Recent Cases

Commissioner of Taxation v Carter [2022] HCA 10 (06 April 2022) (Gageler, Gordon, Edelman, Steward and Gleeson JJ)


Income Tax (Cth) – Trusts – Where s 97(1) of Income Tax Assessment Act 1936 (Cth) provides that where beneficiary of trust estate not under any legal disability is presently entitled to share of income of trust estate, assessable income of beneficiary shall include so much of that share of net income of trust estate as is attributable to period when beneficiary was resident – Where trust deed provided that, if trustee made no effective determination to pay, apply, set aside or accumulate any part of trust income in given accounting period, income held on trust for specified beneficiaries – Where trustee failed to pay, apply, set aside or accumulate income in income year – Where share of trust income in income year held on trust for beneficiaries – Where Commissioner of Taxation assessed each beneficiary on basis that beneficiaries “presently entitled” to share of income within meaning of s 97(1) – Where beneficiaries subsequently disclaimed interest in share of income – Whether present entitlement under s 97(1) determined immediately prior to end of income year – Whether disclaimers operated retrospectively so as to disapply s 97(1) in respect of income year.

Words and phrases – “default distribution”, “disclaimer”, “end of the year of income”, “presently entitled”, “presumption of assent”, “retrospectively disapply”, “right to demand and receive payment”, “trust estate”, “vested in interest and vested in possession”.