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Edited version of your private ruling

Authorisation Number: 1012463091767

Ruling

Subject: Trust Resettlement

Question 1

Will CGT event E1, CGT event E2 or CGT event A1 under sections 104-55, 104-60 or 104-10 of the Income Tax Assessment Act 1997 (ITAA 1997), occur if the trust varies the terms of the trust deed?

Answer

No

This ruling applies for the following periods:

1 July 2012 to 30 June 2013

The scheme commences on:

1 July 2012

Relevant facts and circumstances

Relevant legislative provisions

Income Tax Assessment Act 1997 section 104-55

Income Tax Assessment Act 1997 section 104-60

Income Tax Assessment Act 1997 section 104-10

Income Tax Assessment Act 1997 subsection 104-10(2)

Reasons for decision

CGT event E1 & E2

CGT event E1 arises in accordance with section 104-55 of the ITAA 1997 due to a trust being created over a CGT asset. This event will also be triggered if changes made to a trust alter the nature and character of the trust relationship such that the original trust ceases to exist and a new trust is created.

CGT event E2 arises in accordance with section 104-60 of the ITAA 1997 as a CGT asset is transferred to a new trust. Where this event occurs as a result of a trust resettlement, the assets are considered to be transferred from the original trust to the new trust.

Taxation Determination TD 2012/21 Income tax: does CGT event E1 or E2 in sections 104-55 or 104-60 of the Income Tax Assessment Act 1997 happen if the terms of a trust are changed pursuant to a valid exercise of a power contained within the trust's constituent document, or varied with the approval of a relevant court? sets out the Commissioner's view in respect to trust resettlements and whether or not a resettlement has occurred.

The decisions in Commissioner of Taxation v David Clark; Commissioner of Taxation v. Helen Clark [2011] FCAFC 5; 2011 ATC 20-236, (2011) 79 ATR 550 (Clark) and Federal Commissioner of Taxation v. Commercial Nominees of Australia [1999] FCA 1455; 99 ATC5115; (1999) 43 ATR 42 (Commercial Nominees), are authority cases in determining the continuity of a trust and whether a resettlement has occurred. Paragraph 21 of TD 2012/21 states:

Example 1 of TD 2012/21 provides an example of when new entities, exclusion of entities and class of objects are added to the trust deed.

Therefore, TD 2012/21 asserts that a valid amendment to a trust deed will not result in the termination of a trust as long as:

In this case, the trustee has drafted a Deed of Variation to remove a clause which restricts a specified beneficiary from receiving income and capital of the Trust until a future date has passed. The power to amend the terms of the Trust is provided for in the trust deed and consent, although not required, has been sought by the guardians of the Trust.

The effect of the Deed of Variation will allow the trustee to exercise its discretion to distribute capital or income to the specified beneficiary.

Following the decisions in Commercial Nominees and Clark, it is evident that in this case, the amendment is made with a valid exercise of power contained within the trust deed and there is a continuity of trust property and membership, resulting in the continuity of the existing Trust.

Therefore, the proposed amendment does not give rise to a resettlement of the Trust and CGT event E1 or E2 will not occur.

CGT event A1

CGT event A1 under section 104-10 of the ITAA 1997 occurs when you dispose of a CGT asset. You are deemed to dispose of a CGT asset if a change of ownership occurs from you to another entity, whether because of some act or event or by operation of law.

CGT event A1 arises if there is a disposal of the assets in a trust. In the context of a resettlement, this occurs as the trustee is considered to have disposed of the assets when the original trust ended.

As it has been determined that the Deed of Variation will not cause a trust resettlement, there will not be a disposal of a CGT asset under subsection 104-10(2) of the ITAA 1997 as there has been no change in ownership of the trust property. Therefore the proposed amendment in these circumstances will not give rise to CGT event A1 under section 104-10 of the ITAA 1997.


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