Home/Services/Trusts & Private Groups

Trusts and private groups

Division 7A, section 100A, trustee resolutions, deed defects and vesting dates - the four or five things that quietly decide whether a private group works.

Most private groups in Australia are built on a discretionary trust, a company or two and a deed nobody has read since it was signed. That structure works until something tests it: a distribution the ATO looks at, an appointor who dies, a deed that never defined income, or a vesting date that arrives on its own.

This is the core of the practice. It is also the area where the law has moved fastest: Division 7A and unpaid present entitlements, section 100A and reimbursement agreements, the reach of trustee discretions and the proposed minimum tax on discretionary trust distributions.

What we do

  • Division 7A: deemed dividends, complying loan agreements, unpaid present entitlements, interposed entity rules and section 109RB relief
  • Section 100A: reviewing distribution arrangements against the reimbursement agreement provisions and the ordinary family or commercial dealing exclusion
  • Year-end trustee resolutions: drafting, reviewing and fixing what the deed actually requires
  • Trust deed review, variation and rectification, including appointor and guardian succession
  • Trust vesting dates: identifying them, advising on the consequences and planning the wind-down
  • Family trust elections and interposed entity elections and family trust distribution tax exposure
  • Excluding foreign beneficiaries to manage surcharge duty and surcharge land tax
  • Streaming of capital gains and franked distributions and specific entitlement
  • Private group restructures, corporate beneficiaries and intra-group loan accounts
  • Estate and succession issues where the trust, not the will, controls the wealth

What we are usually brought in on

  • The default clause does not create a present entitlement by 30 June and the trustee is assessed at the top rate.
  • The appointor line has dead-ended: appointor dies, successor dies and nobody can replace the trustee without a court application.
  • The beneficiary class sweeps in foreign persons and triggers surcharge duty and surcharge land tax on trust property.
  • Nobody has checked the vesting date and trusts settled in the 1980s and 1990s are reaching vesting on their own.

Our approach

Read the deed. Every trust question starts with the actual instrument, not the template it came from. A surprising proportion of trust problems are deed problems.

Fix it before it is tested. Deed defects, missing streaming powers and broken appointor succession are all cheaper to fix now than to argue about later.

Work alongside the accountant. Most of this work is done with the client’s accountant, not around them. We are not a tax agent and do not compete for compliance work.

Recent decisions on trusts and private groups

7 October 2026
Trusts

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.

29 September 2026
Family law

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.

28 September 2026
Family law

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.

25 September 2026
Family law

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.

28 August 2026
Family law

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.

29 July 2026
Trusts

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.

Show all 24 notes
22 July 2026
Asset protection

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.

9 July 2026
Trusts

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.

24 June 2026
Trusts

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.

10 June 2026
Trusts

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.

24 April 2026
Trusts

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.

15 April 2026
Superannuation

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.

13 April 2026
Superannuation

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.

8 April 2026
Trusts

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.

7 April 2026
Superannuation

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.

April 2026
Trusts

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.

April 2026
Superannuation

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.

30 March 2026
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.

21 March 2026
Trusts

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.

12 March 2026
Trusts

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.

7 March 2026
Trusts

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.

4 March 2026
Trusts

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.

2 March 2026
Trusts

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.

3 February 2026
Trusts

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.

Have a matter you want a straight answer on?

Most engagements start with a short conversation about the issue and the exposure.

arda@nortonquaytaxlaw.com.au