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Effective disclaimers

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DisclaimerThis material is copyright. Apart from any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission from The Tax Institute.
Unless expressly stated, opinions are not that of The Tax Institute, which accepts no responsibility for the accuracy of any of the information contained within it.

Published on 01 Feb 18 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

In the landmark case of FCT v Ramsden, the Full Federal Court held that disclaimers by particular beneficiaries were “necessarily” ineffective and provided guidance on what is required for a disclaimer to be effective. However, despite the guidance provided by the Full Federal Court in the Ramsden case, several recent cases have demonstrated that taxpayers continue to be troubled by the difficulties in making effective disclaimers — either by the form of those disclaimers or the circumstances in which they are made. For advisers, it is critical to be sensitive to these issues so that one can identify when a disclaimer is called for, and ensure that the interest is disclaimed effectively. This article focuses on the relevance of disclaimers to income tax disputes by reference to recent decisions, noting that there is also recent authority on the effectiveness (or lack thereof) of disclaimers in the context of payroll grouping provisions.

Author profiles

Dr Keith Kendall CTA
Keith is a Tax Partner at Rigby Cooke Lawyers in Melbourne. Previously, he was a Barrister at the Victorian Bar for almost six years, specialising in all aspects of taxation law at both a Commonwealth and state level, providing opinions as well as handling all aspects of the tax litigation process, including objections and ruling applications. Prior to coming to the Bar in 2011, he worked in the Tax Services division of Deloitte in Melbourne for over 10 years. Until 2016, Keith was the coordinator of Tax Law programs at the School of Law at La Trobe University, where he was a Senior Lecturer. Updated by Kathy Xu for the New Member / Grandaunts Cocktail network events on 31 May 2018 - Current at 01 August 2018
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Nicholas Dodds
Nicholas is a Lawyer with Rigby Cooke Lawyers. - Current at 15 February 2018
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