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ARTICLE · 21 FEBRUARY 2022

Will Guardian protect family trust distributions from attack by the ATO?

McCullough Robertson
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Section 100A of the Income Tax Assessment Act 1936 has become an area of significant focus for the ATO and tax advisors.

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David Hughes
David Hughes
Melinda Peters
Melinda Peters
Hugo Southcott
Hugo Southcott
Adria Askin
Adria Askin
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On 8 February 2022, the Commissioner appealed Justice Logan's decision on section 100A in Guardian AIT Pty Ltd ATF Australian Investment Trust v Commissioner of Taxation  [2021] FCA 1619 (Guardian) to the Full Court of the Federal Court of Australia. 

Over the past several years, section 100A of the Income Tax Assessment Act 1936  (Cth) has become an area of significant focus for the Australian Tax Office (ATO) and, consequently, Australian tax advisors.  We have seen the Commissioner commence numerous audits of private client groups - in particular, with a focus on challenging the purview of the ordinary family or commercial dealing  exclusion.

Alongside the development of a draft ruling and practical compliance guideline, which were both due to issue February this year, the Commissioner has been looking for a case to test the exclusions from 100A - both the exclusion for an agreement entered in the course of ordinary family or commercial dealings and for

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