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.
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.
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.
Improperly Drafted Exclusionary Clause Triggers Foreign Land Tax Surcharge For Discretionary Trust
This ruling from the New South Wales Civil and Administrative Tribunal (the Tribunal) serves as an important reminder for ensuring that discretionary trust deeds are appropriately amended to prevent the activation of "foreign" land transfer (stamp) duty and land tax surcharges
Baullo v Commissioner of State Revenue [2023] VCAT 1164: Beneficiary Loans, Land Transfer Duty, and Discretionary Trusts
The VCAT ruling of Baullo v Commissioner of State Revenue [2023] VCAT 1164 (Baullo), has reaffirmed the position of the State Revenue Office (SRO) that forgiving beneficiary loans in relation to a distribution of property from a discretionary trust to a beneficiary will prohibit utilisation of the exemption to land transfer (stamp) duty afforded by section 36A of the Duties Act 2000 (Act).
Stamp duty exemption - transfer from discretionary trust to beneficiary
Ordinarily, land transfer duty (stamp duty) is paid by the transferee at the time of the transfer of dutiable property, such as real property, unless an exemption to stamp duty is applicable.
The ATO’s Stance on Capital Gains, Discretionary Trusts and Foreign Residents
In the decisions of Greensill (Thawley J) and Martin (Steward J), the Federal Court found in favour of the Australian Taxation Office (ATO) that section 855-10 of the Income Tax Assessment Act 1997 (ITAA 1997) did not disregard a non-taxable Australian property capital gain distributed to a foreign beneficiary of an Australian discretionary trust.