This section contains information on the general guidelines for the attribution of income and assets of private trusts and private companies from 1 January 2002.
A company [3] is a designated private company [3] if:
Once it has been determined that the company is a designated private company, then the issue of who controls the assets and income of the company and the percentage of control [3] to be attributed to the individual(s) can be decided.
More ? [4]
Non-designated private companies are assessed under the pre 1 January 2002 private company rules.
More ? [5]
Assessing the Income & Assets from Private Companies pre 01/01/2002
Section 10.3.3 [9]
Legislation Library - Commission Determinations
Means Test Treatment of Private Companies – Excluded Companies – Declaration 2001 [10]
Company has the same meaning as in the Income Tax Assessment Act 1997.
According to Section 52ZZA of the VEA, a company is a designated private company at a particular time if the company:
gross operating revenue is less than $25 million;
gross assets at the end of the financial year are less than $12.5 million;
the company has fewer than 50 employees at the end of the financial year, or
and the company is not an excluded company [3].
Financial year, in relation to a company, means:
Commission may determine in writing that a company having been included in a specified class of companies is a declared private company for the purposes of section 52ZZA [12] of the VEA and is therefore a DPC [3].
An excluded company is a company declared in writing by Commission to be excluded from the private trust and company provisions.
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
A trust is a designated private trust unless:
Once it has been determined that the trust is a designated private trust, then the issue of who controls the assets and income of the trust and the percentage of control [3] to be attributed to the individual(s) can be decided
More ? [16]
Legislation Library – Commission Determinations
Means Means Test Treatment of Private Companies – Excluded Companies – Declaration 2001 [10]
Units in relation to a trust, include a beneficial interest, however described, in the property or income of the trust.
A scheme means:
A fund is a complying superannuation fund for the purposes of section 52ZZB of the VEA [12], at a particular time if:
http://www.comlaw.gov.au/Series/C2004A04633 [22]
http://www.comlaw.gov.au/Series/C1936A00027 [23]
An excluded trust is a trust declared in writing by Commission to be excluded from the private trust and company provisions.
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
A company [3] is a controlled private company [3] in relation to an individual if:
When deciding whether an individual passes the control [3] or source tests reference must be had to the associates [3] of the individual.
More ? [25]
The control test, in conjunction with the associates rule, is used to determine the level of control [3] a stakeholder exercises in relation to a designated private company. Effective control of a private company generally rests with those persons who hold voting powers or governing director powers. This reflects the absolute power held by these people as they can retain profits within the structure, or reduce or eliminate profits by paying themselves higher wages or directors fees. They can also issue more shares to themselves, thus diluting the voting power of minority shareholdings. Control can rest with one person, a couple, or multiple stakeholders.
VEA ? [26]
The legislation includes the following criteria:
Where a person fails to pass any of the above criteria, the company will not be a controlled private company with respect to that individual. If no individual in respect of a designated private company meets any of the above criteria, no attribution percentage [3] can therefore be made to any person (whether receiving Income Support payments or not). The asset and income assessment should then default to the net asset backing method [3] of assessment that applied prior to 1 January 2002.
However where one or more individuals is exerting control over a company, non-controlling minority shareholders should not be held to be attributable stakeholders [3] of the company. Therefore no asset value should be maintained against them, unless the pensioner qualifies as a genuine investor [3] in which case these provisions should apply.
More ? [27]
A company consisting of 100 issued ordinary shares has 10 shareholders holding 10 shares each. None of the shareholders are associates and no individual has governing director type powers, nor are they able to exert control [3] over the company in any other way. In this instance, none of the above factors for establishing whether a private company is a controlled private company with respect to an individual have been satisfied. Therefore if any of these shareholders were to claim payment, the company would not be a controlled private company in respect to any individual and policy would then apply to assess the shareholder under the net asset backing method [3] rules.
Company has the same meaning as in the Income Tax Assessment Act 1997.
According to section 52ZZC of the VEA, a company is a controlled private company in relation to an individual if the company is a designated private company and the individual passes either the:
According to Section 52ZZA of the VEA, a company is a designated private company at a particular time if the company:
gross operating revenue is less than $25 million;
gross assets at the end of the financial year are less than $12.5 million;
the company has fewer than 50 employees at the end of the financial year, or
and the company is not an excluded company [3].
There are two control tests, one is in relation to private trusts and the other one is in relation to private companies.
Control test (private companies)
An individual passes the control test in relation to a company if:
Control test (private trusts)
According to section 52ZZH(2) of the VEA, an individual passes the control test in relation to a trust if:
An individual passes the source test in relation to a trust or company if:
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
An associate of an individual for the purposes of private trusts and private companies has the meaning given by section 52ZQ of the VEA [12].
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
At a particular time, an entity holds a direct voting interest in a company equal to the percentage of the voting power in the company in which the entity holds an interest at that time. Where multiple entities are involved, the calculation of direct voting interest should be made with reference to the formula in subsection 52ZZD(2) [34] of the VEA.
Company has the same meaning as in the Income Tax Assessment Act 1997.
For the purposes of Part IIIB, Division 11A (means test treatment of private companies and private trusts), a company is sufficiently influenced by an entity or entities if the company, or its directors:
to act in accordance with the directions, instructions or wishes of the entity or entities.
An associate of an individual for the purposes of private trusts and private companies has the meaning given by section 52ZQ of the VEA [12].
Attribution percentage is the percentage of income or assets in the private trust or company that will be taken to be the income and assets of the pensioner for the purpose of the income and assets tests. This only applies if the pensioner (or spouse) is determined to be a controller of the private trust or company.
The net asset backing method provides the least complex and consistent basis for assessing the value of private companies. The method values the shares in a private company by calculating the:
The calculation is based upon information in the company balance sheet and depreciation schedule taking into consideration the current market value rather than the historical value as may appear in the balance sheet.
According to section 52ZZJ of the VEA [12], a person is an attributable stakeholder if a company or trust is a controlled private company or trust in relation to the individual unless the Commission determines otherwise.
An individual will be treated as a genuine investor in a private company where:
A genuine injection of capital in return for equity in a private trust can only occur where the trust is a fixed trust, and the person obtains units [3] in return for the injection of capital. Genuine investors have the historical value of the injected equity capital assessed as their asset.
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
The net asset backing method provides the least complex and consistent basis for assessing the value of private companies. The method values the shares in a private company by calculating the:
The calculation is based upon information in the company balance sheet and depreciation schedule taking into consideration the current market value rather than the historical value as may appear in the balance sheet.
A trust is a controlled private trust [3] in relation to an individual if:
When deciding whether an individual passes the control [3] or source tests reference must be had to the associates [3] of the individual.
More ? [36]
The control test, in conjunction with the associates [3] rule, is used to determine the level of control [3] a stakeholder exercises in relation to a designated private trust. Although a trustee [3] often undertakes the day to day management of a trust, effective control of a trust generally rests with the person(s) who can:
The person with the above power is commonly known as the appointor [3], or alternatively the principal or guardian. In the event that the trust does not have an appointor, or the trust deed does not provide the appointor with these powers, it may be that the trustee has effective control of the trust. Control can rest with one person, a couple, or multiple stakeholders. While being an appointor or trustee is a strong indicator that control of the trust may rest with that person, all factors relating to control are considered before a decision regarding the attribution of assets [3] of a trust is made.
VEA ? [37]
Factors considered when establishing who has control over a private trust when determining the attribution percentages of stakeholder(s) are:
More ? [38]
George, aged 59, sets up a discretionary family trust with himself as appointor. The trust's assets consist of a $600,000 investment portfolio and the family home, which is worth $120,000. George appoints his son David as trustee, assured that he retains control via his power to unilaterally veto David's decisions or to replace David as trustee. George receives annual distributions from the trust at a level decided by him. Other trust income is officially distributed to children and grandchildren, however in reality George pays any taxation liability on behalf of his family and either unofficially retains the distributions or arranges for the distributions to be officially returned to the trust as a 'loan'. Under the control test [3], George would be attributed with the trust assets and income and would not have entitlement to an income support payment.
Attributable stakeholder, asset and income attribution percentage
Section 52ZZJ [30] VEA
According to section 52ZZH of the VEA, a trust is a controlled private trust in relation to an individual if the company is a designated private trust and the individual passes either the:
According to section 52ZZB of the VEA, a trust is a designated private trust unless:
the following conditions are satisfied, that is the trust:
units [3] are held by 50 or more persons, and
the trust was not created, continued in existence or operated under a scheme that was entered into or carried out for the sole or dominant purpose of enabling any individual/s to avoid Division 11A (means test of private companies and private trusts), section 52ZZB of the VEA or the equivalent section of the Social Security Act, or
There are two control tests, one is in relation to private trusts and the other one is in relation to private companies.
Control test (private companies)
An individual passes the control test in relation to a company if:
Control test (private trusts)
According to section 52ZZH(2) of the VEA, an individual passes the control test in relation to a trust if:
An individual passes the source test in relation to a trust or company if:
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
An associate of an individual for the purposes of private trusts and private companies has the meaning given by section 52ZQ of the VEA [12].
An associate of an individual for the purposes of private trusts and private companies has the meaning given by section 52ZQ of the VEA [12].
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [12], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [12], trustee has the same meaning as in the Income Tax Assessment Act 1997 [43].
Most private trusts have a person/s in the position of appointor, who have the power to:
According to section 52ZR of the VEA [34], if at a particular time on or after 1 January 2002:
there is to be included in the value of the individual's assets an amount equal to the individual's asset attribution percentage of the value of the asset owned by the trust or company.
An entity means any of the following:
an individual,
a company,
a trust,
a business partnership,
a corporation sole,
a body politic.
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [12], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [12], trustee has the same meaning as in the Income Tax Assessment Act 1997 [43].
A scheme means:
There are two control tests, one is in relation to private trusts and the other one is in relation to private companies.
Control test (private companies)
An individual passes the control test in relation to a company if:
Control test (private trusts)
According to section 52ZZH(2) of the VEA, an individual passes the control test in relation to a trust if:
The source test [3] in relation to a controlled private trust [3] and a controlled private company [3] is to be applied where:
However, a person could refer to the source of capital that was placed in a structure before 7.30pm 9 May 2000, if they wished to demonstrate that attribution percentage [3] was unreasonable.
The source test recognises that persons who transfer assets to a structure generally retain some means of control [3]. Taking the origins of the assets into account complements and strengthens the attribution process and circumvents potential avoidance mechanisms.
It is not the intention that the source test be absolute. Whether or not a person who has placed assets in an entity is attributed those assets will depend on the circumstances of the case. Where the matter is unclear, issues such as the level of contributions made and whether the person who made the contribution can exhibit control will need to be investigated. If a person can show that a genuine gift or genuine loan has been made to a private trust or private company, and that they have no on-going involvement in the structure, attribution would generally not be made to that person.
More ? [46]
George, aged 54, has decided to set up a family trust. The assets of the trust will consist of George's investment portfolio and holiday house worth $600,000. The family home worth $150,000 will also be part of the trust assets. He attends an investment seminar in June 2000 and learns that from 1 January 2002 he may be attributed with the assets and income of the trust, which will make him ineligible for a Service Pension when he turns 60. He seeks to circumvent the new rules by setting up the trust with his son David as the appointor.
David undertakes to act in accordance with George's wishes and agrees that George will be the unofficial beneficiary of the trust income. While George trusts his son he decides to keep substantial assets out of the trust. These assets are used as an additional incentive for David to acquiesce ie they will eventually become David's if he abides by their agreement. (In fact George could also be considered to be in control via the associates [3] rule). Under the source test, George will still be attributed with the trust assets and income and would not have an entitlement to pension.
More ? [47]
An individual passes the source test in relation to a trust or company if:
According to section 52ZZH of the VEA, a trust is a controlled private trust in relation to an individual if the company is a designated private trust and the individual passes either the:
According to section 52ZZC of the VEA, a company is a controlled private company in relation to an individual if the company is a designated private company and the individual passes either the:
For adequate financial consideration to be received when disposing of an asset [3], a person must receive value in the form of money or assets. Adequate financial consideration can be accepted when the amounts received reasonably equate to the market value of the asset. It may be necessary to obtain a valuation from a property valuation service provider.
When disposing of income [3], in order for adequate financial consideration to be received, the person must receive money, goods or services which approximate in value to the rate of disposed income. If a person disposes of an income producing asset and receives adequate financial consideration in money or money's worth for the asset, then it can be accepted that they have received adequate financial consideration for the disposal of both the income and the asset.
Attribution percentage is the percentage of income or assets in the private trust or company that will be taken to be the income and assets of the pensioner for the purpose of the income and assets tests. This only applies if the pensioner (or spouse) is determined to be a controller of the private trust or company.
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
An associate of an individual for the purposes of private trusts and private companies has the meaning given by section 52ZQ of the VEA [12].
VEA ? [54]
Control [3] of the assets [3] and income [3] of a designated private trust [3] or a designated private company [3] may be established by looking at the level of informal control that individuals or members of a couple [3] hold through their associates [3]. An associate is a person(s) or entity(s) who could be expected to act in accordance with the individual's or couple's wishes.
Associates of an individual may include:
The fact that a person is identified as an associate does not mean that they would automatically be attributed with the assets or income of the entity. If a person was not the source of the structure's funds, or in control [3] of the structure, and had never received any benefit from the structure, they would not be attributed with control. If a person can show that a genuine gift or a genuine loan has been made to a private trust or private company, the associates rule will not apply. Nor will the associates rule apply if a person genuinely resigns their involvement in a controlled private trust or private company.
More ? [55]
10.3.10/Non-recognised Liabilities of a Controlled Private Company or Trust [57]
10.3.10/Recognised Liabilities of a Controlled Private Company or Trust [58]
10.3.11/Gifting to a Private Trust or Company [50]
10.3.14/Resignation from a Controlled Private Trust or Company on or after 1 January 2002 [59]
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
An asset means any property, including property outside Australia.
According to section 5H of the VEA [61] income is:
According to section 52ZZB of the VEA, a trust is a designated private trust unless:
the following conditions are satisfied, that is the trust:
units [3] are held by 50 or more persons, and
the trust was not created, continued in existence or operated under a scheme that was entered into or carried out for the sole or dominant purpose of enabling any individual/s to avoid Division 11A (means test of private companies and private trusts), section 52ZZB of the VEA or the equivalent section of the Social Security Act, or
According to Section 52ZZA of the VEA, a company is a designated private company at a particular time if the company:
gross operating revenue is less than $25 million;
gross assets at the end of the financial year are less than $12.5 million;
the company has fewer than 50 employees at the end of the financial year, or
and the company is not an excluded company [3].
According to Section 5E(2) [34]of the VEA [34]a person is a member of a couple, if they are:
The term “partnered” is also commonly used.
An associate of an individual for the purposes of private trusts and private companies has the meaning given by section 52ZQ of the VEA [12].
A relative for the purpose of Part IIIB, Division 11A (means test treatment of private companies and private trusts), in relation to a person, has the meaning given by section 52ZP of the VEA [12].
An entity means any of the following:
an individual,
a company,
a trust,
a business partnership,
a corporation sole,
a body politic.
Commission may determine in writing that an entity having been included in a specified class of entities is a declared associate of an individual for the purposes of section 52ZQ of the VEA [12].
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [12], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [12], trustee has the same meaning as in the Income Tax Assessment Act 1997 [43].
Company has the same meaning as in the Income Tax Assessment Act 1997.
For the purposes of Part IIIB, Division 11A (means test treatment of private companies and private trusts), a company is sufficiently influenced by an entity or entities if the company, or its directors:
to act in accordance with the directions, instructions or wishes of the entity or entities.
For the purposes of Part IIIB, Division 11A (means test treatment of private companies and private trusts), an entity or entities hold a majority voting interest in a company if:
the entity or entities are in a position to cast, or
control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the company.
Control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
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[10] https://clik.dva.gov.au/legislation-library
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[21] https://clik.dva.gov.au/book/export/html/16475#ref-cspol_part10_ftn422
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[28] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/1036-attribution-guidelines-private-trusts-private-companies-01012002/associate-rule
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[30] https://clik.dva.gov.au/service-eligibility-assistant-updates/all-determinations-order-date-signed-oldest-most-recent/determinations-under-vea
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[33] https://clik.dva.gov.au/book/export/html/16475#ref-cspol_part10_ftn425
[34] http://www.comlaw.gov.au/Series/C2004A03268
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[41] https://clik.dva.gov.au/book/export/html/16475#ref-cspol_part10_ftn428
[42] clikpopup://DEF/Excluded%20trust
[43] http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401745?OpenDocument
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[50] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10311-assessment-capital-injection-private-trust-or-company-01012002/gifting-private-trust-or-company
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[56] https://clik.dva.gov.au/book/export/html/16475#ref-cspol_part10_ftn432
[57] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10310-liabilities-private-trust-or-company-01012002/non-recognised-liabilities-controlled-private-company-or-trust
[58] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10310-liabilities-private-trust-or-company-01012002/recognised-liabilities-controlled-private-company-or-trust
[59] https://clik.dva.gov.au/compensation-and-support-policy-library/part-10-types-income-and-assets/103-business-structures-and-trusts/10314-resignation-private-trust-or-company/resignation-controlled-private-trust-or-company-or-after-1-january-2002
[60] https://clik.dva.gov.au/book/export/html/16475#ref-cspol_part10_ftn433
[61] http://clik/health-procedure-library/health-information-and-management-notes-himn/vhc/072014-vhc-veterans-home-care