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Failed trust distributions: Their tax consequences

Published on 01 Oct 13 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

There is a range of issues that can potentially undermine the intentions of a trustee when attempting to make distributions from the trust to beneficiaries. Failure to address methodically each potential issue in a timely way will lead to unintended outcomes that may be impossible to remedy once discovered. Further, there is increasing evidence that the Australian Taxation Office is acutely aware of many of the issues, and actively conducts compliance activity in the area. This article focuses on a number of the more common scenarios where purported distributions fail, in the context of a typical family discretionary trust with a range of beneficiaries, including family members and related trusts and companies. It also addresses the potential resulting tax consequences.

The article considers trust distributions to a “beneficiary”, distributions to particular beneficiaries, ATO requirements for tracing distributions, areas of ATO focus, and the ramifications of failed distributions.

Author profiles

Matthew Burgess CTA
Photo of author, Matthew BURGESS Matthew co-founded specialist firm View Legal in 2014, having been a lawyer and partner of one of Australia’s leading independent law firms for over 17 years. Matthew’s passion is helping clients successfully achieve their goals. Matthew specialises in tax, and estate and succession planning, providing strategic advice to business owners and high net worth individuals. He has been recognised in the Best Lawyers list since 2014 in relation to trusts and estates and either personally or as part of View Legal in Doyles since 2015 in relation to taxation, and since 2017 in relation to wills, estates and succession planning. In part leveraging off the skills he has developed working in the SME market space, Matthew has been the catalyst for a number of innovative legal solutions for advisers and their clients, including establishing Australia’s first virtual law firm. - Current at 13 August 2018
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Darius Hii CTA
Darius works alongside accountants and other advisors to provide comprehensive structuring advice in relation to business and personal succession and structuring which includes: 1 preparing effective wills and estate plans for intergenerational asset protection and transfer; 2 wealth protection strategies; and 3 implementing tax effective business succession and restructuring strategies. In addition, Darius has developed a keen interest in and provides advice in relation to trusts, superannuation, land tax and payroll tax. - Current at 16 September 2015
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