Defensive planning: being proactive & also prepared to defend – 2018 Private Business Tax Retreat


While we have not seen substantive legislative change across areas that impact private business (aside from superannuation), there is a clear change of thinking around policies that generations of private client advisers have, more or less, taken for granted.

Although these changes are, for the most part, still evolving, they nevertheless must be taken into account when advising clients, particularly as decisions taken today in the context of existing laws may have long-term consequences in a new legislative environment.

In this post, we discuss the concept of defensive planning, previewing three sessions from the upcoming Private Business Tax Retreat to illustrate how modern advisers need to be both proactive and prepared to go on the defensive at the same time.

Raynuha Sinnathamby


We highlight three key areas that embody this approach of being proactive while ready to defend:

  1. Looking at that old cliché, that proper preparation prevents poor performance 
  2. Outlining how keeping an eye on the horizon can pay dividends when you’re making decisions today 
  3. What happens when you do find yourself on the defensive?

In this year’s keynote address at the Retreat, Springfield City Group Managing Director, Raynuha Sinnathamby, will pose the question ‘How did the advisers go?’

This question actually commands some lengthy qualitative and quantitative analysis in almost every instance, since the role and actual efficacy of advisers or ‘consultants’ is an important and sometimes vexed one.

Engaging an adviser without careful consideration of whether the adviser has the skills, experience, understanding of the task, and of the business of the company, as well as capacity to complete, can set both adviser and business up for trouble. Clarity around the parameters is also important to avoid extended engagements or unbudgeted costs.

Greater Springfield is Australia's largest master-planned city and community development project in single private ownership, with an ultimate planned population of 105,000 by 2030. This $32 billion development recently won the Urban Development Institute of Australia’s national award for best master-planned development.

The very nature of the dynamic skills base needed to complete the Greater Springfield city building project necessitates the use of advisers. This provides a good case study for the topic at hand.

A solicitor by profession, Raynuha has also served as Vice President and President of the Queensland Division of the Property Council of Australia and has served on the National Board of the Property Council of Australia. She currently serves on the Property Council Queensland Division Council and Management Council.

While Raynuha’s keynote will examine the importance of getting the right team in place before a project starts, the session from The Tax Institute’s own Professor Robert (Bob) Deutsch, CTA will look at a potential, hypothetical future state – highlighting the importance of keeping an eye on the horizon, planning today so you and your clients are ready for any eventuality.

Prof Robert
Deutsch CTA

On day two of the Retreat, Bob will present a session entitled ‘Ongoing use of trusts after the next election’.

Recently, public debate over 'tax avoidance' has begun to incorporate how trusts are being used. Last year saw much media attention paid to Labor’s pronouncements regarding changes to trusts and, with an election due sooner rather than later, advisers should consider the potential impacts of a change in government and a change in policy.

Bob is the The Tax Institute's Senior Tax Counsel and also recently served as a Deputy President of the Administrative Appeals Tribunal. For over 20 years he was a Professor in Taxation Law at the University of New South Wales, is experienced as a solicitor with a major national law firm, as an independent barrister, and as a director with a major accounting firm.

Bob’s session will look at the facts behind the various stances taken and what the various future states could mean for practitioners and their clients. He will address the details of the ALP’s policy, comparing and contrasting the official position of both the current government and Treasury, while offering a fresh look at the non-tax attributes of trusts, such as estate planning, asset protection, and flexibility.

Finally, what happens when you do need to go on the defensive, and how can some pre-planning for this eventuality make the process easier?

It's now five years since major changes were made to Part IVA, including removing 'tax purposes' from a permissible counter-factual scenario. Most advisers can spot flagrant breaches of Part IVA, but what about those arrangements that sail closer to the line? Is Part IVA now too restrictive?

Steve Lutz CTA and Cameron Blackwood CTA

Following on from the plenary sessions, which will look at the Part IVA issues facing SMEs and the areas attracting the commissioner’s attention, a panel of anti-avoidance experts, including members of the General Anti-Avoidance Review Panel, will discuss and debate the current state of play and the future direction of anti-avoidance in Australia.

Facilitated by Steve Lutz CTA (Lutz & Associates), the panel will comprises Cameron Blackwood CTA (Greenwoods & Herbert Smith Freehills), Martin Jacobs (ATO), Fiona Knight CTA (ATO), and Professor Robert Deutsch CTA (The Tax Institute).

A particular focus of the panel will be on what, if any, further changes need to be made to Part IVA to improve certainty for taxpayers. 

Now in its eighth year, the Private Business Tax Retreat program has been designed to deliver the most up-to-date thinking on many of the private client advisers’ most common tools in trade and to bring to light emerging trends which may impact them.

Covering trusts, Div 7A, the small business restructure roll-over in practice, corporate and commercial issues, and offering ATO perspectives, the purpose of the retreat is to not only deliver new thinking around daily adviser issues, but also to provide practical take-outs for common client circumstances, issues and objectives.

You can find out more on our website about these sessions and the rest of the program.

Please join us on 31 May–1 June at the Palazzo Versace on the Gold Coast.

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