Legal Insights
Stop, Drop or Roll: The New Minimum Tax & Options for Trustees
Treasury’s exposure drafts provide trustees of discretionary trusts three options in relation to the new 30% minimum tax on taxable income: (1) stop trying to avoid and pay the tax, (2) drop the trust into an excluded election trust election or (3) roll-over relief. This article details the strict conditions the latter two options carry.
Anything to Declare? Moving Foreign Superannuation to an Australian Fund
Australians returning home with overseas superannuation or pension benefits have two main options in relation to transferring those entitlements into the Australian superannuation system. Prior to making a withdrawal or transferring those benefits, members should consider their tax and succession planning objectives.
Cold Reality for Trust Assets in Family Law Proceedings – Special Leave Denied for Caldwell and Caldwell
On 10 September 2026, the High Court of Australia refused special leave to appeal the Federal and Family Court of Australia’s judgment of Caldwell and Caldwell [2026]. A disappointing outcome for parties using trust structures for asset protection.
Kicked to the Curb: Changes to Limited Recourse Borrowing Arrangements
Limited recourse borrowing arrangements, or LRBAs, provided self-managed superannuation funds with the opportunity to borrow funds from a lender to purchase property. However, from 10 August 2026, LRBAs are now limited to the acquisition of business real property, effectively excluding residential property from the arrangements.
Post Budget Tax Changes: Are SMSFs Now More Effective Than Discretionary Trusts?
Handed down on 12 May 2026, the 2026-27 Federal Budget was notably uneventful for self-managed superannuation funds. Importantly, it left key superannuation concessions unchanged, including the one-third capital gains tax discount available for complying superannuation funds. In contrast, the proposed introduction of a 30% minimum tax on taxable income of discretionary trusts has strengthened the relative tax advantages of superannuation, reinforcing its importance wealth structuring and effective tax planning vehicle.
Back Track and Carve Out – Testamentary Trusts Excluded from 30% Trust Tax
The 2026-27 Federal Budget proposed to introduce a 30% minimum tax on taxable income of discretionary trusts from 1 July 2028. The original proposal raised concerns as it was suggested to apply to discretionary testamentary trusts, potentially affecting trusts established by a will for a legitimate succession planning purpose. Following consultation, the Government has amended the proposal to exclude genuine testamentary trusts from the new minimum tax, subject to integrity requirements to ensure that they are designed for a legitimate purpose.
Lock up your superfunds – Div 296 is here!
Australia has just entered the first financial year that will be affected by the Div 296 legislation. Members of superannuation funds (SMSFs, retail and industry) with balances that exceed $3 million and $10 million are now subject to an additional tax.
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Life Interests and Land Tax – Abraham v Commissioner of State Revenue [2026] VCAT 351
The Victorian Civil Administrative Tribunal (VCAT) recently considered whether a widow (Applicant) held a life estate in possession in a holiday home, and if so, how that interest should be treated for Victorian land tax purposes. The decision highlights the importance of including appropriate provisions in a will, where the will provides a right to use or occupy a particular property.
Preserving Intergenerational Wealth Reconsidered: Key Implications of the Full Court’s Decision in Caldwell and Caldwell
Preserving intergenerational wealth is a key consideration when establishing trusts. However, the most recent decision in Caldwell and Caldwell [2026] FedCFamC1A 81 questions the strength of asset-protecting structures in family law proceedings.
Preserving intergenerational wealth - key considerations in family law proceedings
The decision in Caldwell and Caldwell [2025] FedCFamC1F 506 (Caldwell) reaffirmed the position that while the Federal Circuit and Family Court (Court) has broad powers in respect to family law disputes, its powers are not limitless. In the context of preserving intergenerational wealth, particularly where long-standing family-operated businesses are involved, Caldwell provides welcomed reassurance that where trusts are established and structured effectively, for a clear genuine purpose, they can successfully limit assets from the reach of the Court.
New Division 296 Tax – Changes to Key Aspects
New Division 296 Tax – A win for the industry
Controversial taxation bill has been watered down – tax of unrealised gains has been scrapped.
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Roberts [2025] FCA 957 Court allows SMSF management despite bankruptcy
In the case of Roberts ([2025] FCA 957) an application to the Federal Court to exercise its discretion to grant leave to a bankrupt individual to manage a self-managed superfund.
Broad Powers, Unintended Consequences: Trustee's Authority to Remove Appointor Upheld
Appropriately considering the successive control of discretionary trusts, at both a trustee and an appointor level, is a critical component in succession planning. The recent Queensland Court of Appeal decision of Staley v Hill Family Holdings Pty Ltd highlighted this, after broad variation powers resulted in the removal of an appointor by a trustee which could have been avoided had the succession of the trust been properly addressed.
Aged Care Restrictive Practices, A New Regime
The Aged Care Restrictive Practices Substitute Decision-maker Act 2024 (Vic) (the Act) came into effect on 1 July 2025. The Act will only apply to Victorian residents.
Absolute Vision Technologies: Former SMSF Corporate Trustee in Administration Still Holding SMSF Property
The New South Wales Supreme Court decision in Re Absolute Vision Technologies Pty Ltd (subject to deed of company administration) [2024] NSWSC 1010 provides judicial guidance in relation to whether a former corporate trustee, despite being in voluntary administration, could complete a sale contract for SMSF property and distribute the proceeds to the new trustee.
The Courts supervisory powers: ensuring the proper administration and due execution of trusts
In the case of Dryandra Investments Pty Ltd v Hardie by her guardian ad litem Ian Torrington Blatchford [2024] WASC 24, the Supreme Court of Western Australia examined a key aspect of estate planning and structuring: ensuring proper succession for the roles of appointor and guardian. The decision underscores the risks that arise when these crucial roles are overlooked, and succession is not addressed by an appointor or guardian before they lose capacity or pass away.
The Short Stay Levy Act 2024 (Vic): Implications for Short-Term Accommodations in Victoria
Effective 1 January 2025, the Short Stay Levy Act 2024 (Vic) introduced a 7.5% levy on short-term accommodation bookings. This levy has widely become known as the “Airbnb tax” and is aimed at addressing the state’s housing shortage by encouraging property owners of current short-stay rentals to transition their properties into long-term leasing options, thereby increasing the availability of permanent housing.
Shifting views on Victorian Land Tax trust provisions
The recent VCAT decision of Caloutas as trustee for Caloutas Family Trust v Commissioner of State Revenue [2025] VCAT explored how bare or fixed trusts intersect with the Victoria land tax trust surcharge provisions.
ATO declares payment of a death benefit to a spouse’s estate not to be tax-free
In a Private Binding Ruling, the ATO determined that payment of a death benefit to a spouse’s estate is not tax-free under section 302-10(2) of the Income Tax Assessment Act 1997.
