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Taxing private trusts – A moving target

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Published on 01 Feb 19 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

Our revenue authorities have been very active recently issuing judgments, making pronouncements and intensifying enforcement activity, all directed to the way the tax system operates in relation to income made from, and gains arising on transactions with, assets that are held on trust. This article highlights the impacts of some important recent developments affecting private trusts. Many of the problems displayed in the cases arise from two fundamental problems: misconceptions about the nature of a trust, viewing it as a type of entity, rather than an arrangement; and the inherent difficulties in correctly predicting whether the courts will apply or relax the basic doctrine in the particular circumstances of the taxpayer. The article also looks at some issues in relation to funding trusts, correctly allocating the tax liability on income and gains arising from assets held on trust (particularly if foreign  beneficiaries or foreign assets are involved), and vesting trust assets.

Author profiles

Prof Graeme Cooper FTI
Photo of author, Graeme COOPER Prof. Graeme Cooper, FTI, is Professor of Taxation Law at the University of Sydney and a consultant to Greenwoods & Herbert Smith Freehills. He is a former Chair of the New South Wales State Council of The Tax Institute and former member of the National Council. He has worked as a consultant to the ATO, Treasury, Board of Taxation, United Nations, OECD, World Bank, the International Monetary Fund and several foreign governments. He was admitted to legal practice in New South Wales and Victoria, and practised commercial law and tax in Sydney before entering teaching. He has taught in law schools in Australia, Europe and the United States, and holds degrees from the University of Sydney, University of Illinois and Columbia University, New York. - Current at 31 October 2019
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Andrew White ATI
Andrew is a Director at Greenwoods & Freehills. He advises on a wide range of corporate tax issues, with a particular focus on the property and managed funds industry and international tax issues. Andrew has particular experience in advising on the establishment and restructuring of property funds including stapled security structures, listed and unlisted trusts and has also provided extensive advice for Australian multinationals in relation to the structuring of their offshore investments. - Current at 01 August 2007
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Cameron Blackwood ATI
Cameron brings more than a decade of transactional tax expertise to his role as Director in Greenwoods & Herbert Smith Freehills’ Sydney office. He specialises in advising clients on the tax complexities of mergers, acquisitions and restructures, including cross-border issues and all aspects of employee share schemes, and regularly works in close collaboration with Herbert Smith Freehills. After joining Greenwoods & Herbert Smith Freehills as a graduate in 2004, Cameron built his corporate experience advising companies on a wide range of advisory and compliance matters, including a secondment to BHP Billiton. His industry knowledge is broad and includes the mining, real estate and financial services sectors. Cameron is also a key member of the firm’s Private Wealth group, which advises many of the country’s most successful private groups and emerging entrepreneurial businesses. Cameron is a member of The Tax Institute’s Large Business and International Committee and the NSW Technical Committee. He holds a Bachelor of Business (Hons) and Bachelor of Laws (Hons) from the University of Technology Sydney, and a Master of Taxation from the University of Sydney. Cameron is admitted as a solicitor in New South Wales. - Current at 26 June 2019
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