Neil Smith

From a reader... Dear Sir Under current legislation, all trusts (not just discretionary trusts) are taxed on accumulated income to which no beneficiary is presently entitled. Such income tax is assessed to the trustee under section 99A of the Income Tax Assessment Act, 1936 (“the Act”). The tax rate assessed to the trustee is at the highest marginal rate, plus Medicare. That imposition amounts to 47% of the accumulated income. The Commissioner retains a discretion to assess such income under section 99 of the Act, (which applies personal rates of taxation) but that discretion is exercised sparingly and only in limited cases, such as deceased estates and bankruptcies. Again, under current legislation, a share of trust income – to which a minor or a non-resident beneficiary is presently entitled to – is assessed to the trustee under section 98 of the Act and assessed again to the beneficiary with a full credit given to the beneficiary for the tax assessed to the trustee. The 2026 Federal Budget proposals change the concept of the taxation of beneficiaries of trust estates that has applied since the Federal Government introduced income tax. That is done by treating the trustee as a separate taxpayer on income to which beneficiaries of a discretionary trust are presently entitled to. Now, a beneficiary is said to be presently entitled only on the after-tax net income of a discretionary trust estate. Any credit for tax paid by the trustee, under these new proposals: is not fully credited to the beneficiary if it produces a cash tax refund to the beneficiary, and in the case of a corporate beneficiary the tax paid by the trustee is not credited at all. With all due respect to Treasury officials and the Treasurer, who devised this new arrangement, there is a complete misconception on who is being assessed on income to which a beneficiary is presently entitled to. Unlike companies, where the taxable income of a company is legally and beneficially derived by the company, in the case of trusts, including discretionary trusts, any net income of a trust estate to which a beneficiary is presently entitled to is income of the beneficiary, not the trustee. By taxing the trustee on income to which the trustee is not beneficially entitled to, and not passing the tax paid by the trustee to the beneficiary who is entitled to that income from the trust estate is not a tax, but – in my opinion – an illegal penal confiscation. Allow me to explain: The Core Problem: When a trustee is assessed on income to which a beneficiary is already beneficially entitled, without any credit (or a full credit) being passed to the beneficiary, two (2) serious legal problems arise with regard to the Constitutional validity of the legislation purporting to assess: 1. Section 51(ii) — Is it a Valid "Tax" or a Penalty/Forfeiture? The High Court in Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263 confirmed that a tax is "a compulsory exaction of money by a public authority for public purposes, enforceable by law, and... not a payment for services rendered." A "tax" – in the constitutional sense – requires it to be imposed for revenue-raising purposes, not as a punishment or confiscation. See Woodhams v Deputy Commissioner of Taxation of the Commonwealth of Australia (1997) VSC 59 on what constitutes a penalty (and not a tax). The key issue is whether imposing the full tax burden on a trustee — without any (full) credit mechanism for the beneficial owner — crosses the line from taxation into something more like a forfeiture or a penalty. In these circumstances, I submit the trustee’s right to exoneration and indemnity are in jeopardy and a beneficiary would be entitled to restrain the trustee from using trust funds to discharge a personal obligation, that is not a fiduciary obligation, even if the obligation was imposed by flawed legislation. 2. Section 51(xxxi) — Acquisition on Just Terms If the Commonwealth imposes a liability on a trustee with respect to property or income beneficially owned by another, and the trustee cannot recover that tax from the trust estate or beneficiary through the tax legislation itself or under the terms of the relevant trust deed, this could constitute an acquisition of property (money) from the trustee without just terms, contrary to s 51(xxxi) of the Commonwealth Constitution. The High Court has ruled in Minister of State for the Army v Dalziel (1944) 68 CLR 261 and most recently in Government of the Russian Federation v Commonwealth of Australia [2025] HCA 44 that section 51(xxxi) of the Constitution will protect a party whose property is assumed by the Commonwealth without compensation. The term “property” is widely characterised to give the affected party full constitutional protection. In my view, the proposed arrangements don’t fall into the unintended consequences camp, as is often claimed when some controversy is later discovered after a proper and considered analysis. In this case, the proposed arrangements are fundamental misconceptions, that fail to recognise basic constitutional protections.

The chart below shows the effective capital gains tax rate facing a business owner who invests $250,000 upfront, holds for 10 years, and then exits at different valuations. The result is striking: under Labor’s proposed CGT changes, Australian founders and investors would face an effective tax rate of up to 46% — roughly double the burden faced in most comparable markets, including the US, UK, Canada, Germany, Japan and New Zealand. And this is not just a founder problem. The same logic applies across all small, medium and large businesses, and any asset, including listed equities, property, private equity, venture capital and crypto. If these changes proceed, Australia will become one of the least attractive places in the developed world to build, invest, take risk and realise gains. The one major asset still sitting outside this tax net is the owner-occupied home, which remains CGT-exempt. That creates a powerful distortion. If investment properties, businesses, shares, commercial property and other assets are hit with materially higher effective CGT rates, capital will rationally look for shelter in the family home. The likely result: less capital for startups and productive enterprise, lower productivity, more pressure on rents as investors retreat from housing, higher inflation and interest rates, weaker demand for risk assets, and even more money being recycled into owner-occupied property — the last great tax haven in Australia. In short: this is not just a profound increase in the tax burden, with zero consultation in the name of giving imprudent politicians more money to waste. It is a major repricing of risk-taking in Australia. It is not reform: it is highly regressive, as it seeks to punish entrepreneurial success, which is the key driver of long-term jobs, incomes, growth and prosperity. It does not boost productivity: it destroys it by actively discouraging innovation and business creation. It will not lower the cost of living: it will lift it by boosting rents and making us much more inefficient. It will not reduce interest rates: alongside rampant and reckless government spending and record migration, it will pressure the RBA to raise our mortgage repayments. What is perhaps most shocking is that only 12 months ago this government was elected on the basis promising to never make these changes...