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.
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.
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.
There’s a Hole in My Bucket…The Budget’s Minimum Tax on Discretionary Trusts and Bucket Companies
The announcement of the 30% minimum tax payable by trustees of discretionary trusts has drawn significant attention. However, for discretionary trusts with corporate beneficiaries, beware of double tax.
Victorian Land Tax and Trust Classification: Lessons from R.C. Land Management Pty Ltd v Commissioner of State Revenue
The Victorian Supreme Court’s decision in R.C. Land Management Pty Ltd v Commissioner of State Revenue [2026] VSC 49 confirms that the classification of trusts for land tax purposes must be determined by the rights and obligations contained in the trust deed of the trust, rather than by administrative reference or reclassification.
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Reviewing Trustee Decisions – Claim Staking Process: Williams v Robba [2025]
The Queensland Supreme Court’s decision, Williams v Robba [2025] QSC 2023, highlighted that in self-managed superannuation funds death benefit disputes, the Court will consider and review the trustees decision making process – not whether they would have made the same decision.
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.
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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.
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Stamp duty imposed on acquisition of units in Hybrid Unit Trust – Ramifications of Victory International Pty Ltd v Commissioner of State Revenue [2025] VSC 484
Landholder duty issues for Hybrid Unit Trusts highlighted by Victory International Pty Ltd v Commissioner of State Revenue [2025] VSC 484
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.
New Penalty Tax for Recklessness
The Victorian Government has introduced a new 50% penalty tax for cases of recklessness under state tax laws, as part of the 2025–26 State Budget measures. This penalty applies where a taxpayer or their advisor is found to have acted recklessly, causing a tax shortfall or failing to meet notification requirements.
Previously, penalties ranged from 25% (negligence) to 75% (intentional disregard). There are concerns that this new penalty could be unfairly applied in complex cases, especially involving trusts or foreign interests, where rules are often misunderstood.
Gift and Loan Arrangements – There is more you should know
When considering asset protection, gift, loan and mortgage arrangements are a key strategy, particularly in the context of protecting assets against creditor or insolvency claims as well as parents providing financial assistance to adult children. The effectiveness of the strategy relies upon ensuring that that agreement is correctly documented and implemented.
Lost Trust Deeds – What are your options?
Losing an original trust deed creates issues. Replacing the deed may trigger tax implication, deed of ratification poses challenges and seeking court advice is costly and complex. Robust systems are crucial.
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.
Gainer The Sequel – Lost Discretionary Trust Deed Failed for Uncertainty
The New South Wales Supreme Court has reconvened for a second time, this time addressing the implications of a lost trust deed. This decision highlights the crucial responsibility of trustees to properly preserve trust deed documents, not only to maintain the trust’s validity but also to prevent adverse outcomes, such as taxation or duties.
Part 2: Understanding the Gainer Associates Decision: A Critical Examination of SMSF Governance
The NSW Supreme Court's decision in Gainer Associates has crucial implications for self-managed superannuation funds. The case examined Gainer’s attempts to amend its governing rules, specifically addressing the distribution of death benefits and the remuneration of trustees. This case highlights the court’s emphasis on compliance with the Superannuation Industry (Supervision) Act 1993 and the importance of transparency with regulatory bodies.
The Gainer case serves as a vital reminder for SMSF trustees to prioritise due diligence, transparency, and adherence to compliance standards.
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.
Part 1: Understanding the Gainer Associates Decision: A Critical Examination of SMSF Governance
The recent NSW Supreme Court decision in Gainer Associates Pty Limited [2024] NSWSC 1138 sheds light on critical issues surrounding self-managed superannuation funds. This case intricately examines issues of trustee responsibilities, compliance with the Superannuation Industry (Supervision) Act 1993, and the necessary judicial oversight in potentially contentious situations.
The court emphasised the need for trustees to maintain clear documentation and adhere to the Superannuation Industry (Supervision) Act 1993. This case serves as a vital reminder for trustees regarding the complexities of compliance and the significance of transparency in governance..