House of Representatives

Income Tax (Attribution Managed Investment Trusts - Offsets) Bill 2015

Income Tax (Attribution Managed Investment Trusts - Offsets) Act 2016

Income Tax Rates Amendment (Managed Investment Trusts) Bill 2015

Medicare Levy Amendment (Attribution Managed Investment Trusts) Bill 2015

Tax Laws Amendment (New Tax System for Managed Investment Trusts) Bill 2015

Explanatory Memorandum

(Circulated by the authority of the Minister for Small Business and Assistant Treasurer, the Hon Kelly O'Dwyer MP)

Chapter 5 - Trustee liable to pay tax

Outline of chapter

5.1 This Chapter explains circumstances in which the trustee of an attribution MIT is liable to pay tax.

Context of amendments

5.2 Trusts, including managed investment trusts, are currently taxed under the general trust provisions in Division 6 of Part III of the Income Tax Assessment Act 1936 (ITAA 1936).

5.3 Where a trust has net income to which no beneficiary is presently entitled, the trustee is liable to pay tax in relation to that amount.

5.4 If a variance occurs that results in a shortfall in the amount of net income assessed to a beneficiary who is presently entitled, the beneficiary may need to seek an amendment to their income tax return.

5.5 In addition, under Division 6, the trustee of a managed investment trust is liable to pay tax on amounts of net income referable to income of the trust to which a foreign resident beneficiary is presently entitled in some circumstances.

5.6 Under the new tax system for attribution MITs, the trustee of an attribution MIT will be liable to pay tax if a discrepancy occurs in attributing amounts of determined trust components to members in some circumstances. This will occur where, as a result of that discrepancy, the taxable income of the attribution MIT for an income year is not fully attributed to members or where amounts are attributed in a way that is inconsistent with the attribution principles.

5.7 It is appropriate to tax the trustee of an attribution MIT in these circumstances so that taxable income derived by the attribution MIT for an income year does not escape taxation - that is, where the income is not attributed to members and taxed at the member level, it should be taxed at the trust level.

5.8 In addition, the trustee of an attribution MIT will continue to be liable to pay tax on amounts attributed to a foreign resident member in some circumstances.

5.9 Finally, the Board of Taxation recommended the introduction of an arm's length income rule for managed investment trusts (including attribution MITs) to protect the integrity of the corporate tax base (Recommendation 10). Under this rule, the trustee of a managed investment trust will be liable to pay tax on non-arm's length income. The amendments to introduce an arm's length income rule for managed investment trusts are explained in Chapter 9.

Summary of new law

5.10 The trustee of an attribution MIT will be liable to pay tax where:

·
the amount of the determined member component of a particular character that relates to assessable income falls short of the member component of that character;
·
the amount of the determined member component of a particular character that relates to a tax offset exceeds the member component of that character;
·
the sum of the determined member components of a particular character that relate to assessable income attributed to members is less than the determined trust component of that character;
·
unders of a particular character that relate to assessable income are not properly carried forward; or
·
overs of a particular character that relate to a tax offset are not properly carried forward.

5.11 The trustee of an attribution MIT will also be liable to pay tax on a determined member component that has been attributed to a foreign resident member in some circumstances.

Comparison of key features of new law and current law

New law Current law
The trustee of an attribution MIT will be liable to pay tax where:

·
the amount of the determined member component of a particular character that relates to assessable income falls short of the member component of that character;
·
the amount of the determined member component of a particular character that relates to a tax offset exceeds the member component of that character;
·
the sum of the determined member components of a particular character that relate to assessable income attributed to members is less than the determined trust component of that character;
·
unders of a particular character that relate to assessable income are not properly carried forward; or
·
overs of a particular character that relate to a tax offset are not properly carried forward.

Where a trust has net income to which no beneficiary is presently entitled, the trustee is liable to pay tax in relation to that amount.

If a variance occurs that results in a shortfall in the amount of net income assessed to a beneficiary who is presently entitled, the beneficiary may need to seek an amendment to their income tax return.

The trustee of an attribution MIT will be liable to pay tax on a determined member component that has been attributed to a foreign resident member in some circumstances. The trustee of a managed investment trust is liable to pay tax on amounts of net income referable to the income of the trust to which a foreign resident beneficiary is presently entitled in some circumstances.

Detailed explanation of new law

5.12 The trustee of an attribution MIT will be liable to pay income tax on certain amounts reflecting under-attribution of income or over-attribution of tax offsets. [Schedule 1, item 1, section 276-400]

5.13 That is, the trustee may be liable to income tax where:

·
a shortfall arises in determined member component of a particular character that relates to assessable income;
·
an excess arises in determined member component of a particular character that relates to a tax offset;
·
the determined member components of a particular character that relate to assessable income is less than the determined trust component;
·
unders of a particular character that relate to assessable income are not properly carried forward;
·
overs of a particular character that relate to a tax offset are not properly carried forward; and
·
determined member components are attributed to foreign residents in some circumstances.

Shortfall in determined member component of assessable income

5.14 The trustee of the attribution MIT is liable to pay tax if the determined member component of a particular character that relates to assessable income falls short of the member component of that character. [Schedule 1, item 1, subsection 276-405(1)]

5.15 In these circumstances, the trustee is liable to pay tax on the amount of the shortfall at the top marginal tax rate (including the Medicare levy and any temporary Budget repair levies). [Schedule 1, item 1, subsection 276-405(2)]

5.16 The Income Tax Act 1986 imposes tax on the shortfall. The Income Tax Rates Act 1986 and the Medicare Levy Act 1986 specifies the rate of the shortfall tax to be the top marginal tax rate (including the Medicare levy and any temporary Budget repair levies. [Schedule 6, item 17, paragraph 251S(1)(d) of the ITAA 1936; Income Tax Rates Amendment (Managed Investment Trusts) Bill 2015, Schedule 1, items 11 and 13, subsections 12(11) and 35(1) of the Income Tax Rates Act 1986; Medicare Levy Amendment (Attribution Managed Investment Trusts) Bill 2015, Schedule 1, item 2, subsection 6(4) of the Medicare Levy Act 1986]

5.17 If there is a shortfall in the amount of assessable income attributed to a member, the amount of the shortfall will not be included in the member's assessable income. Therefore, to ensure that it is appropriately subject to tax, the trustee is liable to pay tax on the assessable income.

Excess in determined member component of a tax offset

5.18 The trustee of an attribution MIT is liable to pay tax if the determined member component of a particular character that relates to a tax offset exceeds the member component of that character. [Schedule 1, item 1, section 276-410]

5.19 In these circumstances, the trustee is liable to pay tax on the amount of the excess at a rate of 100 per cent. [Schedule 1, item 1, subsection 276-405(2)]

5.20 The Income Tax (Attribution Managed Investment Trusts - Offsets) Act 2015:

·
imposes tax on the excess; and
·
specifies the rate of the excess tax to be 100 per cent.

[Income Tax (Attribution Managed Investment Trusts - Offsets) Bill 2015, sections 3 and 4]

5.21 It is appropriate to tax the trustee on the amount of the excess at a rate of 100 per cent in these circumstances so that the revenue is not disadvantaged because the trustee of an attribution MIT attributes excess tax offsets to members. This is because tax offsets are applied to reduce the tax payable by a member, and are refundable in some circumstances. In this regard, the outcome is consistent with that which arises if a company passes out excess franking credits to shareholders and is liable to pay franking deficit tax.

5.22 If an excess amount of a tax offset is attributed to a member, the amount of the excess tax offset will be applied by the member to reduce the amount of tax that they must pay (and may give rise to a refundable tax offset). Therefore, to ensure that the revenue is not disadvantaged, the trustee is liable to pay tax amount of the excess in these circumstances.

Determined member components of assessable income less than the determined trust component

5.23 If the sum of all determined member components of a particular character that relate to assessable income of all members of an attribution MIT for an income year falls short of the determined trust component of that character of the attribution MIT for the income year, the trustee of the attribution MIT is liable to pay tax on the amount of the shortfall. [Schedule 1, item 1, subsection 276-415(1)]

5.24 In these circumstances, the trustee is liable to pay tax on the amount of the shortfall, reduced by:

·
the amount of the rounding adjustment deficit; and
·
the amount of the shortfall, if any, that is reflected in a shortfall in determined member component of assessable income which is taxed under section 276-405 of the Income Tax Assessment Act 1997 (ITAA 1997).

[Schedule 1, item 1, subsection 276-415(2)]

5.25 If shortfall tax is payable by the trustee, the rate of tax is the top marginal tax rate (including the Medicare levy and any temporary Budget repair levies). [Schedule 1, item 1, subsection 276-415(2)]

5.26 The Income Tax Act 1986 imposes tax on the shortfall. The Income Tax Rates Act 1986 and t he Medicare Levy Act 1986 specifies the rate of the shortfall tax to be the top marginal tax rate (including the Medicare levy and any temporary Budget repair levies). [Schedule 6, item 17, paragraph 251S(1)(e) of the ITAA 1936; Income Tax Rates Amendment (Managed Investment Trusts) Bill 2015, Schedule 1, items 11 and 13, subsections 12(12) and 35(1) of the Income Tax Rates Act 1986; Medicare Levy Amendment (Attribution Managed Investment Trusts) Bill 2015, Schedule 1, item 2, subsection 6(5) of the Medicare Levy Act 1986]

5.27 The determined member component of assessable income gives rise to an amount that is assessable income of a member. Therefore, if, for all members of an attribution MIT, the determined member components of assessable income of a particular character for an income year fall short of the determined trust component for that income year, the trustee is liable to pay tax on the amount of the shortfall.

5.28 It is necessary to impose tax on the trustee in these circumstances because the amount of the shortfall reflects assessable income derived by the attribution MIT which has not been attributed to members and therefore would not otherwise be subject to tax.

5.29 If the member component or the determined member component is of a character that is a discount capital gain, then, for the purposes of working out the amount that the trustee is liable to pay income tax on, the amount of the component is doubled. This ensures that the trustee is liable to pay income tax on the component as though it were not a discount capital gain. [Schedule 1, item 1, subsections 276-415(3) and (4)]

Unders of assessable income not properly carried forward

5.30 The trustee of an attribution MIT is liable to pay tax if the attribution MIT has, for an income year, an under of a particular character that relates to assessable income in the income year for an earlier income year (the base year), worked out on the basis of the trustee's knowledge at the discovery time, which falls short of the amount of that under if it had been worked out on the basis of what the trustee should have known at that time. [Schedule 1, item 1, subsections 276-420(1) and (2)]

5.31 In this regard:

·
the base year is the income year to which the under actually relates;
·
the discovery year is a later income year in which the variance in relation to the base year is discovered; and
·
the correct under (based on what the trustee should have known), and the resulting shortfall (that is, the extent to which the under calculated by the trustee falls short of the correct under), arise in the discovery year.

5.32 The amount of the shortfall is reduced to the extent that the under for the base year is taken into account in a later income year. [Schedule 1, item 1, subsections 276-420(4) and (5)]

5.33 If an attribution MIT has a shortfall under section 276-420, the trustee is liable to pay tax on the amount of the shortfall at the top marginal tax rate (including the Medicare levy and any temporary Budget repair levies). [Schedule 1, item 1, subsection 276-420(2)]

5.34 The Income Tax Act 1986 imposes tax on the shortfall. T he Income Tax Rates Act 1986 and t he Medicare Levy Act 1986 specifies the rate of the shortfall tax to be the top marginal tax rate (including the Medicare levy and any temporary Budget repair levies). [Schedule 6, item 17, paragraph 251S(1)(f) of the ITAA 1936; Income Tax Rates Amendment (Managed Investment Trusts) Bill 2015, Schedule 1, items 11 and 13, subsections 12(13) and 35(1) of the Income Tax Rates Act 1986; Medicare Levy Amendment (Attribution Managed Investment Trusts) Bill 2015, Schedule 1, item 2, subsection 6(6) of the Medicare Levy Act 1986]

5.35 If there is a shortfall under section 276-420, the base year running balance for the determined trust component is adjusted by the amount of the shortfall. [Schedule 1, item 1, subsection 276-420(3)]

5.36 In this regard, the base year running balance keeps track of the amount of unders and overs for a particular base year over the four year period for which unders and overs must be recognised.

5.37 It is necessary to impose tax on the trustee in these circumstances because the amount of the shortfall reflects assessable income derived by the attribution MIT which has not be attributed to members and therefore would not otherwise be subject to tax.

5.38 The trustee of an attribution MIT could be assessed on an under of assessable income of a particular character that is not properly carried forward because, for example, the trustee and the Commissioner of Taxation disagree on the interpretation of a provision in the income tax law. If the trustee of an attribution MIT disagrees with the assessment, they may object to the assessment in the manner set out in Part IVC of the TAA 1953.

Example 5.1


The ABC Trust is an attribution MIT. In the 2017-18 income year, the ABC Trust discovers an amount of $1,000 that relates to the 2016-17 income year. The trustee considers that the discovered amount consists of:

·
ordinary income of $800; and
·
non-assessable non-exempt income of $200.


Therefore, in the 2017-18 income year, the ABC Trust recognises:

·
a $800 under of ordinary assessable income; and
·
a $200 under of non-assessable non-exempt income.


In the 2018-19 income year, the Commissioner of Taxation undertakes a compliance review and concludes that the whole of the discovered amount is ordinary income. As a result, $1,000 (rather than $800) should have been recognised as an under of ordinary assessable income in the 2017-18 income year.

If the trustee of the ABC Trust accepts the Commissioner's view, the trustee could adjust for the variance by recognising in the 2018-19 income year, in relation to the 2016-17 base income year:

·
an additional $200 under of ordinary assessable income; and
·
a $200 over of non-assessable non-exempt income.


Alternatively, the trustee can choose to reissue AMMA statements to members for the 2017-18 income year.

However, if the trustee does not accept the Commissioner's view by recognising the under of $200, the Commissioner may make an assessment under section 276-420 for the 2018-19 income year, being the discovery year in which the trustee should have recognised the under.

Overs of a tax offset not properly carried forward

5.39 The trustee of the attribution MIT is liable to pay tax if the attribution MIT has, for an income year, an over of a particular character that relates to a tax offset for an earlier income year (the base year), worked out on the basis of the trustee's knowledge at the discovery time, which falls short of the amount of that over if it had been worked out on the basis of what the trustee should have known at that time. [Schedule 1, item 1, subsections 276-425(1) and (2)]

5.40 The amount of the shortfall is reduced to the extent that the over for the base year is taken into account in a later income year. [Schedule 1, item 1, subsections 276-425(4) and (5)]

5.41 If an attribution MIT has a shortfall under section 276-425, the trustee is liable to pay tax on the amount of the excess at a rate of 100 per cent. [Schedule 1, item 1, subsection 276-425(2)]

5.42 The Income Tax (Attribution Managed Investment Trusts - Offsets) Act 2015:

·
imposes tax on the shortfall; and
·
specifies the rate of the excess tax to be 100 per cent.

[Income Tax (Attribution Managed Investment Trusts - Offsets) Bill 2015, sections 3 and 4]

5.43 In this regard, as an over of a tax offset results in a member's tax liability being reduced by an equivalent amount, or potentially a refund on any excess tax offset, the amount of tax that the trustee is liable to pay is equal to the amount of the over of the tax offset. This is consistent with the outcome that arises, for example, when a company pays excess franking credits to its members and therefore becomes liable to franking deficit tax.

5.44 If there is a shortfall under section 276-425, the base year running balance is decreased by the amount of the shortfall. [Schedule 1, item 1, subsection 276-425(3)]

Commissioner may remit shortfall taxation

5.45 The Commissioner of Taxation may remit the whole or any part of income tax for which a liability arises under Subdivision 276-G (that is, for shortfall or excess taxation) if the Commissioner is satisfied that the remission would not result in a detriment to the revenue. [Schedule 1, item 1, section 276-430]

5.46 For example, if a liability to tax arises under section 276-425 because there is an excess over of a non-refundable tax offset that is passed on to a tax exempt entity, no tax advantage arises. In these circumstances, the Commissioner may conclude that the excess over does not result in a detriment to the revenue and therefore apply section 276-430 to remit the tax payable.

Determined member components attributed to foreign residents

5.47 Under the attribution model of taxation, amounts related to income and tax offsets of an attribution MIT, determined by the trustee to be of a particular character, are attributed to members and generally retain that character. The amount that is attributed by an attribution MIT to members and generally retains its character is called the determined member component of a particular character.

5.48 The determined member component of a particular character for an income year of a member of an attribution MIT is generally the amount of that character for the income year as shown on the AMMA statement. [Schedule 1, item 1, subsection 276-205(1); Schedule 9, item 4, definition of 'determined member component' in subsection 995-1(1)]

5.49 Currently, the trustee of a managed investment trust is liable to pay income tax on amounts to which a foreign resident beneficiary is presently entitled in some circumstances (section 98 of the ITAA 1936). The effect of section 98 is replicated for foreign resident members of attribution MITs that are not withholding MITs.

Attribution MITs that are not withholding MITs

5.50 Sections 276-105 to 276-115 effectively replicate the effect of section 98 for attribution MITs that are not withholding MITs.

5.51 Therefore, consistent with the outcomes that arise for a managed investment trust under subsections 98(3) and (4) of the ITAA 1936, the trustee of an attribution MIT that is not a withholding MIT is liable to pay income tax if an entity that is a member of the attribution MIT in respect of an income year is a foreign resident at the end of the income year has, for the income year, a determined member component of a particular character that relates to assessable income in respect of the attribution MIT. [Schedule 1, item 1, subsection 276-105(1)]

5.52 If the member is not a beneficiary in the capacity of a trustee of another trust, the attribution MIT is liable to pay income tax on the determined member component to the extent that the component is:

·
attributable to a period when the member is an Australian resident; or
·
attributable to a period when the member is a foreign resident and is attributable to an Australian source.

[Schedule 1, item 1, paragraph 276-105(1)(a), subparagraph 276-105(1)(b)(i), paragraphs 276-105(2)(a) and (b), and subsection 276-105(3)]

5.53 In these circumstances, the rate of tax payable by the trustee on the relevant determined member component is:

·
if the member is not a company, the marginal tax rates (including any temporary Budget repair levies) that apply to a foreign resident individual; or
·
if the member is a company, the standard corporate tax rate (which is currently 30 per cent).

[Schedule 1, item 1, paragraphs 276-105(2)(a) and (b)]

5.54 If the member is a beneficiary in the capacity of a trustee of another trust, the attribution MIT is liable to pay income tax on the determined member component to the extent that the component is attributable to sources in Australia. [Schedule 1, item 1, paragraph 276-105(1)(a), subparagraph 276-105(1)(b)(ii), paragraph 276-105(2)(c) and subsection 276-105(4)]

5.55 In this regard, for these purposes, a determined member component that has the character of a capital gain from a CGT asset that is not taxable Australian property is taken to not be attributable to sources in Australia. [Schedule 1, item 1, subsection 276-105(5)]

5.56 In these circumstances, the rate of tax payable by the trustee on the relevant determined member component is the maximum marginal tax rate (including any temporary Budget repair levies) that applies to a foreign resident individual. [Schedule 1, item 1, paragraph 276-105(2)(c)]

5.57 However, the trustee is not liable to pay income tax under section 276-105 to the extent that the determined member component is reflected in an attribution MIT dividends, interest or royalties payment (an AMIT DIR payment) or a fund payment, and an amount in respect of that payment has been withheld or paid by the trustee under the withholding provisions - that is, an amount:

·
has been withheld from the payment under Subdivision 12-F or 12-H of Schedule 1 to the TAA 1953;
·
would be so withheld apart from an exemption from a requirement to withhold under Subdivision 12-F in that Schedule;
·
has been paid under Subdivision 12A of Schedule 1 to the TAA 1953; or
·
would be so paid apart from an exemption from a requirement to withhold under Subdivision 12-F in that Schedule.

[Schedule 1, item 1, subsection 276-105(6)]

5.58 An AMIT DIR payment is, broadly:

·
an AMIT dividend payment - that is, a dividend that is subject to withholding tax;
·
an AMIT interest payment - that is, interest that is subject to withholding tax; or
·
an AMIT royalty payment - that is, a royalty that is subject to withholding tax.

5.59 If the determined member component is a discount capital gain, then, for the purposes of working out the amount that the trustee is liable to pay income tax on, the amount of the component is doubled. This ensures that the trustee is liable to pay income tax on the component as though it were not a discount capital gain. [Schedule 1, item 1, subsections 276-105(7) and (8)]

5.60 If the trustee is liable to pay tax on the determined member component attributed to a foreign resident member under section 276-105, the member is entitled to a refundable tax offset (under section 67-23) equal to the amount of tax paid by the trustee. [Schedule 1, item 1, section 276-110; Schedule 6, items 5 to 7, 21 and 22, paragraph 98B(2)(c) and subsection 98B(3) of the ITAA 1936, sections 13-1 and 67-23 of the ITAA 1997]

5.61 The Income Tax Act 1986 imposes tax that a trustee must pay under section 276-105. The Income Tax Rates Act 1986 specifies the rate of the tax to be:

·
if tax is payable by the trustee under paragraph 276-105(2)(a) - the rate of tax that would be payable if the trustee were a single foreign resident individual (including any temporary Budget repair levies);
·
if tax is payable by the trustee under paragraph 276-105(2)(b) - the standard corporate tax rate (which is currently 30 per cent); or
·
if tax is payable by the trustee under paragraph 276-105(2)(c) - the highest marginal rate of tax that applies to a foreign resident individual (including any temporary Budget repair levies).

[Income Tax Rates Amendment (Managed Investment Trusts) Bill 2015, Schedule 1, items 2 to 10, 12, 14 and 15, paragraphs 5(a) and (b), subsection 12(6A), section 28A, paragraph 35(2)(aa) and Schedule 10A of the Income Tax Rates Act 1986]

Attribution MITs that are withholding MITs

5.62 To improve certainty for attribution MITs, section 276-105 does not apply to the trustee of an attribution MIT that is a withholding MIT. Instead, the majority of payments made to entities that are foreign resident members of the attribution MIT in respect of an income year (other than in respect of the Australian permanent establishment of a member) will be dealt with under the Pay As You Go withholding provisions in Division 12 of Schedule 1 to the TAA 1953.

5.63 The fund payment withholding provisions apply when a withholding MIT makes a fund payment to another entity that has a place of payment or address outside Australia. In some circumstances, an amount referable to the fund payment will ultimately be derived by an Australian resident. Consequential amendments ensure that where an Australian resident receives such an amount, they will remain subject to general taxation in respect of the amount.

5.64 To ensure that most payments to foreign residents made by a withholding MIT that is an attribution MIT (or interposed custodian or other entity) are subject to the withholding provisions in Division 12 of Schedule 1 to the TAA 1953, the amendments ensure that a liability to managed investment trust withholding tax arises under section 840-805 of the ITAA 1997 in respect of a fund payment made to a foreign resident by an attribution MIT (regardless of whether the foreign resident is acting in the capacity of trustee of another trust) - that is, the operation of paragraphs 840-805(2)(c), (3)(c) and (4)(c)) are modified to give this outcome. [Schedule 3, item 2, subsection 840-805(4D)]

5.65 A foreign beneficiary of a trust who is presently entitled to a share of the income or capital of the trust that is reasonably attributable to a fund payment (the fund payment part) may have a managed investment withholding tax liability in relation to some or all of the payment under subsection 840-805(4).

5.66 If the trustee of the trust is also liable to pay tax in respect of a fund payment part (a taxed part), that is reasonably attributable to the same fund payment, because of the operation of subsection 840-805(4D), the beneficiary can disregard the taxed part for the purposes of determining any liability to managed investment withholding tax that arises under subsection 840-805(4). [Schedule 3, item 2, subsection 840-805(4E)]

5.67 To the extent managed investment trust withholding tax is payable on an amount because of subsection 840-805(4D), the amount is not non-assessable non-exempt income of an Australian resident who, directly or indirectly, receives the payment. As a result, the member will include the amount in their assessable income. [Schedule 3, items 3 and 4, subsection 840-815(2)]

5.68 If the resident receives such amounts from a custodian that is interposed between the attribution MIT and the resident, the resident will include the amount in their assessable income because of subsection 276-80(2) (which operates to ensure that the member is taken to have derived, received or made an amount of a particular character). [Schedule 1, item 1, subsection 276-95(1)]

Consequential amendments

Definition of assessment

5.69 The definition of assessment in subsection 6(1) of the ITAA 1936 is being amended so that it covers the ascertainment of the amount payable (or that no amount is payable) by the trustee of an attribution MIT. [Schedule 6, item 2, definition of 'assessment' in section 6(1) of the ITAA 1936]

5.70 The Commissioner of Taxation's assessment power is in section 169 of the ITAA 1936. That power provides for assessments other than on the basis of taxable income.

5.71 The Commissioner can raise multiple liabilities for similar shortfalls in one assessment. For example, if there are multiple assessable income character shortfall amounts for a particular income year because of variations relating to more than one member, the Commissioner may ascertain the trustee's liability to pay tax on the sum of those assessable income character shortfall amounts.

5.72 In addition, the Commissioner can include multiple liabilities arising under different provisions of the tax assessable income character shortfall amounts in one assessment. For example, an assessment of the tax payable on the sum of the trustee's assessable income character shortfall amounts may also include the trustee's liability to pay tax on foreign resident member's components.

5.73 If the trustee was liable to pay tax on more than one foreign resident member's determined member component of a character relating to assessable, the tax payable would be calculated separately, with the sum of the tax payable included in the assessment.

5.74 Similarly, the Commissioner can raise multiple similar liabilities in one assessment. These liabilities could arise separately because, for example, the attribution MIT has classes of interests and made a choice for each class to be treated as a separate attribution MIT for the purposes of Division 276. The Commissioner may ascertain the trustee's liability to pay tax on the sum of similar liabilities.

Definition of income tax law

5.75 The definition of income tax law in subsection 995-1(1) of the ITAA 1997 is being amended so that it covers tax payable in accordance with subsection 276-340(2), 276-410(2), 276-425(2) or 276-820(6). [Schedule 9, item 7, definition of 'income tax law' in section 995-1(1)]

5.76 Subsections 276-340(2), 276-410(2), 276-425(2) and 276-820(6) make a trustee of an attribution MIT liable to pay tax where an excess character relating to a tax offset is attributed to a member. The tax is imposed by the Income Tax (Attribution Managed Investment Trusts - Offsets) Act 2015.


View full documentView full documentBack to top