Insolvency: calling in the undertakers: income tax, CGT, GST and stamp duty aspects

Direct taxation of persons who receive distributions of surplus assets in the liquidation of Australian companies occurs under either the deemed dividends or capital gains regimes. Section 47 of the Income Tax Assessment Act 1936 (Cth) has deemed dividends for income taxation for over 80 years and the regime contains many anomalies. High Court judgments have attributed a questionable 'character' to liquidation distributions, as a response to the Act's exclusion of (once) tax-free, 'capital' amounts. Division 7A applies to liquidation distributions in quite limited circumstances. The Income Tax Assessment Act 1997 (Cth) capital gains regime better reflects the general law nature of liquidation surpluses and does so with fewer fictions. The main e ect of GST on corporate insolvency, by contrast, concerns debt recovery. Positions of the Australian Taxation O ice ('the ATO') and other creditors must be equalised when debts are released subsequent to the payment of imputation tax credits by the ATO. Stamp duty is not payable on commencement of liquidation in any Australian jurisdiction. However, only South Australia exempts distributions of dutiable property made by liquidators to the shareholders of liquidating companies.