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The recent changes to tax law as a consequence of the High Court decision in this case has shed some light on the ways in which trust deeds may be drafted to define and modify what will be considered ‘trust income’ for tax purposes. Through the modification of trust deeds it is possible to avoid adverse tax implications, and even to allow for more beneficial outcomes. While the case has been accepted by the ATO to mean that trust deeds can be modified to define trust income, this has not overruled the general anti-avoidance and trust stripping rules that are triggered where there are deliberate mismatches between entitlements and tax incomes.
The Bamford decision emphasises the importance in conferring sufficient powers to allow trustees to determine the yearly trust income of a trust. In light of this, it is advisable for all trust deeds to be reviewed to consider whether or not the trust deed defines trust income, whether or not the trustee has adequate powers to modify trust income, whether or not there are appropriate streaming provisions and, if so, whether or not these are adequate going forward. Amendments should be considered where trust deeds do not protect from adverse taxation implications.