Trusts Masterclass: Taxation, Setup, Planning and Disputes

A trust is a common tool for advancing business objectives, investment planning and organising financial affairs. For a trust to effectively serve its purpose, lawyers must consider a plethora of factors impacting trustee resolutions and beneficiary decisions. Do not miss this gathering of legal experts and the opportunity to enhance your expertise. Join them as they unpack potential risks, discuss legislative treatments of financial agreements, and explore tax implications of trust entities. 

Tuesday, 5 March 2024
Session 1: Let’s Get Fiscal About Trusts: Trusts and Taxation

Chair: Valentina Stojanovska Cal, Managing Director, Black Book Management; Principal, Black Book Legal

9.00am to 10.0am Trusts and Div 7A Loan, from Tax Audits to AAT Decisions: A Case Study Approach and the Decision in Bendel

 

  • Delve into the recent and significant decision in Bendel and Commissioner of Taxation [2023] AATA 3074
  • This practice and procedural presentation will provide you with an insightful case study on:
    • The tax treatment of unpaid entitlements to company entities
    • The nature of a Div 7A loan
    • What it means for trusts moving forward

Presented by Brett Young, Partner, Tax, Hall Chadwick; former Barrister specialising in Taxation law; Adjunct Academic, University of Technology, Sydney; Fellow, Chartered Accountants Australia & New Zealand

10.00am to 11.00am Section 100A Deep-Dive

 

  • An update on the current state of law, including cases such as Guardian AIT v FCT and BBlood v FCT, and insights from ATO rulings like T2022/4
  • Tax consequences that arise when assets are distributed from a trust to their beneficiaries
  • Further complications relating to stamp duty and GST considerations, particularly in the context of in-specie distributions
  • Trustees’ powers and obligations when making decisions regarding the timing and recipients of trust distributions
  • Highlighting factors for consideration when contemplating changes to the vesting dates of trusts

Presented by Amrit MacIntyre, Senior Adviser, Baker & McKenzie; Best Lawyers 2024, Tax Law and John Walker, Partner, Baker & McKenzie

12.15pm to 1.15pm Understanding Family Trusts in the Context of Australian Tax Law

 

In Taxation Law, ‘Family Trust’ is a term of art which has a different meaning from the expression generally used by lawyers to describe a discretionary trust settled for the benefit of a particular family. This does not only lead to misunderstanding but has the potential for significant tax costs.

  • When is a trust considered a Family Trust?
  • Why a Family Trust?
  • Tax losses
  • Company tax losses
  • Franking credit access
  • The ‘family’ defined
  • Interposed entities
  • Disadvantages when a trust is considered a ‘Family Trust’
  • Penalty taxes
  • Pitfalls for advisors

Presented by Julie Van der Velde, Principal, VdV Legal; Recommended Leading Wills, Estates & Succession Planning Lawyer – South Australia, Doyle’s Guide 2023

Session 2: Trusts Setup, Planning and Litigation

Chair: Michael Bersten, Barrister; Recommended Tax Barrister, Doyles Guide 2023

2.00pm to 3.00pm Essential Elements for Designing a Trust


In this session, we revisit the trust deed as the key instrument governing the trust relationship. We consider the key elements that should be factored when designing a trust, including those often neglected during the process. Relevant considerations include beneficiary clauses, trustee discretions and powers, vesting, amendment powers and the context of the trust (such as succession).

Presented by King Tan, Consulting Principal, Keypoint Law

11.15am to 12.15pm Comprehensive Exploration of Section 99B: Context, Applications and Audits

 

  • Overview of Section 99B including its historical context and underlying objectives
  • Understanding the applicability of Section 99B through practical examples, including instances involving Section 99C
  • Examine the challenges involved in proving the corpus exception and highlighting its demanding nature
  • Insights into the process of managing a Section 99B audit

Presented by Jonathan Ortner, Partner, Arnold Bloch Leibler; Who’s Who Legal, Corporate Tax 2023, Australia & New Zealand; Co-Chair, ATO’s Private Groups Stewardship Group and Micaela Bernfield, Senior Associate, Arnold Bloch Leibler

3.00pm to 4.00pm Effective Trust Planning: Is Your Client’s Super Going Where They Intended?

 

  • Considerations for establishing an effective super plan to ensure smooth distribution
  • Should your client be adopting a non-binding, binding or hardwired approach?
  • Additional considerations for SMSF planning and knowing when to shut down a super
  • Understanding the tax implications (including super death benefits tax, capital gains tax and stamp duty) on trust planning

Presented by Elizabeth Burnheim, Consulting Principal, Keypoint Law

4.15pm to 5.15pm Trust Litigation: An Overview of Practice, Procedure & Strategy

 

  • What you need to know about trust disputes in general
  • Disputes involving the taxation of trusts
  • Can general trust cases and those of taxation overlap?
  • High Court decisions regarding declarations of trust in the State Supreme Courts that may concern Commonwealth income tax:
  • Commissioner of Taxation v Thomas (2018) 264 CLR 382
  • Executor Trustee and Agency Co of South Australia v DCT (1939) 62 CLR 545

Presented by Michael Bersten, Barrister; Recommended Tax Barrister, Doyles Guide 2023

Description

Attend and earn 7 CPD units in Substantive Law
This program is applicable to practitioners from all States & Territories

4.00pm to 4.15pm Afternoon Tea
11.00am to 11.15am Morning Tea

Presenters


Mr. Michael Bersten, Barrister, Michael Bersten Barrister
Michael Bersten has been in legal practice for 37 years and since 2018 as a Barrister. Michael specialises in tax and related corporate, commercial, trusts and financial crime matters. Michael’s current clients comprise mainly business and private wealth clients. Michael is also a sessional Lecturer in the UNSW Business School ATAX Masters Program. Michael is the NSW Deputy Chairman of the Law Council Tax Committee and a member of the Australian Bar Association tax committee. Michael has been regularly voted by clients as a Tax Controversy and Disputes leader in the International Tax Review Survey. Michael was a tax and legal partner from 2004 -2018 at PwC and before that a partner at Deloitte from 2001-2004. Michael founded their tax controversy and dispute resolution practices. Before that Michael Bersten was head of the ATO Tax Counsel Network and chaired the GAAR Panel amongst other senior roles. Michael was a Deputy Australian Government Solicitor (1996-1999) and national head of the tax and customs practices. Michael is ranked as a leading Tax Law Barrister with Doyle’s Guide, New South Wales, 2022 Connect with Michael via LinkedIn.


Micaela Bernfield, Senior Associate, Arnold Bloch Leibler
Micaela Bernfield is a Senior Associate in Arnold Bloch Leibler’s taxation practice. Micaela advises across a wide range of taxation matters with a particular focus on tax residency, corporate and international tax, taxation of trusts, GST and tax controversy matters. Micaela has managed all stages of the ATO tax dispute lifecycle, from audits and reviews to objections and appeals.


Amrit MacIntyre, Senior Adviser, Baker & McKenzie
Amrit was a tax partner at Sydney office of Baker McKenzie for 24 years and is now a Senior Adviser at the firm. He is an author of the CCH duties and GST loose leaf services and numerous other publications. He has been a member of the ATO public rulings panel and has taught occasionally at UTS. He practices in indirect taxes including duties and GST and has done so for nearly 30 years.


Julie Van der Velde, Principal, VdV Legal
SME Chartered Tax Advisor of the year for 2017, Julie Van der Velde TEP is the founder of VdV Legal, a specialist commercial law practice in the Adelaide CBD. VdV Legal specialises in taxation law and wealth management structures. Julie provides tax and equity opinions and advices for a variety of business structures and transactions and has significant experience advising on business succession, estate planning and restructuring. Specialising in small and medium business Julie has a particular interest in matters involving intergenerational transfer and business succession. She has over 25 years’ experience and is regularly recommended by Doyles Guide most recently in 2023.


Brett Young, Partner, Tax, Hall Chadwick
Brett commenced as a Tax Partner at Hall Chadwick in 2022. Brett has practised as a tax advisor since 1994, practising as a tax accountant in Big 4 Accounting firms, multinational corporates and smaller boutique professional firms. Prior to joining Hall Chadwick, Brett was a tax barrister specialising in taxation law and commercial law at the New South Wales Bar and from 2003. Brett advises taxpayers in all areas of taxation, including income tax, international tax, capital gains tax, FBT, GST, stamp duty, payroll tax and land tax. Brett’s primary area of practise is resolving tax disputes for taxpayers in the Australian economy. As a specialist tax advisor with accounting and business skills, Brett provides a practical solutions based advice to his clients and creates plans to resolve problems in complex transactions and business environments. With decades of experience and tax expertise, Brett has a ‘sixth sense’ as to managing a client’s Australian tax risk. Brett acts for a broad range of taxpayers – including multinational corporations, small-to-medium businesses, property developers and high net worth individuals. Brett is passionate about the education of the younger profession. Brett is a regular conference presenter and has also devoted much of his career educating younger professional accountants and lawyers regarding the taxation of taxpayers in the Australian economy. Brett has taught taxation as part of the Accounting Professional Year Programme conducted by the Chartered Accountants Australia and New Zealand (CA ANZ) and more recently as adjunct academic at the University of Technology (UTS), Sydney.


Elizabeth Burnheim, Consulting Principal, Keypoint Law
Elizabeth is a specialised superannuation and taxation lawyer. She is experienced in handling complex taxation issues, often involving assisting high-net worth clients, business owners, trustees and beneficiaries of trusts, advising on business and investment structures for payroll tax purposes such as de-grouping applications and payroll tax audits. Elizabeth works across a wide range of matters, from assisting SMSFs acquire property using limited recourse borrowing strategies, to large payroll tax audits, to amending trust deeds for NSW Surcharge Purchaser Duty, to complex estate planning matters involving inter vivos and testamentary trusts. Elizabeth often presents at internal and external seminars and various tax discussion groups around Sydney and for The Tax Institute and Legalwise. She has also written multiple articles for the Australian Shareholder’s Association monthly publication. Elizabeth is regarded by her clients as knowledgeable, helpful and precise. She places significance on ensuring a comprehensive understanding of her clients’ circumstances to enable the best possible outcome. Elizabeth was formerly a Team Leader at Coleman Greig Lawyers’, in their Taxation and Superannuation team.


Jonathan Ortner, Partner, Arnold Bloch Leibler
Jonathan Ortner is a partner in Arnold Bloch Leibler’s taxation group and practices in all areas of direct and indirect tax with a particular focus on the taxation of trusts and corporate income tax and mergers and acquisitions. Using his technical tax knowledge, Jonathan works with clients to obtain commercial and practical outcomes. He has particular experience in dealing with the Australian Taxation Office on complex tax issues in a dispute resolution and transactional context. Jonathan is a keen and active member of the tax community. As well as presenting on tax topics at various sessions and authoring a number of published articles, papers and bulletins, Jonathan is the Chair of the Tax Institute’s SME committee, a former member of the GST committee and the co-chair of the ATO’s Private Group Stewardship Group. In 2017, Jonathan won 'Emerging Tax Star' in the Tax Institute's "Tax Adviser of the Year" Awards. Jonathan is also recognised as a key tax lawyer in the Legal 500 Asia Pacific and is recommended by Who’s Who Legal: Australia and New Zealand 2023 report, in the area of corporate tax.


Mr King Tan, Consulting Principal, Keypoint Law
King Tan is an experienced lawyer, with a specialty in taxation law. King advises on Federal taxes (such as income tax and capital gains tax), State taxes (such as duty and land tax), and both advisory and dispute matters. King is often called upon by private groups, high net wealth families and professional advisers (such as accountants and financial planners) to advise on complex taxation issues. Apart from taxation, King practises in the areas of trust law, superannuation law and succession planning. He has extensive experience assisting clients with strategic business and personal succession plans, establishing cross-border family offices, dealing with trustee duties and beneficiary entitlements and implementing wealth preservation strategies. Prior to joining Keypoint Law, King led the Taxation & Superannuation team at Coleman Greig. He was formerly with King & Wood Mallesons and KPMG. King’s experience working at a Big 4 chartered accounting firm and as a senior tax lawyer at international and mid-tier law firms bring a range of skills and experience to his clients. King is an active member of the tax community. He regularly presents on tax and legal issues, including to accounting discussion groups. He has also served on committees for the Tax Institute.


John Walker, Partner, Baker & McKenzie
John is a tax partner in the Sydney office of Baker McKenzie (since 2003). He is also a lecturer in the Law School at The University of Sydney, and currently runs the Taxation of Partnership and Trusts course in the LLM Program.

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Trusts Masterclass: Taxation, Setup, Planning and Disputes

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Tuesday, 5 March 2024
9.00am to 5.15pm Australia/Sydney
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Morning Session
Tuesday, 5 March 2024
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Tuesday, 5 March 2024
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Venue
Legalwise Seminars

Level 11, 70 Pitt Street, Sydney 2000

Directions

These are nearby public transport options.

By Train: Wynyard Station and Martin Place Station are only a 5 minute walk away

By Light Rail: Wynyard Light Rail Station is only a 4 minute walk away

Bus: The Clarence Street Bus Interchange is only 450m and there are many buses that stop nearby

Ferry: Circular Quay is the closest Ferry

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