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'Resettlement' and continuity of 'trust estate' — update on the ATO's view after Commissioner of Taxation v Clark

The Australian Taxation Office (ATO) has confirmed that a change in trust circumstances, including a change in membership and trust property, does not necessarily create a new 'trust estate' or cause a 'resettlement' of the trust. Effectively, the proposition established in the High Court decision of FCT v Commercial Nominees Australia has been broadened to apply to unit trusts.

This article includes a link to a previous ClearLaw article that discusses Clark's case.

Viviane Karoumbalis


In the ATO's view, the decision of the Full Federal Court in Commissioner of Taxation v Clark[1] does not change the basic proposition established in the High Court decision of FCT v Commercial Nominees Australia[2], that:

  • a change in trust circumstances, including a change in membership and trust property, does not necessarily create a new 'trust estate' or cause a 'resettlement' of the trust; and
  • the relevant focus for determining the issue is whether the continuity of the estate has been maintained.

The ATO's view is expressed in a Decision Impact Statement on 2 December 2012 following the Full Federal Court decision in Commissioner of Taxation v Clark.

To read the full Decision Impact Statement please click here.

Even so, the decision in Clark gives practitioners much greater comfort on these issues as the rationale applied in Commercial Nominees — in the context of an indefinitely continuing superannuation fund — has been broadened to apply to a unit trust.

The facts

Broadly in Clark's case, a unit trust made net capital gains in the 2001 income year in connection with the sale of properties acquired in 1997. In the 1991, 1992 and 1993 income years, the trust had made significant capital losses.

Between June 1993 and 30 June 2001, various characteristics of the trust changed including:

  • a change in trustee;
  • changes in unitholders;
  • extinguishment of liabilities of the trust;
  • extinguishment of a former trustee's right of indemnity out of the trust assets; and
  • changing trust activity from a dormant trust to an active trust (through the new trustee adding $1.8 million to the trust).

The issue

The issue was whether the capital losses made by the trust between 1991 and 1993 could be offset against the gains made from those sales to reduce the net capital gain to nil.

The Commissioner's argument

The Commissioner argued that the capital losses were not available to be offset against the gains because the trust estate that made those capital losses was not, for tax purposes, the same trust estate that made the gains.

The decision

The Court disagreed with the ATO and held that the trust had maintained continuity and therefore the capital losses incurred between 1991 and 1993 were available to be offset against the capital gains in the 2001 income year.

The Court:

  • rejected the Commissioner's argument that there was a 'substantial discontinuity' with respect to each of the three main criteria identified by the High Court in Commercial Nominees; and
  • found that as long as continuity of trust property, membership and trust obligations can be established, then various changes made to a trust's characteristics, membership and property, will not necessarily create a new trust — particularly if the trust deed contemplates these changes.

For more information on the decision, see our April 2011 ClearLaw article, titled 'Avoiding trust resettlement — further insight gained from the decision in Commissioner of Taxation v Clark' here.

Appeal to the High Court

On 18 February 2011, the Commissioner sought special leave to appeal to the High Court. The High Court refused the Commissioner's application on the basis that the decision of the Full Federal Court 'involved characterisation and evaluation of the continuity of the trust estate' and there was not enough doubt for an appeal.

ATO's view of the Decision

The Commissioner view is that:

  • the trust estate must be terminated for the loss of continuity to deny a trustee access to any capital losses being carried forward;
  • the High Court in Commercial Nominees left open the possibility that there might be a loss of continuity in circumstances short of the trust's existence ending;
  • to determine whether the existence of the trust has ended, the test to be applied is to look at changes to:
    • the trust's constituent documents;
    • the trust property; and
    • the identity of those with a beneficial interest in the trust property, and
  • Clark's case is not definitive on the issue of whether or not an attempt by a trustee to waive its right of indemnity may be effective at law.

Other application

The ATO accepts that the principles set out in Clark's case may have broader application. In particular, in the circumstances in which CGT Event E1 (section 104-55 of the Income Tax Assessment Act 1997 a trust is created over a CGT asset by declaration or settlement) may happen by reason of a new trust coming into existence as a result of changes being made to an existing trust.

Consequently, the ATO will review the 'Creation of a new trust - Statement of Principles August 2001'. We will monitor whether any further developments arise.

Request for comment

If you feel the Decision Impact Statement has consequences that have not been identified by the ATO, or if a Public Ruling or an ATO ID requires reconsideration or amendment, then the ATO invites comments by 1 February 2012.

More information from Maddocks

For more information, contact Maddocks on (03) 9288 0555 and ask to speak to a member of the Tax and Revenue or General Commercial Teams.

More Information from Cleardocs

For more information about the Cleardocs: see a Guide by Maddocks dealing with:

For other ClearLaw articles on trusts see here.

[1] [2011] FCAFC 5

[2] (2001) 47 ATR 220


Lawyer in Profile

Paul Ellis
Paul Ellis
Special Counsel
PH: 61 3 9258 3524

Paul is a Special Counsel in the Maddocks Commercial team with particular expertise in commercial agreements for the supply of goods and/or services, the Personal Property Securities Act 2009, the National Consumer Credit Protection Act 2009 and the National Credit Code and the Australian Consumer Law.

Paul's key areas of practice include:

  • Australian Consumer Law;
  • credit and securities law;
  • commercial law and contracting;
  • government contracts; and
  • trust and superannuation law.

Before joining Maddocks, Paul was employed for 13 years with the Victorian Department of Justice, principally as a Deputy Registrar in the Victorian Magistrate's Court, but also as a legislation, policy and project officer for the Department.