Woellner, Robin (2012) "Plutarch's Paradox" - or the case of the interminable trust. Australian Tax Review, 41 (4). pp. 203-224.

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Abstract

This article examines the decision in FCT v Clark and its implications. On appeal, the Full Federal Court held that dramatic and sudden changes to the various elements of a dormant private unit trust did not break the continuity of the trust estate required to enable the new controllers to utilise the carry-forward tax losses created under the former regime. The High Court refused special leave. The question that arises is, was the decision consistent with the policy underlying the loss carry-forward deduction, and with the courts' role as "pragmatic tax analysts"? Are the courts asking the wrong question: not whether "a" trust estate continued after the changes, but whether the "same" trust estate continued?

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