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The Clark decision: Possible consequences for CGT event E4?


An article entitled “Fixed trusts and unit trusts: one and the same?”, which was published in the December 2013/January 2014 issue of this journal, considered a number of aspects of fixed trusts and unit trusts. Questions have been raised about comments that CGT event E4 should apply only to fixed trusts and, by implication, not unit trusts. This article explores the various issues, including the potential consequences of the decision of the Full Court of the Federal Court in FCT v Clark, and the relevance of ATO pronouncements.

The authors conclude that it is arguably possible to vary a trust deed to limit the impact of CGT event E4 where the trust is not a fixed trust. However, where a trust satisfies the definition of a fixed trust, or has a prohibition on variation as outlined, there will be no ability to leverage off the Clark decision to minimise the potential application of CGT event E4.

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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Tara Lucke
Tara is a director and co-founder of the specialist law firm, View Legal Pty Ltd. Her favourite aspect of her work is getting to know her clients’ business and family. To help her clients achieve their goals, Tara places high importance on working collaboratively with their existing advisers to deliver effective and appropriate solutions for tax planning, estate and business succession planning, and asset protection. As a founder of View Legal Pty Ltd, Tara is committed to building a law firm that she would choose to use herself. To this end, she is passionate about exploring innovations in the legal industry, particularly in relation to using technology and fixed pricing to provide quality solutions and price certainty for clients. Tara is a fellow of The Tax Institute and is regularly published in Australia’s leading monthly tax journal, The Tax Institute’s Taxation in Australia and the leading weekly tax journal, Thomson Reuters’ Weekly Tax Bulletin. - Current at 07 April 2015
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Liam Polkinghorne
Liam is a Lawyer at McCullough Robertson. - Current at 01 May 2014


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