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Changing perpetuity periods and vesting dates


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.

Author profile

David Marks QC CTA
David is a commercial Silk at the Queensland Bar practising principally in tax. He has a broader practice in commercial litigation, trusts and estates, and administrative law. He contributes to the life of the profession through his committee work for The Tax Institute and other professional bodies. He is a Chartered Tax Adviser and a registered Trust and Estates Practitioner. He received The Tax Institute’s Meritorious Service Award in 2013. David serves on the disciplinary panel of an international practitioner association. - Current at 12 February 2021
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