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    • Family Trust - $165
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    • Family Trust - Update to Allow Change of Appointor and Guardian - $165
    • Family Trust - Update to allow Sole Trustee - $55
    • Family Trust - Update to Exclude Foreign Persons (NSW) - $198
    • Family Trust - Vesting - $259
    • Forgiveness of Debt - $121
    • Opening Minutes for the Unit Trust - $33
    • Partnership Deed - $220
    • Release of Unpaid Trust Entitlement - $121
    • The new small business restructure roll-over rules in practice (White Paper) - $55
    • Trust Distribution Minutes Library for 2008/09 - $99
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    • Trust Distribution Minutes Library for 2010/11 - $99
    • Trust Distribution Minutes Library for 2011/12 - $99
    • Trust Distribution Minutes Library for 2012/13 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2012/13 - Single-Use - $110
    • Trust Distribution Minutes Library for 2013/14 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2013/14 - Single-Use - $110
    • Trust Distribution Minutes Library for 2014/15 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2014/15 - Single-Use - $110
    • Trust Distribution Minutes Library for 2015/16 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2015/16 - Single-Use - $110
    • Trust Distribution Minutes Library for 2016/17 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2016/17 - Single-Use - $110
    • Trust Distribution Minutes Library for 2017/18 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2017/18 - Single-Use - $110
    • Trust Distribution Minutes Library for 2018/19 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2018/19 - Single-Use - $110
    • Trust Distribution Minutes Library for 2019/20 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2019/20 - Single-Use - $121
    • Trust Distribution Minutes Library for 2020/21 - Multi-Use - $350
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    • Unit Trust - $149
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    • Forgiveness of Debt - $121
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  • Company

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    • Demand and Summons for Debt - WA - $88
    • Director‘s Indemnity Agreement - Compulsory Insurance - $197
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    • Directors Conflict of Interest Kit - $44
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    • Div 7A Loan Agreement for UPE - $55
    • Employment Contract - $99
    • Family Trust - Vesting - $259
    • Forgiveness of Debt - $121
    • Independent Contractors Agreement - $99
    • Loan Agreement (No Security) - $110
    • Minutes for Members to Inspect Books - $33
    • Minutes for Resigning Director - $33
    • Opening Minutes for the Unit Trust - $33
    • Partnership Deed - $220
    • Power Of Attorney By Company - $99
    • Release of Unpaid Trust Entitlement - $121
    • Remove a Managing Director kit - $33
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    • Replace Company Secretary kit - $44
    • Self Managed Superannuation Fund Deed - $149
    • Statutory Declaration - $0
    • Terms of Trade (Non ROT) - $132
    • Transfer of Shares Kit - $0
    • Unit Trust - $149
    • Unit Trust - Add New Member Kit - $110
  • Webinars

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    • Webinar On Demand - Fixing Family Trust Deeds - Mistakes made pre and post establishing a Trust - $99
    • Webinar On Demand - How to assist clients with their debt issues - $99
    • Webinar On Demand - Introduction to Family Trusts - the basics - $99
    • Webinar On Demand - Lawyers and Accountants Duties as Executors - $99
    • Webinar On Demand - Testamentary Trusts 101 - $99
    • Webinar On Demand - Three Pillars of an Effective Asset Protection Strategy - $99
  • All documents

    All documents

    • Acknowledgement of Trust (already own asset) - $165
    • Adopt Committee Recommendations kit - $33
    • Advanced Legal Health Check for Businesses - $18
    • Appoint a Committee kit - $33
    • Appoint an Alternate Director kit - $33
    • Appoint Managing Director & Confer Powers kit - $33
    • Buy a House with Friends Agreement - $110
    • Buy Sell Agreement Company - $197
    • Change Appointor and/or Guardian of Family Trust - $110
    • Change of Name of Family Trust - $88
    • Change Registered Office kit - $33
    • Change Trustee of Family Trust - $110
    • Codicil to change the Executor - $99
    • Commercial Lease - $250
    • Company (ELodgement) - $631
    • Company Constitution Update - $99
    • Confidentiality Agreement (Non Disclosure) - $99
    • Co-Owners Agreement - $110
    • Dealing with Forgiven Debts (White Paper) - $55
    • Debt Recognition (including pre-Div 7A Loans) - $33
    • Debt Recovery Kit - Qld - $44
    • Declaration of Trust (before you buy) - $99
    • Demand and Statement of Claim for Debt - NSW - $88
    • Demand and Summons for Debt - VIC - $88
    • Demand and Summons for Debt - WA - $88
    • Derivative Risk Statement for SMSF - $65
    • Director‘s Indemnity Agreement - Compulsory Insurance - $197
    • Director‘s Indemnity Agreement - No Insurance - $197
    • Directors Conflict of Interest Kit - $44
    • Disclaimer - Email - $55
    • Div 7A Loan Agreement - $65
    • Div 7A Loan Agreement for UPE - $55
    • Employment - Conduct Issues Letter - $33
    • Employment - Employee Expenses Policy - $55
    • Employment - Performance Issues Letter - $33
    • Employment - Request for Medical Information - $33
    • Employment - Termination Letter - $33
    • Employment - Transferring Employee Letter - $33
    • Employment Contract - $99
    • Enduring Power of Attorney - NSW - $55
    • Enduring Power of Attorney - SA - $55
    • Enduring Power of Attorney - WA - $55
    • Enduring Power of Attorney (Financial, Personal/Health) - QLD - $55
    • Enduring Power of Guardianship - NSW - $55
    • Enduring Power of Guardianship - WA - $55
    • Family Trust - $165
    • Family Trust - Streaming & Bamford Update - $165
    • Family Trust - Update to Allow Change of Appointor and Guardian - $165
    • Family Trust - Update to allow Sole Trustee - $55
    • Family Trust - Update to Exclude Foreign Persons (NSW) - $198
    • Family Trust - Vesting - $259
    • Forgiveness of Debt - $121
    • Independent Contractors Agreement - $99
    • Investment Strategy for Self Managed Super 15/16 - $65
    • Investment Strategy for Self Managed Super 16/17 - $65
    • Investment Strategy for Self Managed Super 17/18 - $65
    • Investment Strategy for Self Managed Super 18/19 - $65
    • Investment Strategy for Self Managed Super 19/20 - $65
    • Investment Strategy for Self Managed Super 20/21 - $65
    • Loan Agreement (No Security) - $110
    • Minutes for Members to Inspect Books - $33
    • Minutes for Resigning Director - $33
    • Opening Minutes for the Unit Trust - $33
    • Partnership Deed - $220
    • Pension Pack for Self Managed Super - $299
    • Power Of Attorney By Company - $99
    • Product Disclosure Statement (general) - $66
    • Product Disclosure Statement (Pension only) - $99
    • Release of Unpaid Trust Entitlement - $121
    • Remove a Managing Director kit - $33
    • Remove and Replace a Director kit - $44
    • Replace Company Secretary kit - $44
    • Self Managed Superannuation Fund Deed - $149
    • SMSF - Minute to Appoint Administrator - $33
    • SMSF - Minute to Appoint an Auditor - $33
    • SMSF - Minute to Approve Financial Statements - $33
    • SMSF - Minute to Approve Financial Statements 07/08 - $33
    • SMSF - Minute to Approve Financial Statements 08/09 - $33
    • SMSF - Minute to Approve Financial Statements 09/10 - $33
    • SMSF - Minute to Insure The Members - $33
    • SMSF - Update Rules - $165
    • SMSF Limited Recourse Borrowing Arrangement - $220
    • SMSF Restricted Commercial Property Assessment - $695
    • SMSF Restricted Residential Property Assessment - $315
    • SMSF Subscription - $99
    • Statutory Declaration - $0
    • Terms of Trade (Non ROT) - $132
    • The new small business restructure roll-over rules in practice (White Paper) - $55
    • Transfer of Shares Kit - $0
    • Trust Distribution Minutes Library for 2008/09 - $99
    • Trust Distribution Minutes Library for 2009/10 - $99
    • Trust Distribution Minutes Library for 2010/11 - $99
    • Trust Distribution Minutes Library for 2011/12 - $99
    • Trust Distribution Minutes Library for 2012/13 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2012/13 - Single-Use - $110
    • Trust Distribution Minutes Library for 2013/14 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2013/14 - Single-Use - $110
    • Trust Distribution Minutes Library for 2014/15 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2014/15 - Single-Use - $110
    • Trust Distribution Minutes Library for 2015/16 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2015/16 - Single-Use - $110
    • Trust Distribution Minutes Library for 2016/17 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2016/17 - Single-Use - $110
    • Trust Distribution Minutes Library for 2017/18 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2017/18 - Single-Use - $110
    • Trust Distribution Minutes Library for 2018/19 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2018/19 - Single-Use - $110
    • Trust Distribution Minutes Library for 2019/20 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2019/20 - Single-Use - $121
    • Trust Distribution Minutes Library for 2020/21 - Multi-Use - $350
    • Trust Distribution Minutes Library for 2020/21 - Single-Use - $121
    • Unit Trust - $149
    • Unit Trust - Add New Member Kit - $110
    • Webinar On Demand - Fixing Family Trust Deeds - Mistakes made pre and post establishing a Trust - $99
    • Webinar On Demand - How to assist clients with their debt issues - $99
    • Webinar On Demand - Introduction to Family Trusts - the basics - $99
    • Webinar On Demand - Lawyers and Accountants Duties as Executors - $99
    • Webinar On Demand - Testamentary Trusts 101 - $99
    • Webinar On Demand - Three Pillars of an Effective Asset Protection Strategy - $99
    • Website Terms And Conditions - $99
    • Will - Married or Defacto No Children - $95
    • Will - Married or Defacto with Children - $95
    • Will - Single No Children - $110
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Print Version Back

New tax trap for relationship breakdowns

Issue: 465 - Thursday, 20 November 2014

In this Issue

  1. New tax trap for relationship breakdowns

1. New tax trap for relationship breakdowns

For many people, the breakdown of a spousal relationship is devastating not only emotionally, but also financially, as assets are divided and property settlements are negotiated. Even in circumstances where the split is amicable, many couples have difficulty coming to agreement on how to apportion the asset pool. Now a new ruling from the Australian Tax Office has thrown a potential spanner in the works that may make it even harder for divorcing couples to work out who gets what, and how much.

In July 2014, the ATO issued its final version of Taxation Ruling TR2014/5[1]. This ruling clarified the position in its earlier draft ruling[2] that the receipt of cash or property from a private company pursuant to Family Court orders is subject to tax as an assessable dividend.

The ruling, which appears to be a direct reversal of the ATO’s previously held position, suggests that holding family assets in a corporate structure may prove to be problematic in the event of a relationship breakdown, and that the transfer of money or property from a company is best avoided in a property settlement to minimise tax implications.

It’s now more important than ever that parties with an interest in a private company (especially family business owners) take this opportunity to speak to a family lawyer about protecting their personal and business interests in the event of a separation, to ensure that their business can continue to operate with minimal disruption and that their property settlement is structured in a tax effective manner and with minimal deterioration of personal and company wealth.

What are the tax implications?

Prior to the release of the new ruling, the ATO’s position[3] was that the payment of cash or the transfer of property from a private company to satisfy a property settlement pursuant to a Family Court order[4] was not considered a payment of a dividend, on the basis that the private company was “discharging an obligation” when it made the payment or transfer.

Under the new ruling, the ATO has controversially overturned this prior treatment. The current ATO view is that where a private company is obligated pursuant to Family Court orders to pay money or transfer property to a shareholder or associate (being a party to the matrimonial proceedings), the payment of money or transfer of property is taken to be a payment of an ordinary dividend[5] or a deemed dividend[6] (as the case may be). Such a dividend is generally taxed in the hands of the recipient shareholder or associate at their marginal tax rates—meaning a significant amount of tax may be payable by the recipient.

The new ruling also clarified a number of ancillary tax effects that can arise from the payment or transfer in this manner, including:

  • that dividends can be frankable;
  • that there are cost base adjustments to the shares of the private company post-distribution for capital gains tax (CGT) purposes; and
  • confirming that CGT roll-over consequences apply (for both parties) on transfer of property[7].

Whilst this ruling refers to matrimonial property proceedings and Family Court orders throughout, it’s equally applicable to property settlement proceedings as they apply to de facto couples and property settlements involving Binding Financial Agreements[8].

How does this impact me?

The new ruling adds another layer of complexity to be considered in property settlement negotiations between former spouses. If the implications of this ruling are overlooked, an otherwise equitable property settlement can be turned into an inequitable one, particularly for the party that is in receipt of cash or property from the private company. Any extra tax that will be payable due to this new ruling will need to be crystallised to the greatest extent possible and taken into consideration as a further liability of the parties to be apportioned. How the resulting tax liabilities are to be funded will need to be specifically addressed in the Family Court orders or Binding Financial Agreement, particularly if either party proposes to transfer or receive assets that cannot be readily liquidated into cash (such as real property).

In short, the cost of divorce will rise for many couples if their property settlements are not effectively structured. The new ruling has the potential to impose large tax bills on payments that were previously treated as tax free by the ATO, thereby reducing the net assets to be divided between the parties.

What should I do?

Each family’s matrimonial asset pool is unique, containing any combination of asset types, holding structures (such as trusts or companies) and associated tax attributes. The silver lining is (and always has been) that from such circumstances, tax planning opportunities can still arise—for the benefit of both parties.

When negotiating your property settlement and determining the division of the matrimonial pool of assets with your family lawyer, now more than ever it’s essential that a knowledgeable tax adviser sits at the table so that your post-settlement, after-tax financial situation is canvassed in full and that any tax traps (such as this ruling) are spotted and sprung … before you get caught.

If you’re in need of advice or assistance to detangle your matrimonial assets, contact the Argyle Private team at Rockwell Olivier Lawyers. Written by Genevieve Morgan and Patrick Huang.

Genevieve Morgan  is a family lawyer Rockwell Olivier (Sydney). You can contact Genevieve at gmorgan@ro.com.au.
Patrick Huang  is part of the Rockwell Olivier national tax team. You can contact Patrick at phuang@ro.com.au.

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