Australia - Capital Gains Tax and Tax Avoidance – Recent Developments

Continual attempts to avoid capital gains tax came again under scrutiny by the courts and the tax office in 2020. Coming on the heels of the decision by the Federal Court in April 2020 in Peter Greensill Family Company Pty Ltd (trustee) v. Commissioner of Taxation [2020] FCA 559, the recent decision in the case of N&M Martin Holdings Pty Ltd v. Commissioner of Taxation [2020] FCA 1186 (18 August 2020) is a further note of caution for trustees distributing capital gains to non-resident beneficiaries. The Australian Taxation Office also issued a tax alert, TA 2020/4, in August 2020 concerning multiple entry consolidated groups that attempt to avoid capital gains tax using a transfer of assets to an eligible Tier 1 company prior to divestment of the relevant asset. This article will discuss the implications arising from the decision in the Martin Holdings case, and will consider whether the outcome would be different if the trust took a different form, specifically a fixed trust (the trust in the case being a discretionary trust). It will also look at the effect of amendments that were made in 2011 in respect of streaming of capital gains and franking distributions from discretionary trusts.