Sunny Afternoons - Counter-intuitive Tax Planning **

We had an adviser recently wanting to explore having a client make distributions from a family trust directly to a superannuation fund.

Historically (during the mid-1990s), this was a strategy that many were using until the government closed the loophole.

The way in which the loophole was closed was to treat all such income as 'special income' of the super fund or, as it was then renamed, 'non-arm’s length income'. This type of income is taxed at a flat rate to the fund of 45%.

Interestingly, what the adviser had realised however was that many trust distributions are now effectively taxed at 47% if they go to beneficiaries on the top marginal rate, given the increase in the Medicare levy.

Trust distributions to a superannuation fund may therefore be (marginally) tax effective initially and also a good way to ensure that superannuation savings are increased at a far greater rate than would otherwise be available if relying on the contributions within contribution caps – and subject to overlaying issues such as the $3M cap.

** For the trainspotters, ‘Sunny Afternoon’ is one of the first tax referencing rock songs by the Kinks from 1966, see:

Einstein’s prenup: … and holidays in Malibu**(?)

Previous View posts have looked at various cases where a binding financial agreement (BFA) has been held to be ineffective.

BFAs can be entered into at the start of a relationship (that is, a traditional ‘prenup’), at any time during the relationship (‘midnup’) or once the relationship has ended (‘postnup’).

While we see BFAs add value as prenups and postnups, perhaps understandingly we see few midnups successfully assist. Indeed we are aware of many situations where one spouse raising the idea of a midnup has been a catalyst for the ending of the relationship.

One of the highest profile examples of this is given by Albert Einstein.

According to biographer Walter Isaacson, as Einstein and his wife Mileva’s relationship deteriorated, they decided to try and stay together for the sake of their children.

Part of Einstein's approach involved him setting out a list of 'conditions' his wife needed to accept in writing (ie a form of early 20th century ‘midnup’), as follows:

A. You will make sure:

1. that my clothes and laundry are kept in good order;
2. that I will receive my three meals regularly in my room;
3. that my bedroom and study are kept neat, and especially that my desk is left for my use only.

B. You will renounce all personal relations with me insofar as they are not completely necessary for social reasons.

Specifically, you will forego:

1. my sitting at home with you;
2. my going out or travelling with you.

C. You will obey the following points in your relations with me:

1. you will not expect any intimacy from me, nor will you reproach me in any way;
2. you will stop talking to me if I request it;
3. you will leave my bedroom or study immediately without protest if I request it.

D. You will undertake not to belittle me in front of our children, either through words or behaviour.

As usual, please make contact if you would like access to any of the content mentioned in this post.

** For the trainspotters, the title of today's post is riffed from the Hole song ‘Malibu’.

View here:

Oops! … I did it again**: amending existing agreements

An issue that often arises is the desire to amend an existing agreement, with effect from a particular date – regularly that date will be on and from the day the original agreement was entered into.

It is generally accepted that, as between the parties, an agreement can be effective and binding on whatever basis is desired. This does not mean however that an agreement can be changed such that it is binding retrospectively on third parties, such as revenue authorities.

Arguably the leading case in this area is Davis v Commissioner of Taxation; Sirise Pty Ltd v Commissioner of Taxation 2000 ATC 4201. As usual, if you would like a copy of the case please contact me.

In this case the parties purported to have an agreement entered into that caused adverse tax consequences amended some time later, with effect from the date of the original document.

In rejecting the effectiveness of the amended agreement in binding the Tax Office it was confirmed that a rectification by a court or by deed between the parties is the only approach that binds third parties. Such an approach however is only available where the parties are under a mutual mistake that the document they signed recorded the terms of their bargain, when in fact it did not.

Rectification does not operate to ‘alter the past’, rather it simply recognises what had in fact always been the case, namely that the true agreement between the parties was not correctly recorded in the document that was mistakenly signed.

Critically, rectification requires that there must have been a mutual mistake. In other words, ‘a common intention between the parties as to the effect that the instrument they signed would have had which was inconsistent with the effect which the instrument which they executed in fact had’.

A mistake or misunderstanding, for example, as to the revenue consequences of an agreement is not a mutual mistake allowing rectification.

** For the trainspotters, the title today is riffed from Britney Spears song of the same name from 2000 see hear (sic):