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Varying Trusts after Clark

Published on 13 Mar 2013 | Took place at RACV Club, Melbourne, VIC

    The Commissioner’s loss in Clark’s case resulted in the withdrawal of its Statement of Principles. This session will seminar examined how this decision and the withdrawal of the Statement of Principles has affected the variation of trusts, including:
  • a closer look at the decision in Clark
  • the Commissioner’s position after Clark and Taxation Determination TD 2012/21
  • variation powers under the trust deed and the Trustee Act
  • common variation scenarios:
  • change of control – trustees, appointers and guardians
  • adding income definitions
  • removing existing beneficiaries
  • adding new beneficiaries
  • changing the vesting date
  • changing the jurisdiction of the trust
  • options where there is uncertainty regarding a power to vary
  • removal of beneficiaries under the terms of the trust deed
  • disclaimer of interest
  • application to the Supreme Court.

Individual sessions

Varying trusts after Clark

Author(s):  Andrew O'BRYAN

The Commissioner’s loss in Clark’s case resulted in the withdrawal of its Statement of Principles. This paper examines how this decision and the withdrawal of the Statement of Principles has affected the variation of trusts, including:

  • a closer look at the decision in Clark
  • the Commissioner’s position after Clark and Taxation DeterminationTD 2012/21
  • variation powers under the trust deed and the Trustee Act
  • common variation scenarios:
    • change of control – trustees, appointers and guardians
    • adding income definition so removing existing beneficiaries
    • adding new beneficiaries
    • changing the vesting date
    • changing the jurisdiction of the trust
  • options where there is uncertainty regarding a power to vary
    • removal of beneficiaries under the terms of the trust deed
    • disclaimer of interest
    • application to the Supreme Court.
Materials from this session: