CURRICULUM VITAE MICHAEL HERAGHTY Michael is a Sydney barrister specialising in Tax, Trusts and Commercial Law. He was a Partner at law firm TressCox for 25 years in the commercial division. Michael has extensive experience in all aspects of commercial law. He brings a highly professional approach to written advice and court room advocacy. Practice Areas Tax Trusts Commercial Income Tax Company Tax Capital Gains Tax GST Land Tax Stamp Duty Payroll Tax Trusts Wills Will Disputes Estate Planning Charities Equity Appellate Business & Professional Structures Negligence Corporations Law General Commercial Mergers & Acquisitions Consumer Law & Competition
Experience as a Barrister Income Tax & Other Revenue Law Appearing for the Commissioner of Taxation before the Federal Court, Bankruptcy Division, the Administrative Appeals Tribunal and the Local Court. Appearing for the taxpayer as Junior Counsel to David McGovern SC in the Full Federal Court in Cameron v Commissioner of Taxation [2012] FCAFC 76 and in the Application for Special Leave to Appeal to the High Court of Australia. Acting for the taxpayer as Junior Counsel to Brendan Sullivan SC in the Federal Court Case of Tech Mahindra Limited v Commissioner of Taxation [2015] FCA 1082, involving the Australia/India Double Tax Agreement. Appearing for the taxpayer before the NSW Administrative Decisions Tribunal appealing against a decision of the NSW Chief Commissioner of State Revenue denying the taxpayer s claim for the Primary Production exemption from NSW land tax. Acting for the taxpayer in a dispute over payroll tax involving the Grouping provisions and the validity of a garnishee notice issued by the Office of State Revenue taking money out of the taxpayer's bank account. Acting for the taxpayer in various Payroll Tax Grouping cases. Opinions on: - GST on the assignment of small-scale technology certificates. - Stamp duty on a transfer of real estate to a new trustee of a trust. - Capital gains tax and stamp duty implications of a deed of family arrangement for a deceased estate. - GST on a major property development. - Income tax on a trust established for a disabled child. - Income tax on distributions to minors from a deceased estate. - GST on the sale of lots in a proposed property development subdivision. - Excess superannuation contributions tax. - Division 7A of the 1936 Tax Act. - Stamp duty implications of the sale of a business conducted Australia wide. - Income tax, CGT and GST implications of a gift of real estate to a discretionary trust established for a grandson. - Stamp duty exemption on the transfer of multiple real estate properties to a charity. - Tax Promoter Laws. - Stamp duty on a partition of real estate. - The income tax general anti-avoidance provision Part IVA. - Whether a client had established a primary production business from an income tax perspective. - Trust Law, Duty and CGT implications of passing farming lands to a son via an old trust. - Duty and CGT implications of a self-managed non-recourse superannuation fund.
Trusts, Wills and Estate Planning Settling precedent self-managed superannuation fund trust deed. Opinion on possible action for denial of a higher pension by a superannuation fund. Opinion on a declaration of trust pursuant to certain NSW real estate legislation. Resulting Trust Opinion in connection with a family law property settlement matter and consideration of the principles established in Kennon v Spry (2008) 238 CLR 366. Opinion on a Trust established for grandchildren. Settling precedent family discretionary trust deed. Opinion on Trustee s rights and obligations where carers of a beneficiary occupy Trust property rent free. Settling discretionary testamentary trusts. Estate planning for high net worth individuals including drafting wills, binding death benefit nominations for self-managed superannuation funds and memoranda of wishes for family trusts and generally attending to the client's estate planning requirements. Acting for a client in connection with the re-structure of his trusts in Switzerland, estate planning and dealings with the ATO regarding the Australian tax status of the client and the Swiss trusts. Commercial & Corporate Opinions on various provisions of the Foreign Acquisition and Takeovers Act, including the anti-avoidance provision in connection with a proposed acquisition of second-hand real estate in Australia by non-residents. Acting for a Plaintiff in a shareholders dispute involving a family company. Acting on the re-registration of a struck off company. Acting for a Plaintiff in connection with a failed property development. Advising on the implications of a disabled partner in connection with a partnership agreement. Acting for a Defendant in connection with the enforcement of personal guarantees by a Bank. Advising in relation to a proposed re-structure of a charity. Acting for a Defendant on the enforcement of a forgiven loan. Settling capital raising documents. Acting for a witness before ICAC. Advising on registration and deregistration of a charity. Drafting partnership agreements, unitholders' agreements, and shareholder's agreements, including buy-sell agreements to apply upon death. Advising a public company on the correct accounting treatment of future tax benefits arising from tax losses and temporary differences under the Australian Accounting Standards. Preparing Practice documents for a professional practice including a Partnership Agreement, Shareholders Agreement, a Unit Holders Agreement, a Co-Owner s agreement for the Practice Premises and Licence of Practice Goodwill Agreements.
Experience as a Solicitor Income Tax & Other Revenue Law Extensively involved in advising on capital gains tax, general income tax advice on income assessability and deductions, GST, payroll tax, including the grouping provisions, land tax, stamp duty, fringe benefits tax, superannuation guarantee charge, negotiating disputes with the Australian Taxation Office and seeking Rulings from the Australian Taxation Office. A particular area of Michael s expertise was advising in relation to the income tax and trust law implications of the establishment of charitable institutions. Michael established in the order of 30 charitable companies, trusts and incorporated associations during the period 2000-2010. Lead Partner at TressCox selected by the Australian Taxation Office (along with two other Firms) to conduct tax litigation on its behalf in the Administrative Appeals Tribunal, Supreme Court of NSW, Federal Court and High Court in NSW and the ACT during the period 2008 2010. As such, he had day to day hands on experience in tax litigation at a high level. Trusts, Wills & Probate Advised on all aspects of Trust Law. Acted for Trustee Companies, Charities, Not-For-Profit Organisations, Estates and Corporate and Private Clients in relation to Australian and overseas Trusts. He was also involved in drafting and advising on many and varied Trust Deeds, including family discretionary, unit, hybrid, charitable, fixed, asset protection, Will and corporate unit trusts. He is the main author of the TressCox Trust Precedents, which are currently licensed for use by solicitors throughout New South Wales via The Law Society of New South Wales. Advised on all aspects of superannuation including drafting accumulation and promise benefit trust deeds, amending trust deeds and advising on compliance with relevant legislation and regulations. Estate and business succession planning and trust law work primarily focused on advising high net worth individuals. This work included wills, deeds not to revoke mutual and other wills, testamentary trusts, estate proceeds trusts, asset protection trusts, special trusts for minors and children with disabilities, superannuation proceeds trusts for death benefits for minors, education trusts for children, superannuation planning for children with disabilities, estate planning for blended families, estate planning for spouses/partners with children from a previous marriage / relationship, international estate planning, advice on family provision claims, advice on challenges to wills and estate litigation generally.
Commercial & Corporate Advised a wide range of Directors of Public, Private and Not-For-Profit Companies on corporate governance issues and matters arising under the Corporations Act. Corporatisation and Privatisation of the Papua New Guinea Electricity Commission Conducted a legal due diligence of the Papua New Guinea Electricity Commission. Produced a Legal Due Diligence Report and Information Memorandum. Provided advice in relation to the proposed electricity industry regime in Papua New Guinea. Led a team of 12 lawyers in preparing the necessary documentation for the proposed corporatisation and privatisation of the Papua New Guinea Electricity Commission. Responsible for liaising with the World Bank and the drafting of numerous documents including, a Share Sale Agreement, Government Support Agreement, Assignment Deeds, Enterprise Agreement, Hydro Dam Operating and Maintenance Agreements and special legislation for the Papua New Guinea Parliament. Business & Professional Structures Advised small and large businesses, including a wide range of professionals, on business and professional structures for 34 years. Prepared documentation for partnerships, limited partnerships, companies (public, private, medical, joint venture, service and administration, charitable and limited by guarantee), incorporated associations, discretionary, unit, fixed, charitable and hybrid trusts, shareholder agreements, unit holder agreements, joint venture agreements and superannuation fund trust deeds. Doctors Michael has a particular expertise in advising doctors on their practice structures. Over a period of 34 years this involved him preparing partnership, associateship, service trust and employment agreements, advising on tax and superannuation, acting for doctors in partnership and associateship disputes and advising on the sale and purchase of medical practices. Charities Established in the order of 30 charitable companies, trusts and incorporated associations during the period 2000-2010. Mergers and Acquisitions Michael acted in numerous mergers and acquisitions across a wide range of industries over 34 years. These have involved acting for both Vendors and Purchasers in sales of businesses and shares. Precedents Former author of the chapter on Partnerships in Australian Encyclopaedia of Forms and Precedents (LexisNexis). Author of most of the TressCox Trust, Commercial and Corporate precedents, which are currently licensed for use by Solicitors throughout New South Wales via The Law Society of New South Wales. Commissioned by Australian Medical Association (NSW) Limited to prepare a series of Practice Packages for Doctors in New South Wales providing sample documentation for their practices. Commissioned by The Institute of Chartered Accountants in Australia to document their practice arrangements.
Publications Papers A critical analysis of Part IVA of the Income Tax Assessment Act 1936 - By-law paper prepared for the Master of Laws course at the University of Sydney, December 1982 Family Law & Family Trusts, February 2011 A Smorgasbord of Trust Issues - Common Problems Encountered in Practice, February 2011 Recent Developments in Stamp Duty & Payroll Tax, June 2011 Pantlin v King - Case Note, January 2012 Qantas GST Case - Case Note, November 2012 Cameron's Case - Case Note, March 2013 Unit Trend Case - Case Note, May 2013 The Effect of Part IVA of the Tax Act on Particular Arrangements, July 2013 CGT Event E4, December 2013 The Rule In Hastings-Bass, April 2014 Revisiting Detriment in Promissory Estoppel, May 2014 Case Note on Park s Case, September 2014 Case Note on the David Mandie Family Trust Case, October 2014 Case Note on the Dion Investments Case, November 2014 Dion Investments Case - Importance of the Decision, October 2015 A Toy or a Trust for your Grandchild?, October 2015 Chapters in Australian Stamp Duties Law (LexisNexis) Chapter 12 - Exempt Transfers and Conveyances Chapter 48 - Acquisition of a Business Chapter 49 - Corporate Reconstructions Chapter 53 - Stamp Duty Planning Michael Heraghty 17 November 2015