Taxation and Realisation Costs in Financial Property Settlements

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In any property dispute or financial settlement, it is very important to remember that inherent taxes and realisation costs are not necessarily taken up by the Court and deducted from the pool of assets.

For example, if you own three investment properties and want to retain those investment properties as part of your settlement then you will not be able to deduct any capital gains tax from the pool of the matrimonial assets. This is because, the Family Court has made it clear that unless the tax or realisation costs must necessarily be incurred as part of the settlement then such costs will not be deducted from the pool of assets.

This can have major ramifications for clients who believe during settlement negotiations that the other party and/or the Court will always deduct the capital gains tax.

A similar situation can apply to the retained earnings within a company. If a dividend has not yet been declared at the time of settlement or at the Trial then the value of the shares in that company may be valued on a basis that it will not take up future tax upon declaration of dividends or future winding up of the company.

The Crucial First Step of Property Settlement

It is important to remember that the first step in any property settlement is a crucial one. That step involves identifying and valuing all of the assets and financial resources of each of the parties at the current date. Part of that exercise always involves identifying liabilities including tax liabilities and other debts of the parties.

A good Specialist Family Law Solicitor will always look to identify hidden taxes and realisation costs that may exist within a pool of assets at an early stage. This then will allow the client to work with their solicitor and also their accountant or financial advisor to look at what can be done to structure their settlement in such a way that provides the best outcome for them.

About the author

Brett Hartley

Accredited Family Law Specialist

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