Tax Alert - ATO appeals to High Court in the Bendel Case decision

Lowe Lippmann Chartered Accountants

ATO appeals to High Court in the Bendel Case decision


The Australian Taxation Office (ATO) has now applied to the High Court for special leave to appeal the Full Federal Court’s decision in FCT v Bendel [2025] FCAFC 15.

 

Last month, we released a Tax Alert (see here) after the Federal Court delivered their unanimous decision that an unpaid present entitlement (or UPE) owed by a discretionary trust to a corporate beneficiary is not a “loan” for Division 7A purposes.

 

The ATO has also issued an Interim Decision Impact Statement (DIS) in response to the Full Federal Court decision. A DIS provides information for taxpayers and advisers, and includes: details of the case, a brief summary of facts, issues decided by the court or tribunal, and relevant legislation and case law.


What is the ATO’s current view?


The ATO view can be summarised as follows:

  • Will continue to administer the tax rules in their current form (ie. treating UPEs as loans for Division 7A purposes) until the outcome of the appeal process is known.
  • Will hold off processing amendments, private rulings and objections relating to this issue until the appeal process is finalised.
  • Regardless of the new interpretation by the Full Federal Court, the reimbursement agreement rules in section 100A will continue to be considered, and this decision does not change the potential for exposure to Subdivision EA (ie. a trust makes a UPE to corporate beneficiary, and then the trust makes a payment or loan, to the shareholders or associates of the corporate beneficiary).

What can we do now?


Unfortunately, the way forward in the short term is unclear until we see how the appeal process moves to, and through, the High Court.


Again, there is an element of having to “wait and see” what happens next. We will continue to keep you updated on all future developments.



Please do not hesitate to contact your Lowe Lippmann Relationship Partner if you wish to discuss any of these matters further.

Liability limited by a scheme approved under Professional Standards Legislation


April 12, 2026
Know when a new logbook is required Keeping a car logbook may be required to accurately calculate the business-use percentage of vehicle expenses (ie. fuel, registration, insurance and depreciation) for tax deductions. Taxpayers can keep the same logbook for their car for five years, but there are circumstances where they may need a new one during that period. Relying on a logbook that no longer represents a client's work-related travel may result in them claiming more, or less, than they are entitled to. A new logbook may be required when a taxpayer: moves to a new house or workplace — updating their residential or work address may then be necessary; or has changes to their pattern of use of the car for work purposes — checking that they are still doing the same role and routine may then be necessary. Taxpayers using the logbook method for two or more cars need to keep a logbook for each car and make sure they cover the same period. Clients who purchase a new car during the income year and want to continue relying on their previous car's logbook must make a nomination in writing. The nomination must be made before they lodge their tax return and state: they are replacing their original car with a new car; and the date that nomination takes effect. Taxpayers should remember that, if their employer provides them with a car or they salary sacrifice a car using a novated lease, they are not entitled to claim work-related car expenses using the logbook or cents per kilometre method, as they do not own the car. When claiming car expenses using the logbook method, taxpayers also need to keep various types of other records, including (among other things) odometer records for the start and end of the period they own the car, proof of purchase price, decline in value calculations, and fuel and oil receipts (or records of a reasonable estimate of these expenses based on odometer readings).
March 2, 2026
$20,000 instant asset write-off extended The Government recently passed legislation to extend the $20,000 instant asset write-off for small businesses by 12 months to 30 June 2026. Taxpayers should note that if their business has an aggregated annual turnover of less than $10 million, they may be able to use the instant asset write-off ( IAWO ) to immediately deduct the business portion of the cost of eligible assets which cost less than $20,000. Eligible assets must basically have been first used (or installed ready for use) between 1 July 2025 and 30 June 2026. The $20,000 limit applies on a per asset basis, so taxpayers can instantly write-off multiple assets. The IAWO can be used for both new and second-hand assets (but some exclusions and limits apply).
February 26, 2026
2026 FBT Year End is Fast Approaching! The end of the Fringe Benefits Tax ( FBT ) year is fast approaching on 31 March 2026, so we take this opportunity to revisit some hot FBT topics for both employers and employees, including: FBT exemption for electric cars Overlooking or misreporting FBT on private use of work vehicles Does FBT apply to your contractors? Reducing the FBT record keeping burden Mismatched claims for entertainment Employee contributions by journal entry in the accounts Not lodging FBT returns FBT housekeeping
More Posts