Archive for the 'Cases' Category

In this podcast we discuss two recent cases.

Brooks and Commissioner of Taxation (Taxation) [2019] AATA 1236 is a recent AAT decision where a person was made a disqualified person by the Commissioner and thus unable to act as the director of the corporate trustee of their SMSF. We look at the contraventions that occurred in this case, what the Commissioner considered in making this decision and discuss what advisers should do when a similar situation arises.

Wykrota v Chief Commissioner of State Revenue [2019] NSWCATAD 106 is a case about whether a person was entitled to the apparent purchaser duty concession; a concession often relied upon in an LRBA context when transferring property to an SMSF trustee. We discuss what key documents and facts should be in place when establishing an LRBA to ensure this concession is not jeopardised.

Hosts: Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer, DBA Lawyers

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The election result was a surprise for most people. As a result of this we discuss the possible changes coming to SMSFs from the Coalition government. In particular, we discuss how to deal with the potential increase in the number of members allowed in an SMSF and the risks accompanying this.

We also discuss the current key case regarding the sole purpose test: Aussiegolfa. We explain what this case actually tells us about the sole purpose test and how advisers should proceed in light of this case and the ATO’s response.

Hosts: Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer, DBA Lawyers

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In this podcast we disucss the recent case of Gonciarz v Bienias [2019] WASC 104 and the conflict of interest that arises where an executor or administrator of a deceased estate applies to receive death benefits in their own capacity.

We discuss:

  • What happened in Gonciarz v Bienias.
  • Why the outcome in this case was different to Burgess v Burgess [2018] WASC 279.
  • The Courts statement of the current law in this area.
  • What advisers can do to mitigate the risk of this conflict arising.

Hosts: Bryce Figot, Special Counsel and Shaun Backhaus, Lawyer DBA Lawyers

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In this podcast we look at the recent cases of Re Marcella and Eichmann and Commissioner of Taxation. 

Re Marcella

The Re Marcella judgement provides a great depth of analysis of how trust law principles apply to an SMSF. The case highlights the need for trustees to properly consider who to pay a death benefit to and when the courts may intervene where bad faith or grotesque unreasonableness is involved.

In this podcast we will cover:

  • The key points of Re Marcella
  • Why this case is important
  • How this case is different from Katz v Grossman

Eichmann and Commissioner of Taxation

We will cover:

  • Why was the subject property was considered an active asset for small business CGT relief purposes; how this case is different from Re Karapanagiotidis and Commissioner of Taxation [2007] AATA 1961
  • Whether there are implications for the definition of business real property
  • Comparing this case with a similar example in SMSFR 2009/1

Hosts: Bryce Figot, Special Counsel, Shaun Backhaus, Lawyer and Christian Pakpahan, Lawyer DBA Lawyers

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