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Edited version of private advice
Authorisation Number: 1051970330207
Date of advice: 28 June 2022
Ruling
Subject: Foreign trust distribution
Question 1
Will s.99B(2) of the ITAA 1936 apply to exclude distributions of all amounts of identified trust corpus where they are distributed by the Trustee of the Trust to the Taxpayer?
Answer
Yes.
Question 2
Will s.99B(2) of the ITAA 1936 apply to exclude the distribution of the proceeds received from a life insurance policy where the funds are distributed by the Trustee of Trust to the Taxpayer?
Answer
Yes.
Question 3
Will s.99B(2) of the ITAA 1936 apply to exclude the distribution of the original deemed cost base of the shares acquired as a result of the demutualisation of a company on where the funds are distributed by the Trustee of the Trust to the Taxpayer?
Answer
Yes.
This private ruling applies for the following period(s):
Year ending 30 June 20XX
Year ended 30 June 20XX
The scheme commenced on:
28 April 19XX
Relevant facts and circumstances
You are an Australian tax resident and have lived in Australia since 20XX.
During your time here, you married an Australian citizen. However, you separated and divorced.
You are a citizen of another country and have a Special Category Visa that allows you to stay and work in Australia.
You are not subject to the Australian Temporary Resident foreign income exemption rules.
The deceased passed away in 19XX.
A trust was settled in another country in 19XX.
The deceased was the settlor of the trust.
The deceased's children are eligible "discretionary beneficiaries" of the family trust
The siblings of the taxpayer and are both residents of another country.
Clause 6 of the trust deed provides the capital distribution power and allows the trustee to make distributions of any part of the capital of the Trust Fund to "any child or remote issuer of the settlor".
Clause 2.05 of the Schedule of Trustees' Powers provides the trustee with the power to determine whether monetary amounts as capital, income, and blended funds.
A "gifting programme" agreement was entered into based on professional advise.
A deed was prepared and executed in 19XX in relation to the gifting strategy.
The gifting rules in the other country allowed for an amount to be gifted and increased over time.
The deceased adopted this strategy until death in 19XX consistent with the advice received and the process was adopted by the taxpayer after the deceased passed.
The identified corpus of the trust outlined was $XXX,XXX
The trustee received a payout from a life insurance policy.
The proceeds from the policy were reflected in the Capital Account of the Trust and placed on term deposit.
In 19XX the trustee received a number of shares as part of the demutualisation of the company.
These shares are deemed to have a capital cost base of AUD $XX.XX per share.
These shares were sold in January 20XX.
Relevant legislative provisions
Income Tax Assessment Act 1936 section 99B
Income Tax Assessment Act 1936 subsection 99B(1)
Income Tax Assessment Act 1936 subsection 99B(2)
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