Edited version of your private ruling

Authorisation Number: 1012433277846

Ruling

Subject: Income of a Trust

Question 1

1. If the Trustee appropriates a specific Share for the absolute benefit of one of the Beneficiaries, will CGT event E5 happen in respect of that specific Share?

Answer

Yes. CGT event E5 in section 104-75 of the Income Tax Assessment Act 1997 (ITAA 1997) will happen when the Trustee appropriates a specific Share for the absolute benefit of a Beneficiary.

Question 2

2. In the event that a capital gain arises from the happening of a CGT event to a specific Share appropriated by the Trustee for a particular Beneficiary's benefit, will section 95AAB and Division 6E operate to exclude the capital gain from calculation of modified net income of the Trust and require that Beneficiary to include that capital gain in his/her calculation of assessable income under s 102-5 ITAA 1997?

Answer

Division 6E of Part III of the Income Tax Assessment Act 1936 (ITAA 1936) will operate to exclude any capital gain made by the Trustee of the Trust as a result of CGT event E5 happening on the appropriation of a particular Share for a particular Beneficiary from the modified net income of the Trust to the extent that that it otherwise forms part of the Trust's net capital gain calculated under subsection 102-5(1) of the ITAA 1997 and the Trust has a positive net income. This ensures the capital gain will not be taken into account in working out the amount assessed to the Beneficiary under section 97 or 98A of the ITAA 1936.

The capital gain will instead be dealt with under the rules in Subdivision 115-C of the ITAA 1997. Subdivision 115-C will treat the Beneficiary as having made a capital gain to the extent the capital gain otherwise forms part the Trust's net capital gain calculated under subsection 102-5(1) and the Trust has a positive net income, grossed up for any relevant CGT discount applied by the Trust at step three of the method statement in subsection 102-5(1) and for any of the small business concessions applied by the Trust at step four of the method statement in subsection 102-5(1). The Beneficiary will then be entitled to apply any relevant discounts and concessions as are available to them to the capital gain they are taken to have made.

Question 3

3. Will the Trustee be liable to tax under s 98 ITAA 1936 in relation to any net capital gain arising from the happening of a CGT event to a specific Share appropriated by the Trustee for the benefit of any of the named beneficiaries?

Answer

The Trustee will be assessed and liable to pay tax under subsection 98(3) of the ITAA 1936 in respect of the capital gain a Beneficiary is taken to have made under Subdivision 115-C of the ITAA 1997 as a result of the Trustee having made a capital gain when CGT event E5 happened on the appropriation of a specific share for the Beneficiary - if the Beneficiary is a non-resident at the end of the income year in which the capital gain was made by the Trustee. Where the Beneficiary is not a beneficiary in their capacity of the trustee of another trust, the amount of the capital gain on which the Trustee is so assessed is the amount worked out under subsection 115-225(1) of the ITAA 1997 in relation to that Beneficiary.

Question 4

4. If both the Trustee and a Beneficiary are liable to tax or assessable in relation to the same CGT event happening to a specific Share (i.e. if the Trustee is liable under s 98 ITAA 1936 and the Beneficiary is required to include an amount in assessable income under s 98A ITAA 1936 or s 102-5 ITAA 1997), is one liability a principal liability and the other a subordinate liability, or is each taxpayer independently liable?

Answer

Each taxpayer is separately and independently liable.

Question 5

5. If the Trustee is liable to tax under s 98 ITAA 1936 in relation to any net capital gain arising from the happening of a CGT event to a specific Share appropriated for the absolute benefit of any of the named beneficiaries; will the relevant Beneficiary be entitled under s 98A ITAA 1936 to a credit against his/her own tax liability and a refund from the Commissioner for any tax paid by the Trustee on that net capital gain?

Answer

Yes

Question 6

6. Will the Trustee be liable to tax under s 99A ITAA 1936 in relation to any net capital gain arising from the happening of any CGT events in relation to any specific Shares referred to above?

Answer

No.

Question 7

7. Will the Trustee become obliged under s 254 ITAA 1936 to retain legal ownership of all or some of the Shares on the happening of any CGT events referred to above? If so, to what extent must the Trustee retain the Shares, and when will that obligation cease?

Answer

The Trustee will not be obliged to retain legal ownership under section 254 of any Share as a result of CGT event E5 happening on the appropriation by the Trustee of a specific Share for a particular Beneficiary.

This ruling applies for the following periods:

1 July 2012 to 30 June 2016

The scheme commences on:

1 July 2012.

Relevant facts and circumstances

1. The Trust was established by deed.

2. The Trustee is an Australian resident for Australian income tax purposes. The Trust is a 'resident trust estate' as that term is defined in section 95 of the Income Tax Assessment Act 1936 (ITAA 1936).

3. The Trust is not a unit trust or a trust to which Division 128 of the Income Tax Assessment Act 1997 (ITAA 1997) applies.

4. The Trust has vested.

5. As at 1 July 2012, and until at least the date of issue of this Ruling, the Trustee, in their capacity as Trustee of the Trust is the registered owner of Shares.

6. Each Share on issue is individually numbered.

7. The Shares are held by the Trustee on capital account.

8. The Shares are taxable Australian property within the context of Division 855 of the ITAA 1997.

9. As at the Vesting Date, there were several Beneficiaries of the Trust

10. They will continue to be Beneficiaries of the Trust throughout the period to which this ruling applies, unless their entitlements under the trust are fully satisfied.

11. The Trustee has from the Vesting Date the duty to stand possessed of the Shares together with any income thereof for the Beneficiaries as tenants in common in equal shares (as per the Trust Deed as amended).

12. The Trustee may appropriate Shares by making a written resolution that a particular number of shares (identified by their respective share numbers) are allocated to a particular Beneficiary in satisfaction of their equitable interest in the Trust (to the exclusion of all other Beneficiaries).

13. As at the date of issue of this ruling the Trustee had not appropriated any Share in the manner outlined in the previous paragraph (or otherwise). Further, no agreement has been made between the Trustee and any Beneficiary that any specific Share should be accounted for as being held separately from the other Shares solely for any Beneficiary.

Relevant legislative provisions

Income Tax Assessment Act 1936:

section 6

Division 6

section 95AAB

section 95(1)

section 97

section 98

section 98A

section 99

section 99A

Division 6E

section 102UW

section 102UX

section 254

Income Tax Assessment Act 1997

section 102-5

section 104-75

section 108-5

Subdivision 115-C

section 115-215

section 115-220

section 115-225

section 115-227

section 115-228

section 115-230

Division 128

Subdivision 207-B

Reasons for decision

Question 1

1. If the Trustee appropriates a specific Share for the absolute benefit of one of the Beneficiaries, will CGT event E5 happen in respect of that specific Share?

Answer

Yes. CGT event E5 in section 104-75 of the Income Tax Assessment Act 1997 (ITAA 1997) will happen when the Trustee appropriates a specific Share for the absolute benefit of a Beneficiary.

Detailed reasoning

CGT event E5 in section 104-75 happens when a beneficiary of a trust (other than a unit trust or a trust to which Division 128 of the ITAA 1997 applies) becomes absolutely entitled to a CGT asset of the trust as against the trustee: subsections 104-75(1) and (2). The trustee makes a capital gain if the market value of the asset (at the time of the event) is more than its cost base; and a capital loss if that market value is less than the asset's reduced cost base: subsection 104-75(3).

The beneficiary may also make a capital gain if the market value of the asset (at the time of the event) is more than the cost base of the beneficiary's interest in the trust capital to the extent it relates to the asset; and a capital loss if that market value is less than the reduced cost base of the beneficiary's interest: subsection 104-75(5). However, there are exceptions for a beneficiary, including if the beneficiary acquired their interest for no expenditure and other than by way of assignment from another entity: subsection 104-75(6).

Each of the Shares held by the Trustee of the Trust is a 'CGT asset' (as that term is defined in section 108-5 of the ITAA 1997). Further, the Trust is not a unit trust or a trust to which Division 128 applies.

The circumstances in which a beneficiary of a trust is considered to be absolutely entitled to an asset of the trust for the purpose of the CGT provisions are set out in Draft Taxation Ruling TR 2004/D25. It says the core principle underpinning the concept of absolute entitlement in the CGT provisions is the ability of a beneficiary who has a vested and indefeasible interest in the entire trust asset to call for the asset to be transferred to them or to be transferred at their direction (paragraph 10).

TR 2004/D25 says the requirements for absolute entitlement can only be satisfied by a single beneficiary in respect of a single trust asset.

In the circumstances of this case, the requirements for absolute entitlement will be satisfied when the Trustee appropriates a specific Share for the absolute benefit of a particular Beneficiary. That is, when the Trustee resolves to hold specifically numbered shares (each Share being denoted by a unique identifying number) as being held for the sole and absolute benefit of a particular Beneficiary to the exclusion of the other Beneficiaries.

The existence at that time of a trustee's lien to enforce their right of indemnity against trust assets for expenses properly incurred in the administration of the trust will not prevent a beneficiary becoming absolutely entitled (paragraph 18 of TR 2004/D25).

Therefore, CGT event E5 will happen when the Trustee appropriates a specific Share for a particular Beneficiary.

The requirements for absolute entitlement will not be satisfied in respect of a Share prior to its appropriation for a particular Beneficiary. This is because, before appropriation, each Beneficiary has an interest in each Share - meaning that there are multiple beneficiaries with an interest in each Share.

Question 2

2. In the event that a capital gain arises from the happening of a CGT event to a specific Share appropriated by the Trustee for a particular Beneficiary's benefit, will section 95AAB and Division 6E operate to exclude the capital gain from calculation of modified net income of the Trust and require that Beneficiary to include that capital gain in his/her calculation of assessable income under s 102-5 ITAA 1997?

Answer

Division 6E of Part III of the Income Tax Assessment Act 1936 (ITAA 1936) will operate to exclude any capital gain made by the Trustee of the Trust as a result of CGT event E5 happening on the appropriation of a particular Share for a particular Beneficiary from the modified net income of the Trust to the extent that that it otherwise forms part of the Trust's net capital gain calculated under subsection 102-5(1) of the ITAA 1997 and the Trust has a positive net income. This ensures the capital gain will not be taken into account in working out the amount assessed to the Beneficiary under section 97 or 98A of the ITAA 1936.

The capital gain will instead be dealt with under the rules in Subdivision 115-C of the ITAA 1997. Subdivision 115-C will treat the Beneficiary as having made a capital gain to the extent the capital gain otherwise forms part of the Trust's net capital gain calculated under subsection 102-5(1) and the Trust has a positive net income, grossed up for any relevant CGT discount applied by the Trust at step three of the method statement in subsection 102-5(1) and for any of the small business concessions applied by the Trust at step four of the method statement in subsection 102-5(1). The Beneficiary will then be entitled to apply any relevant discounts and concessions as are available to them to the capital gain they are taken to have made.

Detailed reasoning

Following amendments by Tax Laws Amendment (2011 Measures No. 5) Act 2011, trust capital gains are now allocated to beneficiaries (or the trustee) in accordance with the rules in Subdivision 115-C. To prevent double taxation, Division 6E of Part III ensure that trust capital gains are not also dealt with under the core trust assessing provisions in Division 6 of Part III of the ITAA 1936. These amendments apply to the 2011 and later income years.

The purpose of these amendments is to ensure that, where permitted by the trust deed, capital gains can be effectively streamed to beneficiaries for tax purposes by making them specifically entitled to those amounts: see paragraphs 2.5 to 2.20 of the Explanatory Memorandum that accompanied the Bill that became Tax Laws Amendment (2011 Measures No. 5) Act 2011. (There are comparable provisions for franked distributions in Subdivision 207-B.)

Subdivision 115-C

The manner in which Subdivision 115-C allocates a trust capital gain depends on whether, and the extent to which, a beneficiary is 'specifically entitled' to that capital gain.

A beneficiary will be considered 'specifically entitled' to a trust capital gain to the extent they have received, or are reasonably expected to receive, the net financial benefit referable to the capital gain; and provided that entitlement is recorded in its character as such in the accounts or records of the trust within two months after the end of the income year: section 115-228 of the ITAA 1997.

Where a Beneficiary of the Trust becomes absolutely entitled to a Share it would be reasonable to expect that the Beneficiary will receive all of the net financial benefit referable to the capital gain made by the Trustee from CGT event E5. This is consistent with paragraph 2.59 of the Explanatory Memorandum that accompanied the Bill that became Tax Laws Amendment (2011 Measures No. 5) Act 2011.

Further, a written resolution evidencing the appropriation of a particular Share for a particular Beneficiary will satisfy the additional requirement in section 115-228 that the Beneficiary's entitlement to the net financial benefit referable to the capital gain be recorded in the accounts or records of the trust. The resolution is considered a 'record' of the trust for these purposes. Moreover, in identifying the particular share, the record will also indicate the character of the distribution as one which is referrable to the particular capital gain.

In those circumstances, a Beneficiary will be specifically entitled to the entire capital gain made by the Trustee as a result of the appropriation of a Share to that Beneficiary; and that will be the Beneficiary's 'share' of the trust capital gain: section 115-227 of the ITAA 1997.

However, a Beneficiary is not simply treated as then having made their share of the capital gain for the purpose of working out their own net capital gain or loss. The way in which the Trustee has worked out its own net capital gain affects the way in which the Beneficiary calculates their capital gain.

First, the rules in section 115-225 of the ITAA 1997 are applied to work out that part of the trust capital gain remaining after the Trustee has applied any capital losses or net capital losses to the capital gain and after applying any CGT discounts: subsection 115-225(1). So if the Trustee has applied its own capital losses or net capital losses in working out its net capital gain, this will be reflected in (and will reduce) the capital gain the Beneficiary is taken to have made.

The result obtained following the application of section 115-225 is then doubled if the Trustee applied the 50% CGT discount in working out its own net capital gain: subsection 115-215(3) of the ITAA 1997. That is the amount treated as a capital gain of the Beneficiary which is then taken into account (along with the Beneficiary's other capital gains and losses) in working out the Beneficiary's net capital gain or loss under section 102-5 of the ITAA 1997. In doing so, the Beneficiary applies their own capital losses and net capital losses and any relevant CGT discount.

Note 1: A trustee can also be specifically entitled to a trust capital gain if they make a choice to that effect under section 115-230 of the ITAA 1997. But that choice can only be made for a capital gain if no trust property representing the gain has been paid or applied for the benefit of a beneficiary. It is considered here that the trust property representing the gain (namely the Shares) will have been paid or applied for the benefit of a Beneficiary by virtue of the Beneficiary becoming absolutely entitled to those shares. Therefore, the Trustee of the Trust cannot make the choice provided by section 115-230 in respect of a capital gain the Trustee makes as a result of CGT event E5 happening in respect of the Shares.

Note 2: There is a prospect of law change regarding the eligibility of non-residents to the 50 % CGT discount which, if enacted, may affect any non-resident Beneficiary's eligibility to apply the discount that would otherwise be applicable to them in respect of the gain (see Treasurer's Media Release number 034/2102 on 8 May 2012).

Application of Division 6E

Because trust capital gains are now brought to tax under Subdivision 115-C, Division 6E ensures they are not also assessed under the core trust assessing provisions in Division 6. To that end, the trust net income assessed to a Beneficiary under Division 6 is generally worked out ignoring the trust capital gains.

· Broadly, Division 6 assesses a resident beneficiary who is 'presently entitled' to a share of the 'income of the trust estate' for an income year on that same share (or proportion) of the trust's net income for the year (section 97); and a beneficiary who is a non-resident throughout the income year who is 'presently entitled' to a share of the 'income of the trust estate' for that year on so much of their individual interest in the trust's net income for the year as is attributable to Australian sources (section 98A). A trustee may also be assessed (under section 98) on a non-resident beneficiary's share of trust net income (and the tax so paid is deducted from the tax assessed to the non-resident beneficiary with any balance being refundable). A trustee is also generally assessed (under section 99 or 99A) on any of the trust's net income not assessed to (or on behalf of) a beneficiary.

Division 6E applies if the net income of the trust (worked out in accordance with the definition of that term in subsection 95(1)) exceeds nil, and the calculation of that net income included capital gains remaining after application of capital losses and CGT concessions (and/or franked distributions remaining after application of directly relevant deductions or franking credits): section 102UW of the ITAA 1936.

If Division 6E applies, then the amount assessed to a Beneficiary (or to the Trustee) is worked out under Division 6 on the assumption that the trust had no capital gains remaining after relevant reductions (or franked distributions remaining after the application of directly relevant deductions, or franking credits): section 102UX of the ITAA 1936. That is, the core concepts of trust income, the amount of that income to which a beneficiary is presently entitled and trust net income are worked out ignoring the trust's capital gains (and franked distributions).

This ensures the capital gain will not be taken into account in working out the amount assessed to the Beneficiary under section 97 or section 98A (even though section 95AAB of the ITAA 1936 allows the amount assessed to a beneficiary as a result of the operation of Subdivision 115-C to be treated as if it had been assessed to the beneficiary under section 97 or 98A for certain purposes).

How Subdivision 115-C further interacts with section 98A is considered at Question 4.

Question 3

3. Will the Trustee be liable to tax under s 98 ITAA 1936 in relation to any net capital gain arising from the happening of a CGT event to a specific Share appropriated by the Trustee for the benefit of any of the named beneficiaries?

Answer

The Trustee will be assessed and liable to pay tax under subsection 98(3) of the ITAA 1936 in respect of the capital gain a Beneficiary is taken to have made under Subdivision 115-C of the ITAA 1997 as a result of the Trustee having made a capital gain when CGT event E5 happened on the appropriation of a specific share for the Beneficiary - if the Beneficiary is a non-resident at the end of the income year in which the capital gain was made by the Trustee. Where the Beneficiary is not a beneficiary in their capacity of the trustee of another trust, the amount of the capital gain on which the Trustee is so assessed is the amount worked out under subsection 115-225(1) of the ITAA 1997 in relation to that Beneficiary.

Detailed reasoning

The amendments made by Tax Laws Amendment (2011 Measures No. 5) Act 2011 ensure that, in appropriate cases, a trustee will continue to be assessed and liable to pay tax under section 98 in respect of amounts now dealt with under the rules in Subdivision 115-C.

Therefore, if a Beneficiary who is treated under Subdivision 115-C as having an 'extra capital gain' is a non-resident at the end of the income year in which the capital gain was made by the Trustee, the Trustee may be assessed under subsection 98(3) on all or some part of the Beneficiary's extra capital gain - despite the rules in Division 6E that were explained in response to Question 2. This outcome arises by operation of section 115-220 of the ITAA 1997.

· A 'non-resident' means a person who is not a resident of Australia: subsection 6(1) of the ITAA 1936. A person is a 'resident of Australia' if they satisfy one of the conditions in the definition of that term in subsection 6(1) - for example, if their domicile is in Australia, unless the Commissioner is satisfied that their permanent place of abode is outside Australia.

If section 115-220 applies to assess the Trustee under section 98 in respect of a trust capital gain, then the amount of the capital gain assessed to the Trustee is the Beneficiary's attributable gain worked out under section 115-225. This is, broadly, so much of the capital gain to which the Beneficiary was specifically entitled as remains following application of the Trustee's capital losses and relevant CGT discounts and concessions. That is, it is the gain the Beneficiary is taken to have made before it is doubled or grossed up by the Beneficiary as appropriate under subsection 115-215(3).

But the gain amount on which the trustee is assessed will be doubled or grossed-up if the beneficiary is a beneficiary in the capacity of a non-resident trustee of another trust estate. This effectively removes the benefit of the discount in respect of section 98 assessments on behalf of beneficiaries who would not be able to claim the discount had they made the capital gain directly. See paragraph 115-220(1)(b).

Note: As noted in the response to Question 2, the Government announced a change to the 50 % CGT discount which, if enacted, may affect how the discount will apply in respect of a non-resident Beneficiary.

Question 4

4. If both the Trustee and a Beneficiary are liable to tax or assessable in relation to the same CGT event happening to a specific Share (i.e. if the Trustee is liable under s 98 ITAA 1936 and the Beneficiary is required to include an amount in assessable income under s 98A ITAA 1936 or s 102-5 ITAA 1997), is one liability a principal liability and the other a subordinate liability, or is each taxpayer independently liable?

Answer

Each taxpayer is separately and independently liable.

Detailed reasoning

As outlined in response to Questions 2 and 3, in respect of a CGT event E5 capital gain made by the Trustee on the appropriation of a particular Share for a particular Beneficiary who is a non-resident at the end of the income tax year in which the capital gain was made by the Trustee:

· the Trustee may be assessed and liable to pay tax under subsection 98(3) of the ITAA 1936, and

· the Beneficiary may be taken to have an 'extra capital gain' under the rules in Subdivision 115-C which the Beneficiary must take into account in working out their own net capital gain or loss under section 102-5 of the ITAA 1997.

Both the Trustee and the Beneficiary may, as a consequence, have a liability to tax. In those circumstances, each is separately and independently liable. However, the income tax assessed to the Beneficiary is effectively reduced by any tax paid by the Trustee (see the response to Question 5).

Note: The Question refers to a Beneficiary being required to include an amount in their assessable income under section 98A of the ITAA 1936 in respect of the CGT event E5 capital gain made by the Trustee. Generally, if a trustee is assessed under section 98 in respect of a non-resident beneficiary, the beneficiary will also be assessed under subsection 98A (instead of under section 97). And, as explained in our response to Question 3, the Trustee may be assessed in respect of a trust capital gain under section 98.

But, as explained in our response to Question 2, beneficiaries are now assessed on trust capital gains through Subdivision 115-C of the ITAA 1997. Therefore, by virtue of Division 6E, the Beneficiaries are no longer assessed in respect of such gains under section 97; or under section 98A (even if the Trustee is assessed under section 98). However, by virtue of section 95AAB, an amount assessed to a Beneficiary under Subdivision 115-C may be taken to have been assessed to them under section 98A for the purpose of determining the Beneficiary's deduction for tax paid by the trustee under section 98 (see the response to Question 5).

Question 5

5. If the Trustee is liable to tax under s 98 ITAA 1936 in relation to any net capital gain arising from the happening of a CGT event to a specific Share appropriated for the absolute benefit of any of the named beneficiaries will the relevant Beneficiary be entitled under s 98A ITAA 1936 to a credit against his/her own tax liability and a refund from the Commissioner for any tax paid by the Trustee on that net capital gain?

Answer

Yes.

Detailed reasoning

As discussed, in some circumstances, the Trustee and the Beneficiary may both be assessed in respect of the same CGT event E5 capital gain made by the Trustee as a result of the Trustee appropriating a particular Share for a Beneficiary who is a non-resident at the end of the income year in which the Trustee made the capital gain - the Trustee being assessed under section 98 of the ITAA 1936 and the Beneficiary because of Subdivision 115-C and section 102-5 of the ITAA 1997.

In those circumstances, there shall be deducted from the income tax payable by the Beneficiary, the tax paid by the Trustee; and if the tax paid by the Trustee exceeds the tax assessed to the Beneficiary, then the Commissioner shall pay that excess to the Beneficiary: subsection 98A(2).

While the application of Division 6E means the Beneficiary will not have been assessed under subsection 98A(1) - which would normally have been the trigger for a subsection 98A(2) credit - section 95AAB of the ITAA 1936 ensures that the amount included in the Beneficiary's assessable income because of Subdivision 115-C is taken to be included in their assessable income under subsection 98A(1) for the purpose of the credit provision in subsection 98A(2).

Question 6

6. Will the Trustee be liable to tax under s 99A ITAA 1936 in relation to any net capital gain arising from the happening of any CGT events in relation to any specific Shares referred to above?

Answer

No.

Detailed reasoning

The Beneficiary will be specifically entitled to the whole of any capital gain made by the Trustee as a result of CGT event E5 happening on the appropriation of a particular Share for the Beneficiary. The Beneficiary will be taken to have made a capital gain because of, and in the amount prescribed by, Subdivision 115-C of the ITAA 1997. Therefore, the Trustee would not be assessed and liable to pay tax under section 99A of the ITAA 1936 in respect of any amount of the capital gain: Division 6E (in particular section 102UX of the ITAA 1936). See further the response to Question 2.

Question 7

7. Will the Trustee become obliged under s 254 ITAA 1936 to retain legal ownership of all or some of the Shares on the happening of any CGT events referred to above? If so, to what extent must the Trustee retain the Shares, and when will that obligation cease?

Answer

The Trustee will not be obliged to retain legal ownership under section 254 of any Share as a result of CGT event E5 happening on the appropriation by the Trustee of a specific Share for a particular Beneficiary.

Detailed reasoning

Section 254 applies to agents and trustees and provides:

Section 254 relevantly provides:

254(1) With respect to every agent and with respect also to every trustee, the following provisions shall apply:

(a) He or she shall be answerable as taxpayer for the doing of all such things as are required to be done by virtue of this Act in respect of the income, or any profits or gains of a capital nature, derived by him or her in his or her representative capacity, or derived by the principal by virtue of his or her agency, and for the payment of tax thereon.

….

(d) He or she is hereby authorized and required to retain from time to time out of any money which comes to him or her in his or her representative capacity so much as is sufficient to pay tax which is or will become due in respect of the income, profits or gains.

[Emphasis added]

The Trustee's obligation under paragraph 254(1)(d) is limited to an obligation to retain specified amounts from 'money' which comes to her in her Trustee capacity. The Shares are not money.

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