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The Clark decision: Possible consequences for CGT event E4?
Published on 01 May 14 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE
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
Liam Polkinghorne
Liam is a Lawyer at McCullough Robertson. - Current at 01 May 2014Tara Lucke FTI
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 2015Matthew Burgess CTA
