Notes on recent tax decisions

The minimum tax on discretionary trusts

Exposure draft, 3 September 2026

The 30 per cent minimum tax on discretionary trusts from 1 July 2028: the exposure draft, the Division 6F election, the rollover and our two Treasury submissions.

Not an even split

Harridan [2026] FedCFamC1A 104; Keadle [2026] FedCFamC1F 477

Two 2026 family law decisions gave the wife 65 and 63 per cent: one for an inheritance, one after SMSF withdrawals and a wide income gap.

Who gets the saving

Cassian & Soter [2026] FedCFamC1F 461

Interest owed to the ATO came off the property pool by agreement, so a remission would have been shared. Three more points for advisers.

Who got the benefit

Joubert (No 5) [2026] FedCFamC1F 402

A wife alone owed the ATO about $4.2 million. The court shared the burden 80/20 because the unpaid tax had helped pay for the house they both owned.

One email, seven chances

Watson (No 2) [2026] FCA 1341

An email withdrew a taxpayer's Tribunal case. After seven listings over 12 months, missing medical evidence, not the email, ended it.

Who spent the money

Pratley [2026] FedCFamC1F 398

A family law decision keeps a husband's post-separation tax debts out of the property pool. Tax on winding up the company went in.

Being better at the job is not the job

Hartley [2026] ARTA 1590

The Tribunal denies an employee's home lab, storage and subscription claims. The reasons apply Hatchett and never test Finn.

The deed he signed anyway

Egan [2026] FCA 1104

The Federal Court refuses to vary a settlement deed with the Commonwealth over a 2003 private ruling the Commissioner later determined was incorrect.

A rehearing, not a result

Hasan [2026] FCA 1072

The Federal Court sets aside a Tribunal decision on childcare fees said to belong to the educators. The win may change little on remittal.

The folder nobody opened

BHZD [2026] ARTA 1376

A Tribunal decision on the safe harbour, what has to be handed to a new agent and a penalty that turned on an unopened folder.

Ninety days, no hearing

The Bill before Parliament would let the Board suspend a tax agent for 90 days without a hearing. It lands hardest on sole practitioners.

The rollover question nobody is asking the trustee

Treasury consultation paper, 8 July 2026

The proposed trust to company rollover moves essentially all the assets to some beneficiaries only. Who loses and what the paper does not say.

The cleaning company with no cleaners

Cerisewin [2026] NSWSC 877

The NSW Supreme Court holds a cleaning business with no cleaners of its own was an employment agent, and $2.07m of payroll tax, penalty and interest stands.

The family loan the court ignored

Han & Han [2026] FedCFamC1A 54

A $4.66 million family debt with a signed agreement and a caveat on title, disregarded because nobody ever behaved like a lender.

First home buyer duty and the residence requirement

Chew [2026] NSWCATAD 200

A NSW decision on the first home buyer residence requirement where a medical need interrupted occupation.

The rundown house next door

Boyd [2026] NSWCATAD 209

NCAT holds the principal place of residence exemption covers the adjoining lot, because the dilapidated house on it was not capable of separate occupation.

Leave loading without the super

Department of Education [2026] FCA 898

The Federal Court holds the Victorian teachers' leave loading was not ordinary time earnings, without the lost overtime link the ATO ruling demands.

Sixty per cent through a bucket company

Treasury consultation paper, 8 July 2026

Treasury's consultation paper on the 30 per cent minimum tax for discretionary trusts: what it confirms, the design gaps and what it cannot yet answer.

The casino knew more than the return

Cai [2026] ARTA 1224

A Tribunal decision where $42,000 of declared income met half a million dollars of casino buy-ins, and the friends-lent-it defence had no records.

Conducting the orchestra

Larmar [2026] FCA 826

The Federal Court assesses 30 years of syndicate fees to the accountant personally, with the bank documents doing much of the damage.

$253,055 in duty on a draft that transferred nothing

Forever Grateful [2026] NSWSC 761

A NSW Supreme Court decision on when a duty liability arises and why uploading a draft transfer to eDuties did not create one.

Payroll tax and how wide the contractor provisions reach

SKG Cleaning [2026] NSWCA 122

A NSW Court of Appeal decision on the payroll tax employment agency provisions, how far they extend and where they stop.

Remission is not a fairness safety net

Tang [2026] NSWCATAD 183

A NSW decision on motor vehicle duty, the two interest rates and why remission is a narrow concession rather than relief for honest mistakes.

The ball gown was never deductible

WXGY [2026] ARTA 1129

A Tribunal decision allowing about $48,700 of $143,788 claimed by a real estate agent and upholding a 50 per cent penalty for re-running audited claims.

Six days to 30 June

A year-end reminder on trustee resolutions: what has to be done before 30 June and the consequences of missing it. Published note.

The Crocodile Dundee royalty claim

Bouvet [2026] ARTA 1075

A Tribunal decision on a $19.6 million withholding credit claim, what sits outside an assessment and when an application has no reasonable prospects.

Hardship, measured line by line

Prasser [2026] ARTA 1053

A Tribunal decision releasing a $148,582 tax debt for serious hardship, and how the household budget is tested line by line.

“I relied on my lawyer” is not evidence of advice

Rahman [2026] NSWCATAD 172

A NSW decision on surcharge purchaser duty, penalty tax and what a taxpayer must actually prove to establish reasonable care.

The tie-breaker follows the salary

Bulie [2026] ARTA 1003

A Tribunal decision applying the Singapore treaty tie-breaker to a $700,000 executive whose family stayed in Sydney, and why the salary decided it.

Bendel: nothing is not a loan

Bendel [2026] HCA 18

The High Court holds five to two that an unpaid present entitlement is not a Division 7A loan, and why the win arrives smaller than it once looked.

Thirty days to report a breach

Registered practitioners must report significant Code breaches, their own and other practitioners’, within 30 days. What counts as significant and what is coming.

Remain is not a life estate

Morgan [2026] NSWCATAD 149

A NSW duty decision on whether a right to remain in the family home is a life estate, and why the case was lost on valuation evidence rather than the law.

The gifts that arrived monthly for eleven years

Cheung [2026] FCAFC 75

The Full Federal Court on why $30 million in regular payments from a family business were income, and why demeanour cannot outweigh the documents.

Picking at the assessment is not proof

Fan [2026] ARTA 875

A Tribunal decision on default assessments where the Commissioner filed a mess and the taxpayer still lost, because the burden never moved.

The temporary visa that lasted seventeen years

Ward [2026] ARTA 872

A Tribunal decision on the domicile test where successive temporary visas, a settled overseas life and a sold Sydney home ended Australian residency.

The block is the asset

Shell Energy [2026] FCA 577

The Federal Court values a deemed 1997 acquisition of a 34 per cent Woodside stake at an 18 per cent premium to the ASX price, about $390 million of cost base.

The loan repayment your client never saw

Frizelle [2026] ARTA 752

A rare s 99B decision where a foreign trust part-repaid the beneficiary’s loan and the amount was applied for her benefit without a dollar reaching her.

Truckies Tax Accountants, permanently restrained

Hinckfuss (No 2) [2026] FCA 529

The Federal Court permanently restrains a repeat unregistered preparer, and what a failure to file a concise statement in response means on default judgment.

The top-up that cost $19.9 million

ISPT [2026] NSWSC 424

The NSW Supreme Court aggregates a public-period acquisition with a later private-period top-up, and duty lands on the entire 95.26 per cent.

Commercial does not mean profitable

Toowoomba [2026] FCAFC 50

The Full Federal Court reverses Logan J on what makes a car park a commercial parking station for FBT, and the 1 km gateway gets harder to escape.

The unwritten agreement that saved the exemption

Marshall [2026] NSWCATAD 116

A NSW decision holding the matrimonial property exemption survived a transfer that departed from the consent orders, on an agreement inferred from conduct.

The loan agreement buried in the constitution

Botella [2026] ARTA 604

A deemed loan agreement in the company constitution fails s 109N, and the holdco restructure built to fix it is dividend stripping under s 177E.

Fifteen years of BAS and no enterprise

Twilley [2026] ARTA 562

A decision on what carrying on an enterprise requires for GST and the consequences when registration was never justified.

Thirty years a trustee, no deed to prove it

RPW Services [2026] NSWSC 363

A NSW Supreme Court application where no document proved the trustee of a 1979 superannuation fund was ever validly appointed, and what the Court did.

Surcharge land tax and the trust nobody amended

SN Casey [2026] NSWCATAD 105

A NSW decision on surcharge land tax where a discretionary trust holding residential property had never excluded foreign beneficiaries.

Disqualified without dishonesty

Maietta [2026] ARTA 534

An SMSF built to fund the trustee’s own Spanish villa project: sole purpose breached, returns never lodged, disqualification affirmed despite no dishonesty.

Genuinely redundant, fully taxed

Hardy [2026] ARTA 528

A genuinely redundant sprinkler fitter missed the genuine redundancy tax-free threshold because his industry fund pays the same on voluntary resignation.

Self-education without the nexus

Bhattacharya [2026] ARTA 538

A Tribunal decision disallowing $31,541 of online entrepreneur courses claimed by an enterprise IT manager, on a textbook application of Hatchett.

The cafe that cost the farm its exemption

E-Synergies [2026] NSWCATAP 103

A NSW Appeal Panel decision on mixed-use rural land where the cafe and the cottages, not the cattle, were the dominant use for land tax.

Owies and what real and genuine consideration requires

Owies [2022] VSCA 142

What a trustee must actually do to give real and genuine consideration to beneficiaries and the consequences when it does not.

The DOCA that stopped paying

McCabe [2026] FCA 395

The Federal Court terminates a pooled DOCA after the funding director defaulted and left the country, clearing the way for liquidators to investigate.

The cascade after bankruptcy

Hunt [2026] FCA 389

A bankrupt former sole director of an SMSF corporate trustee obtains leave to manage it and an order that he is not a disqualified person.

PCG 2026/D2 and the reach of the draft guideline

Draft PCG 2026/D2

What the ATO's draft practical compliance guideline targets in property development structures and where it overreaches. Published note.

A counterfactual needs a paper trail

Collie [2026] ARTA 328

A Tribunal decision on the evidence needed to show there was no tax benefit. Claimed funds for living expenses fell short without bank records or evidence of outgoings.

Trust distributions: the exposure that is not tax

Why trust distribution resolutions matter beyond the tax outcome, the traps that create exposure and a practitioner checklist. Published note.

Home office occupancy expenses after Hall

Hall [2026] FCAFC 43

The Full Federal Court on why employees cannot deduct occupancy expenses for a home office and the essential character test.

Where the in-house asset rule actually stops

Aussiegolfa [2018] FCAFC 122

The boundaries of the in-house asset rule and the sole purpose test for SMSFs investing through unit trusts.

The trust deed with blanks in it

Michelakis [2026] NSWSC 276

A NSW decision on incomplete trust deeds, what the court will do about missing particulars and why it matters.

What actually happens in an ATO review or audit

How the ATO compliance process works, the difference between a review and an audit and the practical lessons for advisers. Published note.

1,632 lots and still a realisation

Morton [2026] FCAFC 31

The Full Federal Court holds a farmer's 1,632-lot subdivision was a mere realisation, and the development agreement's structure decided it.

The $1.49 billion contingency

Tabcorp [2026] FCAFC 30

The Full Federal Court rejects a $1.49 billion Division 230 loss on a terminal payment that had no real possibility of being paid.

We lost, but nothing changes

PepsiCo [2025] HCA 30

The ATO's Decision Impact Statement on PepsiCo reads less like guidance and more like litigation strategy. What the High Court actually decided.

Contractors, relevant contracts and two separate questions

Living Works [2026] NSWCATAD 80

A NSW decision working through both payroll tax questions: are the workers employees and if not, is there a relevant contract?

The beneficiary who never was

The company was never an eligible beneficiary and the distributions are void. The tax consequences, the rectification options and where each one runs out.

There is no wrong method

Esperia [2026] NSWCA 30

The NSW Court of Appeal holds there is no legally required valuation method, and methodology disputes dressed as questions of law will not survive.

Handing over your TFN is not a defence

Verma [2026] ARTA 343

A taxi driver gave his details to an acquaintance who lodged false BAS. The Tribunal upheld the 75 per cent penalty and the uplift.

Back-to-back rollovers and the Part IVA pivot

AusNet [2025] FCAFC 21

The nothing else battle is settled after AusNet. The ATO's attention on sequential CGT rollovers now shifts to Part IVA, and the commercial narrative matters.

The logbook written after the fact

Afshari [2026] ARTA 159

An engineer claimed $61,286 in work-related deductions. Reconstructed logbooks, a calendar built from memory and a 70 per cent utilities claim all failed.

Director penalty notices and the evidence trap

Wynyard [2026] NSWSC 175

A NSW decision on director penalty notices, service and why the evidentiary position matters more than the argument.

Gift and loan back arrangements: benefits and traps

How gift and loan back arrangements work, what the courts have said about them and where they fail. Published note.

Family trust elections: do you know why yours was made?

When a family trust election is worth making, how to choose the test individual and what goes wrong when families change. Published note.

The template trust deed that did not exclude foreign persons

Verona Hill [2026] NSWCATAD 69

A NSW decision on why foreign person exclusion clauses in a template trust deed can still fail the surcharge land tax test.

Specialised work, same payroll tax

SoClean [2026] NSWSC 161

The NSW Supreme Court holds $30 million of specialised cleaning subcontractor payments were deemed wages, on every issue argued.

Trust vesting: the deadline nobody diarised

What happens when a discretionary trust vests: the discretions end, income splitting stops and the CGT and duty consequences that follow.

Penalty remission built on the person

Yuen [2026] ARTA 279

A rare Tribunal decision remitting sales suppression and shortfall penalties under s 298-20 and what actually tipped the balance.

The 1985 deed that saved the building

Brisbane Club [2026] FCA 220

The Federal Court on when a building on pre-CGT land becomes a separate CGT asset and why the date the contract was entered decides it.

$19 a day and seven failed grounds

Shaw [2026] FCA 197

The Federal Court rejects the Commissioner's approach to travel meal deductions claimed within the reasonable amount, on every ground argued.

The section that does not say non-resident

Why section 99B is literally capable of reaching resident trust distributions, the limits of the corpus exception and the traps in accumulated income.

Winning the appeal was the easy part

Hicks (No 2) [2026] FCAFC 14

The Full Court on why winning taxpayers still failed to get indemnity costs and how a formal offer should be built from the start.

Technically correct, deeply unfair

Lewis [2026] ARTA 256

A Tribunal decision affirming CGT on shares sold to keep a collapsing business alive and where the system leaves no discretion.

The ATO’s general interest charge problem, diagnosed

Tax Ombudsman report, March 2026

What the Tax Ombudsman's review of general interest charge remission found and what it means for practitioners. Published note.

Trust deed variations: read the variation clause first

Whether a variation clause reaches definitions, schedules and the office of appointor and when a variation risks resettlement. Mercanti, Clark and TD 2012/21.

A practice statement is not the law

Yadav [2026] FCA 140

The Federal Court holds the Commissioner is not required to follow an internal practice statement when forming an opinion of fraud or evasion.

The renewal form is not a formality

Kumar [2026] ARTA 232

A tax agent answered No to the good fame question with an adverse tribunal finding behind him. Sixty nine breaches later, no stay of the termination.

Told the bank one thing, told the ATO another

Endycott [2026] ARTA 214

A decision on default assessments, inconsistent accounts of the same funds and what a taxpayer has to prove.

Born to race, taxed to drive

MXSN [2026] ARTA 186

A Tribunal decision on car fringe benefits where the logbooks were fabricated after the audit began and an expert argued the Ferrari was not a passenger vehicle.

Service fees on a mistaken assumption

S.N.A Group [2026] FCAFC 10

The Full Federal Court denies deductions for intragroup service fees paid after the written agreements had quietly expired.

The amendment between exchange and settlement

Antap Trust [2025] NSWCATAD 136

A family farm transfer nearly lost its s 274 duty exemption because the trust deed was amended between contract and settlement. Timing saved it.

A deed does not bind the Commissioner

Ziegler [2025] FCAFC 168

The Full Federal Court reaffirms that a settlement deed cannot constrain the Commissioner's statutory powers of assessment.

Calling it interest did not make it interest

Charles Apartments [2025] FCAFC 180

The Full Federal Court denies a $1.87 million interest deduction where the payment discharged another company's debt and protected the capital position.

Trust deed first. Always.

Di Paolo [2026] FCAFC 1

A Full Court decision on a change of trustee that was never made the way the deed required. Later letters could not fix it.

A right to occupy, strictly under the will

Draft TD 2026/D1

The draft determination tightens the main residence exemption for deceased estates: the will itself must grant the right to occupy, and trustee discretions do not count.

Or means or

Special Situations [2025] QSC 345

The Supreme Court of Queensland sets aside $14m of landholder duty, reading the group property gateway the way restructures actually work.