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Commercial | Tax

This large category spans such areas as general corporate and contractual advice, large mergers and acquisitions, tax advice, non-litigious employment law advice and sales of businesses, both large and small. Claims arising out the commercial/corporate area typically account for 20-30 per cent of LPLC’s total claims cost in a given year.

Legal work in this area often relates to high value transactions, meaning that claims can be large. Retainers are frequently complex and subject to change.

Tax issues can arise in nearly all areas of practice. We often see claims where a practitioner without sufficient experience or expertise has given incorrect advice on a tax issue. In a number of other cases, the practitioner simply failed to realise there was a tax issue that needed to be addressed. Claims relating to GST are dealt with under a separate GST section.

LPLC have many resources intended to help practitioners understand the risks attaching to the different types of work that fall under this broad category. Please choose a resource from the menu.


 

12 December 2017

In Check Issue 77 | December 2017

Thorne v Kennedy on financial agreements The recent High Court case of Thorne v Kennedy [2017] HCA 49 further illustrates why family law financial agreements are fraught with risk. In that case, Kiefel CJ, Bell, Gageler, Keane and Edelman JJ held two substantially identical financial agreements voidable due to undue influence and unconscionable conduct. Nettle […]

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27 September 2017

In Check Issue 76 | September 2017

Table of contentsJustin Toohey – new LPLC CEOPEXA newsChanges to the Administration and Probate Act 1958 (Vic)Powers of attorney amendmentsEnergy efficiency disclosure threshold changesLPLC goes socialRisk Management SeminarsWhat’s new on LPLC websiteChanging your email address? Justin Toohey – new LPLC CEO LPLC is pleased to announce that Justin Toohey has been appointed as Chief Executive […]

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1 July 2017

Risk and GST

Have you correctly dealt with GST issues? LPLC regularly receives notifications where failing to correctly deal with GST issues gives rise to a claim. Most GST claims occur in relation to the sale of commercial or new residential land or the sale of businesses, but claims have also arisen involving the preparation of leases as […]

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28 June 2017

In Check Issue 75 | June 2017

Table of contentsCGT withholding regime important changes from 1 JulyCyber security – focus your attentionChecklistsCommon GST questionsRisk Management SeminarsLaw Institute Journal articlesChanging your email address? CGT withholding regime important changes from 1 July From 1 July 2017 some CGT withholding regime requirements will change.  They are: lowering the price threshold for real property to $750,000 […]

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1 March 2017

When tax needs to be raised

Do you help your clients make informed choices about tax issues? Every year the Legal Practitioners’ Liability Committee receives notice of claims where one of the issues was the alleged failure by a practitioner to raise tax issues with the client. Family law In one claim a practitioner acted for a husband in a matrimonial […]

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6 November 2016

CGT withholding payments – practical examples

Updated July 2017 Table of contentsIntroductionTaxable Australian real property acquired directly from registered proprietor(s)LeasesIndirect Australian real property interestsOther issuesDeceased estates and trustsGSTFurther information on the ATO website Introduction This bulletin contains practical examples of how the withholding requirements, which commenced 1 July 2016 and were amended with effect from 1 July 2017, work. For more […]

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6 July 2016

Amended CGT withholding payments for options, company title interests and indirect Australian real property transactions

Updated July 2017 Table of contentsIntroductionOptions and rights to acquireCompany title interestsIndirect Australian real property interestNon-portfolio interest testPrincipal asset testResidency declarationsMembership interest declarations Introduction This bulletin contains information on the withholding requirements which commenced on 1 July 2016 as amended in June 2017 by the Treasury Laws Amendment (Foreign Resident Capital Gains Withholding Payments) Act […]

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2 June 2016

1 July 2017 amended CGT withholding payments for real property sales

Updated July 2017 Table of contentsKey pointsIntroductionBackgroundKey obligationsExceptionsAssets which are caughtMarket valueWhat to do when acting for a vendorWhat to do when acting for a purchaserATO forms and information Key points Amended withholding requirements for contracts of sale of real estate worth $750,000 or more from 1 July 2017. All purchasers of such real estate […]

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11 September 2013

Land Leases and the PPS Act

Table of contents1.  Introduction2.  Personal PropertyBeware!3.  Acting for the landlordBeware!Beware!4.  Lease document5.  Acting for the tenant6.  The retainer 1.  Introduction Practitioners for both landlords and tenants need to understand that the Personal Property Securities Act 2009 (Cth) (PPS Act) may apply to the lease of premises because: Sometimes a landlord of premises also leases goods […]

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11 September 2013

Sale of Land and the PPS Act

Table of contents1.  Introduction2.  Personal Property3.  Acting for the vendorBeware!Beware!4.  Contract of sale of real estate5.  Acting for the purchaser6.  Retainer 1.  Introduction Practitioners for both vendors and purchasers need to understand that the Personal Property Securities Act 2009 (Cth) (PPS Act) may apply to a contract of sale of land because: Sometimes a vendor […]

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15 December 2017

Clearance certificate questions keep coming

LPLC receives enquiries most weeks about the Federal Government foreign residents withholding regime with many practitioners being referred to the following three LPLC bulletins for the answers to their questions. 1 July 2017 amended CGT withholding payments for real property sales Amended CGT withholding payments for options, company title interests and indirect Australian real property […]

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9 June 2017

Practitioners beware – CGT threshold $750,000 from 1 July 2017

In mid 2016 LPLC published three bulletins about the foreign residents capital gains withholding payments regime. All three bulletins are currently being amended to take into account the changes introduced in the Federal budget on 9 May 2017. The amended bulletins will be published once the amendments are law. You can find all LPLC bulletins […]

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23 February 2017

Contractual rights to be unenforceable when linked to insolvency events

The insolvency regime in the Corporations Act 2001 (Cwlth) has been amended to restrict the rights of parties to enforce ipso facto clauses in contracts. These clauses typically allow a party to terminate or exercise other contractual rights if the counterparty enters into an insolvency. The amendments are intended to protect financially distressed businesses dependent […]

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3 February 2017

It’s just a transfer of land

Some clients might think preparing a transfer of land from a trustee to a beneficiary, between spouses and/or between related corporate entities should be a simple and cheap job. Experienced practitioners know these sorts of transfers are anything but simple and should be treated no differently to an arm’s length conveyance. One practitioner recently told […]

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16 December 2016

Trusts and family farm transfers

LPLC has recently received claims from practitioners who acted in the transfer of family farms to trustees where the transactions were not exempt from stamp duty. Section 56 of the Duties Act 2000 (Vic) (the Act) sets out the conditions to be met for a transfer of a family farm to be exempt from stamp […]

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3 February 2017

Key Risk Checklist: Tax issues

This checklist contains the most common taxes and related charges and is not intended to be exhaustive. Ticking a box indicates who is responsible for considering the selected item. Both practitioner and client may be selected. A column has been included for initial comments. It is recommended that a memorandum be sent to the client […]

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23 November 2016

Key Risk Checklist: GST

GST is not simple but there are some simple steps you can take to help protect you and your clients. References to divisions and sections can be found in A New Tax System (Goods and Services Tax) Act 1999 (Cwlth) Input taxed supplies ☐  Is the supply wholly input taxed? No GST payable where the […]

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23 July 2014

Key Risk Checklist: Small business – when acting for the purchaser

When acting for the purchaser ☐  When asked to advise just on the contract documentation before the purchaser signs the contract, recommend that all relevant searches be done before the contract is signed. ☐  Check that your client has a Section 52 Statement and has had the figures reviewed by an accountant. ☐  Advise your […]

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23 July 2014

Key Risk Checklist: Small business – when acting for the vendor

When acting for the vendor ☐  Advise your client that the failure to give the purchaser a Section 52 Statement may allow the purchaser to avoid the contract. Confirm this advice in writing (see Appendix 2 of LPLC’s Small Business – Big Risks practice risk guide for suggested letter). ☐  Explain that the business operating […]

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6 November 2017

Looking after leases

Table of contentsIntroductionThe best risk managementThe problem areasPPS ActRetail leases and essential safety measuresLPLC Tenant’s Practitioner ChecklistLPLC Landlord’s Practitioner ChecklistAppendix OneAppendix Two Introduction Looking after leases contains details of claims, relevant cases and legislation affecting retail leases. It is designed to raise your awareness of common problems in commercial and retail lease transactions, and help you […]

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26 September 2017

Small business big risk

Table of contentsIntroductionThe challengesThe most common mistakesPersonal Property SecurityLPLC Small Business ChecklistAppendix OneAppendix Two Introduction Since LPLC published the first edition of Small business – big risk there have been some changes in the legal landscape which are particularly relevant to transactions for the sale of small businesses including the introduction of: the Estate Agents (General, Accounts […]

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11 May 2017

Know your limits

Table of contentsIntroductionLessons from the claimsTime limits most commonly missedClaims examples Introduction With the proliferation of time limits in legislation today missing limitation dates is a mistake that occurs in many areas of the law. The reasons for missing time limits are varied as are the potential repercussions. Sometimes it is a lack of knowledge […]

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13 September 2016

Saving superannuation claims

Table of contentsIntroductionCommon themesSuperannuation related claims from 1 July 2011 to 30 June 2015Areas of lawSuperannuation ChecklistAppendix One Introduction LPLC has seen numerous claims against practitioners involving superannuation funds. Claims sometimes arise because the practitioner does not have sufficient knowledge or experience with superannuation matters. Practitioners who regularly act in this area will agree that […]

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20 January 2015

Commercial litigation – stay alert

Table of contentsIntroductionThe causes of claimsCommon problemsOther risksLPLC Commercial Litigation Checklist Introduction Managing the client’s expectations during litigation is the key to containing risks in this area. Commercial litigation – stay alert provides examples of how things can go wrong in commercial litigation and how practitioners can minimise the risk of a claim. The relationship […]

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