOURNAL ARTICLE
For various reasons, it may become necessary or desirable to extend the life of a trust beyond the original vesting or perpetuity date. The question may then arise whether such an extension constitutes an amendment to the trust, or amounts to a resettlement, thereby perhaps triggering a CGT event or other taxing point. A detailed knowledge of the statutory history must be brought to bear on each problem, as some reforms are comparatively more modern than the deeds about which advice is sought, and it is not always clear which law has applied from time to time to a settlement.
This article discusses recent developments in the approach of the Commissioner of Taxation to creation and amendment of trusts, and Australian and English case law on the power to amend. The article concludes with discussion of practical matters including the kinds of inquiries advisers should make and proposals which may be considered.