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Trust beneficiaries and exemptions from CGT: Reflections on the Oswal litigation

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Published on 01 Dec 16 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

A recent high-profile case litigated in the Federal Court promised to provide much needed judicial guidance on the availability of capital gains tax relief to temporary and foreign resident beneficiaries of Australian resident trusts. Additionally, it was expected that the scope of the role of s 115-215 of the Income Tax Assessment Act 1997 when assessing trust beneficiaries would be clarified by the decision. Following settlement of the dispute, these issues now must await fresh litigation. Perhaps this is to be expected, given the dismal state of the broader taxation legislation that applies to trusts. The plethora of rule changes over the last 20 years, accompanied by ambivalent text in explanatory memoranda, have left the area ripe for reform. This article explores the trust tax issues at stake in the Oswal case and the submissions put by the parties to the court, as well as the policy issues surrounding the availability of the CGT jurisdictional exemptions more generally.

Author profile

Timothy Russell
Tim works at the School of Taxation and Business Law (ATAX), Australian School of Business, University of New South Wales. - Current at 16 May 2013
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