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Aussiegolfa and Hart – Important guidance for SMSFs

Published on 01 Dec 18 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

Two recent decisions provide much needed guidance in respect of self-managed superannuation funds. In Aussiegolfa, the Full Court applied the general law conception of a trust and determined that a sub-fund was a distinct trust, with the result that the in-house asset test was breached, notwithstanding an express provision in the constitution to the contrary. Further, their Honours held that the sole purpose test could be met if a related party has the use of the SMSF’s asset, where market rent is paid. In Hart, the Administrative Appeals Tribunal dealt with a potential consequence of failing to meet those fundamental tests, namely, the disqualification of a trustee (or its directors), and serves as an important reminder of the wider implications that disqualification may cause.

Author profile

Angela Lee ATI
Angela practices predominantly in taxation and administrative law. She acts for the taxpayer and for the Commissioner, led and unled, in federal and state taxation matters, including on appeals. She is a nationally accredited mediator. Angela is Deputy Chair (Melbourne) of the Law Council of Australia’s Business Law Section's Tax Committee. She is also a member of the ATO's Private Groups Stewardship Group and various committees at the Tax Institute, Australian Bar Association and the Victorian Bar’s Tax Bar Association. Angela has been recognised as a ‘leading’ tax barrister in Doyle’s Guide and a ‘rising star’ in Chambers Asia-Pacific Rankings. - Current at 30 September 2019
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