Subdiv EA and Beyond. Subdiv EA had been pretty much forgotten. Ever since the ATO issued its weapon of mass destruction in the form of TR 2010/3.
Subdiv EA and Beyond
In this episode, you will walk through seven questions with Andrew Henshaw of Velocity Legal in Melbourne about Subdiv EA and beyond – questions we didn’t have time to discuss in the last two episodes, 435 and 436. Please listen to these episodes first if you haven’t already.
Here’s what we learned, but please listen as Andrew explains it all much better than we ever could.
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Subdiv EA Had Been Forgotten
Until recently, you probably hadn’t heard much about Subdiv EA. And that is because TD 2022/11 (previously TR 2010/3) made it redundant.
If every UPE to a private company is financial accommodation, as TD 2022/11 claims, then it doesn’t matter where the money went.
Remember that Subdiv EA only jumps into action if there is a UPE to a private company, and the money goes to the shareholder of that private company or their associates.
But if TD 2022/11 makes every UPE an issue, you don’t need to worry about the nuances in EA unless you have a pre-2009 UPE or a sub-trust arrangement.
But now the Bendel Case puts the ATO’s position into question.
Full Federal Court
We all got excited when the Full Federal Court in Commissioner of Taxation v Bendel [2025] FCAFC 15 ruled in Mr Bendel’s favour on 19 February 2025. But of course, you already know that even without TD 2022/11, we would still have Subdiv EA and s100A to contend with.
High Court
The ATO filed for special leave on 18 March 2025, the very last day they could have. Up to now (April 29, 2025), the High Court hasn’t granted leave, but that can change at any moment.
So, the Bendel Case is not finished yet. The ATO hasn’t given up yet. It is off to the High Court.
Please listen to the episode. We haven’t covered anything here that we discussed in the episode.
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