Trusts other than unit trusts will be considered Australian residents in any given income year if either:
- a trustee of the trust estate was a resident at any time during the income year
- the central management and control of the trust estate was in Australia at any time during the income year.
Unit trusts will be an Australian resident unit trust if at any time during the income year they meet one of the requirements in the first column and one of the requirements in the second column of the following table:
Table: Unit trust residency requirement
|One of these requirements was satisfied:
||And also one of these:
Any property of the unit trust was situated in Australia.
The central management and control of the unit trust was in Australia.
The trustee of the unit trust carried on a business in Australia.
One or more Australian residents held more than 50% of the beneficial interests in the income or property of the trust.
The concept of ‘property’ is broad and is not restricted to tangible property. It may include items such as trading stock, cash, and software.
Unlike other trust estates, the residency status of the trustee of a unit trust is irrelevant. In addition, although the fact of central management and control in Australia is sufficient to categorise a trust estate as a resident, it is not sufficient to categorise a unit trust as a resident.
Corporate unit trusts and public trading trusts will be residents if they are resident unit trusts under the criteria outlined in the table above.
The residency of a unit trust for capital gains tax (CGT) purposes is outlined in section 995-1 of the Income Tax Assessment Act 1997. It is essentially the same criteria as described in the table above.
ATO Interpretative Decision ATO ID 2002/46 Residency status of a foreign company
Subsection 95(2) of the Income Tax Assessment Act 1936
Section 102H of the Income Tax Assessment Act 1936
Section 102Q of the Income Tax Assessment Act 1936
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