This Case Decision Summary illustrates the approach taken by the Commissioner of Taxation in applying Part IVA to a real fact situation. The facts have been simplified to focus on key practical issues.
To properly apply Part IVA, the law must be applied to all the relevant facts. In particular, an eight step test must be applied to determine whether, on the facts, a particular scheme objectively has the dominant purpose of obtaining a tax benefit not intended by the law. Where the scheme simply takes advantage of the intended operation of a structural feature of the law, Part IVA will not apply because the required dominant purpose will not exist.
In applying the dominant purpose test, regard must be had to the manner in which the scheme is carried out; that is, whether the scheme bears the stamp of tax avoidance. The Full Federal Court in Bellinz Pty Limited v Federal Commissioner of Taxation 98 ATC 4634 at 4647; 39 ATR 198 at 212 has noted the difficulty in applying Part IVA prior to the scheme being carried out, because the execution of the scheme may in fact be different to that originally proposed. Even where the scheme has been carried out, the Court has noted that a difficulty in coming to a view on the application of Part IVA is to ensure that all relevant facts are considered, including those concerning the manner in which the scheme is carried out.
This Case Decision Summary has been withdrawn.
ATO Case Decision
Case Decision Number:
CDS10332
Subject:
Does Part IVA (Income Tax Assessment Act 1936 (ITAA 1936)) apply to a proposed amendment to a trust deed of a family trust, to allow distributions of business or property income to a newly incorporated resident company which is not currently a beneficiary, in a year where the company’s tax rate is lower than all other regular beneficiaries’ tax rates?
Decision:
It will depend on whether the company is owned by the existing family beneficiaries. [ Note : This decision only deals with the operation of Part IVA (ITAA 1936) and does not cover the issue of whether the proposed amendment to the trust deed would amount to the creation of a new trust estate].
Facts:
A trust deed presently allows for both income and corpus to be distributed at the discretion of the trustee. Beneficiaries include three generations of extended family members, unnamed ‘associated’ companies and trusts, and two named charities. The trust has never distributed to any company before.
Reasons for Decision:
Part IVA will not apply to structural features of the law, except where the way things are done would stamp the arrangement as avoidance.
Legislative References:
Income Tax Assessment Act 1936 Part IVA
Keywords:
Beneficiaries
Company tax
Family trusts
Income alienation
Part IVA
Personal services income
Schemes & shams
Tax avoidance
Tax benefits under tax avoidance schemes
Tax planning, avoidance & evasion
Trusts
FOI Number:
I2000332