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High Court decides FCT v Carter


The High Court decision in Carter disturbed a widely accepted position regarding the tax impacts of beneficiaries disclaiming their entitlement after the financial year has ended. The beneficiaries in this case made several attempts to disclaim their interests, all after the end of the financial year. The court considered the equitable doctrine of disclaimer by a beneficiary of their interests in a discretionary trust and analysed s 97 of the Income Tax Assessment Act 1936 (Cth). Interpreting the wording of s 97 quite tightly in the context of Div 6, the High Court held that any disclaimer had to happen before the end of the relevant financial year to change the tax outcome for any disclaiming beneficiary, while recognising that this decision could have unfair results in some circumstances. Like many other practitioners, the author advocates for a retrospective legislative amendment to prevent such unfairness for past or future disclaimers.

Author profile

Bruce Collins CTA
Bruce is the Assistant Commissioner in the Public Groups & Internationals (PG&I) line in the ATO. Bruce leads the Risk & Strategy area in PG&I to understand the characteristics of over 31,000 PG&I client groups and oversee strategies to tailor engagement with them based on their complexity, transparency, choices and behaviours. Bruce has been heavily involved in transforming ATO approaches to rebalance the PG&I compliance direction and investment as part of the Reinventing the ATO. Bruce has had an extensive career in the ATO spanning 34 years, mostly in national technical, compliance and risk leadership roles. Prior to joining the PG&I area in July 2015, Bruce spent six years leading the ATO’s aggressive tax planning strategy and three years providing technical and case leadership in the Private Groups & High Wealth Individuals area. - Current at 01 February 2016
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