Edited version of private advice

Authorisation Number: 1052089883127

Date of advice: 3 March 2023

Ruling

Subject: CGT - distribution to non-resident beneficiary

Question 1

Will the Commissioner regard the sale of shares in Company X as being:

a.    on the capital account and so the provisions of Part 3-1 to Part 3-3 of the Income Tax Assessment Act 1997 (ITAA 1997) and Division 6E of the Income Tax Assessment Act 1936 (ITAA 1936) apply, but

b.    not a trading activity, the profits of which would be assessable income under ordinary concepts and so otherwise subject to Australian tax under section 6-5 of the ITAA 1997, and

c.     not as part of a profit-making undertaking or plan, the profits of which would be assessable income as an item of statutory income and so otherwise subject to Australian tax under section 15-15 of the ITAA 1997.

Answer

Yes.

Question 2

Does the Commissioner accept that the gains from the sale of the Company X shares by the Trustee for the Trust, to which Company Y and Company Z have been made presently entitled are not taxable in Australia as they would be disregarded capital gains under subsection 855-10(1) of the ITAA 1997?

Answer

No.

Question 3

Will the Commissioner confirm that any present entitlement and/or distribution to Company Y and Company Z, of the capital gains made on the sale of the Company X shares, entered into by the Trust, will not result in any liability to the Trustee under subsections 98(2) and (3) of the ITAA 1936 and Subdivision 115-C of the ITAA 1997?

Answer

No.

Question 4

Will the Commissioner accept that the Trust is not liable to pay tax to the Commissioner under subsection 98(3) of the ITAA 1936, in respect of the capital gains derived by Company Y and Company Z from the Trust's disposal of the Company X shares?

Answer

No.

Question 5

Will the Commissioner confirm that the Trust will not be liable to Family Trust Distribution tax (FTDT) under Division 271 to Schedule 2F of the ITAA 1936 on the distribution to Company Y and Company Z?

Answer

No.

This ruling applies for the following period:

Year ended 30 June 202X

The scheme commenced on:

1 July 202X

Relevant facts and circumstances

The Trust

The Trust is an Australian resident trust estate during the relevant income years.

The Trust is a discretionary family trust.

The Trust was not a fixed trust during the ruling period.

The Trustee is an Australian resident company for the purpose of taxation in Australia.

The Trust was established to hold some of the assets of particular members of the family, via those assets being settled/gifted into trust well before to their permanent departure from Australia. These assets were placed into trust to allow them to continue to be held for the long term and to allow a smoother transition of ownership in the future.

The Trust owns shares as long-term investments in various companies. The Trust owns other units and shares, in addition to the Company X shares.

The Trust was established to hold shares and units and not to trade them nor to otherwise seek to enhance value increases.

The Company X shares were not acquired for the purposes of profit making by a subsequent sale.

The Trust held approximately a 25% shareholding in Company X.

The Trust sold some of its Company X shares in the income year.

The Trust remitted a trust distribution each to Company Y and Company Z, during the income year ended 30 June 202X.

Trust Beneficiaries

Company Y and Company Z have, since their incorporation, been non-residents of Australia and will remain so throughout the ruling period. They are wholly owned (directly or through other wholly owned interposed foreign companies) by Mr X and are included as beneficiaries of the Trust.

Company Y and Company Z are non-residents of Australia for tax purposes. They carry on business in their own right.

Relevant legislative provisions

Income Tax Assessment Act 1936 section 95

Income Tax Assessment Act 1936 section 98

Income Tax Assessment Act 1936 section 98A

Income Tax Assessment Act 1936 Division 6E

Income Tax Assessment Act 1936 Schedule 2F

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 6-10

Income Tax Assessment Act 1997 section 15-15

Income Tax Assessment Act 1997 section 102-5

Income Tax Assessment Act 1997 section 115-210

Income Tax Assessment Act 1997 section 115-215

Income Tax Assessment Act 1997 section 115-220

Income Tax Assessment Act 1997 section 115-225

Income Tax Assessment Act 1997 section 855-10

Income Tax Assessment Act 1997 section 855-15

Income Tax Assessment Act 1997 section 855-40

Reasons for decision

Question 1

Any profits or gains that arise for the Trust as a consequence of the sale of Company X shares will not constitute ordinary income according to ordinary concepts for the purposes of section 6-5 of the ITAA 1997 or profits arising from the carrying on of a profit-making undertaking or plan under section 15-15 of the ITAA 1997.

Question 2

The Trust cannot disregard under subsection 855-10(1) of the ITAA 1997 the resident Trust's capital gain on the sale of its shares in Company X that is assessable to them under section 98 of the ITAA 1936, regardless of whether the gain arises from non-TAP or the Trust has non-resident beneficiaries.

Question 3

The Trust is still liable to pay tax under subsection 98(3) of the ITAA 1936 and Subdivision 115-C of the ITAA 1997, on the capital gains made on the sale of the Company X shares by the Australian resident Trust, to which Company Y and Company Z were made presently entitled.

Question 4

As per the reasoning in question 3 above, the Trust is assessed and liable to pay tax under subsection 98(3) of the ITAA 1936, in respect of the Trust's capital gains from the disposal of its Company X shares.

Question 5

The Trust will not be liable for FTDT under Division 271 of Schedule 2F to the ITAA 1936 on the amount of income to which Company Y and Company Z has been made presently entitled and that was distributed to them, in the income year ending 30 June 202X.

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