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Tricks, traps and tantalising opportunities: New Subdiv 328-G explained


Following the federal government’s jobs and small business package introduced during the 2015-16 federal Budget, Subdiv 328-G was crafted to “provide greater flexibility for small business owners to change their legal structure”. Compared with the traditional roll-over relief, the scope and restructuring possibilities provided for by the provisions represent a significant liberalisation of historical rules and is set to make them a “one-stop shop” for small business restructures. The new roll-overs cover a range of potential transferor-transferee combinations, making them the likely starting point for most small businesses wanting to access tax-effective restructuring.

This article explores a number of specific restructuring opportunities — for example, trust cloning, trust splitting, transferring non-CGT assets and exiting trusts with “heritage” issues — that are available under the new rules. This article also explores the fundamental issues in relation to how to satisfy the provisions in any factual scenario.

Author profile

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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