Taxation Ruling

TR 2015/4

Income tax: CGT small business concessions: unpaid present entitlements and the maximum net asset value test

  • Please note that the PDF version is the authorised version of this ruling.
    There is a Compendium for this document: TR 2015/4EC .

Contents Para
LEGALLY BINDING SECTION:
 
What this Ruling is about
Definitions
Ruling
Date of effect
NOT LEGALLY BINDING SECTION:
 
Appendix 1: Explanation
Appendix 2: Detailed contents list

Preamble

Exclamation This publication provides you with the following level of protection:

This publication (excluding appendixes) is a public ruling for the purposes of the Taxation Administration Act 1953.

A public ruling is an expression of the Commissioner's opinion about the way in which a relevant provision applies, or would apply, to entities generally or to a class of entities in relation to a particular scheme or a class of schemes.

If you rely on this ruling, the Commissioner must apply the law to you in the way set out in the ruling (unless the Commissioner is satisfied that the ruling is incorrect and disadvantages you, in which case the law may be applied to you in a way that is more favourable for you - provided the Commissioner is not prevented from doing so by a time limit imposed by the law). You will be protected from having to pay any underpaid tax, penalty or interest in respect of the matters covered by this ruling if it turns out that it does not correctly state how the relevant provision applies to you.

What this Ruling is about

1. This Ruling sets out the Commissioner's views on how an unpaid present entitlement (UPE) of a beneficiary connected with a trust is treated for the purposes of working out whether the trust satisfies the maximum net asset value test in section 152-15 of the Income Tax Assessment Act 1997 (ITAA 1997).[1]

2. Although this Ruling specifically considers the situation where the trust is working out whether it satisfies the maximum net asset value test, the propositions in this Ruling apply equally to calculating the net value of the CGT assets of a trust under paragraphs 152-15(b) or (c) where it is 'connected with'[2] another entity seeking to satisfy the maximum net asset value test, or the other entity's affiliate.

Definitions

3. The following terms are used in this Ruling as defined:

absolutely entitled Where a connected beneficiary is absolutely entitled to a CGT asset as against the trustee of a trust, as that phrase is used in the CGT provisions in Parts 3-1 and 3-3.
connected beneficiary A beneficiary that is 'connected with'[3] a trust that is seeking to apply the small business CGT concessions.
sub-trust A separate trust on which the amount of a beneficiary's UPE from another trust (called the main trust) is held, and in respect of which the beneficiary is the sole beneficiary.

'Sub-trust' takes the same meaning as in TR 2010/3,[4] but in this context is not limited to private company beneficiaries.

UPE A connected beneficiary's right to receive an amount of trust income and/or capital[5] that:

(a)
arises as a result of the beneficiary having been made presently entitled to that amount, and
(b)
has not been satisfied (including by being paid to or as directed by the beneficiary, or by being effectively converted into a loan from the beneficiary) or effectively disclaimed.

Ruling

4. Where a connected beneficiary has a UPE to receive an amount of income or capital from a trust, the value of that UPE[6] will be included once, and once only, in determining whether or not that trust satisfies the maximum net asset value test in section 152-15. The way in which the value of that UPE is so included will vary depending on the character of the beneficiary's entitlement and the way that funds representing the UPE are held.

Sub-trust

5. Where the funds representing the connected beneficiary's UPE have been set aside on a separate trust (the sub-trust), the net asset value calculation for the main trust will include the following:

·
in the net value of the CGT assets of the main trust - no amount is taken into account in respect of the UPE; the funds representing the UPE are not relevant assets of the trust and the trustee does not have any liability related to trust assets in respect of the UPE
·
in the net value of the CGT assets of the sub-trust (which is an entity connected with the main trust within the meaning of section 328-125) - the funds representing the UPE form part of the sub-trust's assets that are taken into account, without any corresponding liability, and
·
in the net value of the CGT assets of the connected beneficiary - in these circumstances, the value of the UPE is not taken into account, being an asset that is disregarded under paragraph 152-20(2)(a).

No sub-trust

6. Where funds representing the connected beneficiary's UPE have not been set aside on sub-trust, the net asset value calculation for the main trust will include the following:

·
in the net value of the CGT assets of the trust - the value of the funds representing the UPE are included in the trust's assets, but for the purposes of paragraph 152-20(1)(a) are reduced by a corresponding liability of the trustee to pay the amount of that entitlement, and
·
in the net value of the CGT assets of the connected beneficiary - the UPE is an asset of the beneficiary that is not disregarded under paragraph 152-20(2)(a).

Absolutely entitled

7. Where a connected beneficiary's UPE is an absolute entitlement to one or more trust assets, paragraphs 5 and 6 of this Ruling do not apply and the net asset value calculation for the trust will include the following:

·
in the net value of the CGT assets of the trust - no amount is taken into account in respect of the UPE: any asset that the connected beneficiary has an absolute entitlement to receive is taken not to be a relevant asset of the trust and the trustee does not have any liability related to trust assets in respect of the UPE, and
·
in the net value of the CGT assets of the connected beneficiary - provided that it is not disregarded under subsection 152-20(2), the value of any asset to which the connected beneficiary is absolutely entitled to receive is taken into account as an asset of that connected beneficiary.

Example 1 - Sub-trust

8. The Shiny Artichoke Trust carries on a business of producing plastic display vegetables and other plastic products.

9. In the 2013 income year, the trust derives $3 million trust income. On 30 June 2013, Trusty Co (the trustee of the Shiny Artichoke Trust) resolves to make Emmett (a connected beneficiary) presently entitled to 100% of the trust's income. Trusty Co resolves to set aside the amount on sub-trust for Emmett's sole benefit. It records in the accounts of the Shiny Artichoke Trust that the amount is held on sub-trust for Emmett.

10. The trust deed of the Shiny Artichoke Trust provides that while a beneficiary's entitlement is held on sub-trust, the trustee may invest the property of the sub-trust as it sees fit. Trusty Co uses the $3 million held on sub-trust for Emmett to invest in shares.

11. On 1 December 2013, the Shiny Artichoke Trust makes a capital gain on the sale of a factory. It seeks to apply the small business concessions to reduce that gain. It may qualify for relief if it satisfies the maximum net asset value test in section 152-15 (see subparagraph 152-10(1)(c)(ii)).

12. Being held on sub-trust, the $3 million no longer forms part of the assets of the Shiny Artichoke Trust. Accordingly, in calculating the net value of the Shiny Artichoke Trust's CGT assets, the amount of Emmett's UPE will not be accounted for as an asset or liability. The other CGT assets of the Shiny Artichoke Trust have a total market value of $5 million just before the CGT event on 1 December 2013.

Net value of CGT assets of Shiny Artichoke Trust
Market value of assets $5 million
Liabilities related to assets Nil
Net value $5 million

13. The sub-trust is connected with the Shiny Artichoke Trust, and therefore the net value of the CGT assets of the sub-trust will be included in the net asset value of the Shiny Artichoke Trust under paragraph 152-15(b). The assets of the sub-trust consist of the $3 million in shares being held for Emmett. Emmett is entitled to that corpus and any income derived thereon. In these circumstances, there is no presently existing obligation on the sub-trust to pay $3 million to Emmett. The sub-trust does not have any relevant legal or equitable liability related to its assets.

Net value of CGT assets of sub-trust
Market value of assets $3 million
Liabilities related to assets Nil
Net value $3 million

14. Emmett is a connected beneficiary of the Shiny Artichoke Trust, so the net value of his CGT assets must be taken into account in calculating that trust's net asset value. Emmett's right to payment of his UPE from Trusty Co (as trustee of the sub-trust) is a CGT asset, but as a relevant 'interest' in the sub-trust for the purposes of paragraph 152-20(2)(a), it is a disregarded asset. The value of the UPE is therefore not included in the net value of Emmett's CGT assets.

Net value of CGT assets of Emmett
Market value of assets Nil
Liabilities related to assets Nil
Net value Nil

15. The net asset value of the Shiny Artichoke Trust will therefore be the same as determined for Example 1.

Net asset value of Shiny Artichoke Trust
Net value of CGT assets of Shiny Artichoke Trust $5 million
Net value of CGT assets of sub-trust $3 million
Net asset value $8 million

16. As Shiny Artichoke Trust's net asset value exceeded $6 million just before the CGT event, it does not satisfy the maximum net asset value test in section 152-15 and is not entitled to CGT small business relief under Division 152.

Example 2 - No sub-trust

17. Assume the same facts as Example 1, except rather than setting aside the amount of Emmett's UPE on sub-trust, Trusty Co records the amount as owing to Emmett in the books of account of the trust, and leaves it commingled with other trust funds.

18. Trusty Co's obligation as trustee of the Shiny Artichoke Trust to pay Emmett $3 million is a liability within the meaning of paragraph 152-20(1)(a). The liability is related to the CGT assets of the trust, and is subtracted from their market value in determining the net asset value of the trust's CGT assets just before the CGT event.

Net value of CGT assets of Shiny Artichoke Trust
Market value of assets $8 million
Liabilities related to assets ($3 million)
Net value $5 million

19. As Emmett is a connected beneficiary of the Shiny Artichoke Trust, the net value of his CGT assets must be taken into account in calculating the trust's net asset value in accordance with paragraph 152-15(b). Emmett's right to payment of his UPE is a CGT asset. The UPE is not a share, unit or other interest that is disregarded under paragraph 152-20(2)(a), so the market value of the UPE is included in the net value of Emmett's CGT assets. Emmett has no other CGT assets relevant to determining this value.

Net value of CGT assets of Emmett
Market value of assets $3 million
Liabilities related to assets Nil
Net value $3 million

20. The net asset value of the Shiny Artichoke Trust is obtained by adding together the net value of it and Emmett's CGT assets.

Net asset value of Shiny Artichoke Trust
Net value of CGT assets of Shiny Artichoke Trust $5 million
Net value of CGT assets of Emmett $3 million
Net asset value $8 million

21. As Shiny Artichoke Trust's net asset value exceeded $6 million just before the CGT event, it does not satisfy the maximum net asset value test in section 152-15 and is not entitled to CGT small business relief under Division 152.

Date of effect

22. This Ruling applies to years of income commencing both before and after its date of issue. However, this Ruling does not apply to taxpayers to the extent that it conflicts with the terms of settlement of a dispute agreed to before the date of issue of this Ruling (see paragraphs 75 to 76 of Taxation Ruling TR 2006/10). It also does not apply in circumstances where a taxpayer takes a position inconsistent with it (for example, by taking a position consistent with some of the dot-points but not others in paragraph 5 of this Ruling).

Commissioner of Taxation
25 November 2015

Appendix 1 - Explanation

Exclamation This Appendix is provided as information to help you understand how the Commissioner's view has been reached. It does not form part of the binding public ruling.

Background

Maximum net asset value test

23. To qualify for any one of the small business CGT concessions in Division 152, an entity must satisfy a number of basic conditions in subsection 152-10(1). One such condition is the maximum net asset value test.[7]

24. Broadly, the maximum net asset value test seeks to treat a small business entity and all of its related entities as if they were a single economic unit, for the purposes of determining whether its size is below the relevant statutory threshold.[8] Specifically, an entity satisfies the maximum net asset value test if, just before the relevant CGT event, the net value of its CGT assets and those of its connected entities and affiliates is $6 million or less.[9]

25.The 'net value of the CGT assets' of an entity is defined as being the sum of the market values of those assets less the sum of the liabilities related to those assets and certain leave and other provisions.[10] Because the maximum net asset value test totals the net assets of each of the entities in the relevant group, there are also specific provisions to ensure that value otherwise reflected in more than one entity is not double counted.[11] Specifically, any 'shares, units or other interests (except debt)' that an entity holds in a connected entity or an entity connected with an affiliate are disregarded.[12]

UPEs

26. When determining the net asset value of a trust, the following issues arise in relation to the treatment of a UPE:

·
is the UPE a liability that can be taken into account in working out the net value of the assets of the trust, and
·
is the UPE disregarded when working out the net value of the assets of the connected beneficiary.

27. In considering these issues, it should be remembered that in treating relevantly connected entities and affiliates as a single economic unit for the purposes of the maximum net asset value test, special rules have been provided to avoid double counting.[13] In this context, if a UPE were to be counted in the net value of the assets of a connected beneficiary, then a corresponding liability should be taken into account in the net value of the assets of the trust to avoid double counting. But equally, if a UPE were disregarded from the net value of the assets of a connected beneficiary, it would not be appropriate to recognise a liability in the trust, as the value of the trust assets to which a beneficiary with a UPE is entitled would not then be accounted for anywhere in the net asset value of the single economic unit comprising the trust and connected beneficiary.

28. While the net outcome is the same in each case, the technical reasoning differs depending on whether:

·
the connected beneficiary is absolutely entitled to one or more trust assets
·
the trustee has a presently existing obligation to pay the amount to which the connected beneficiary is entitled, and
·
the trustee has set an amount aside on sub-trust for the connected beneficiary, such that the amount to which the connected beneficiary is presently entitled has become the corpus of a separate trust.

29. This Ruling is divided into three parts to explain how the trust's net asset value will be calculated in three common scenarios:

·
Part A: Sub-trust: the connected beneficiary is not absolutely entitled to any trust asset, but the trustee has set aside the amount of the connected beneficiary's UPE on sub-trust
·
Part B: No sub-trust: the connected beneficiary is not absolutely entitled to any trust asset, and the amount of the UPE has not been set aside on sub-trust, and
·
Part C: Absolutely entitled: the connected beneficiary is absolutely entitled to one or more trust assets.

Part A: Sub-trust

30. While a UPE remains outstanding, trust property representing that UPE may be held on sub-trust solely for the connected beneficiary.

31. The terms on which a UPE is held on sub-trust may vary, but generally, where a UPE is held on sub-trust:

·
the trustee continues to have legal title to the property held on sub-trust, but in its capacity as trustee of the sub-trust (sub-trustee) rather than as trustee of the original trust (main trust)[14]
·
the property representing the UPE no longer forms part of the trust fund of the main trust, and
·
the connected beneficiary has an interest in the entire corpus of the sub-trust (and typically any income derived thereon) which it may demand payment of.

32. The net value of the CGT assets of the sub-trust (including the UPE) will then be included in calculating the net asset value of the main trust if the sub-trust is 'connected with' the main trust for the purposes of section 328-125.

Is the sub-trust 'connected with' the main trust?

33. Where the amount of a connected beneficiary's UPE is held on sub-trust, the connected beneficiary is the sole beneficiary of that trust, with all the interests to distributions of its income and capital. Accordingly, the connected beneficiary controls the sub-trust.[15]

34. A sub-trust will therefore be connected with the main trust in one of three ways:

·
if the connected beneficiary is connected with the main trust because it is 'controlled' by the main trust - then the main trust will also indirectly control the sub-trust[16]
·
if the connected beneficiary is connected with the main trust because it 'controls' the main trust - then the connected beneficiary controls both the sub-trust and main trust, and being controlled by a common entity, the sub-trust is connected with the main trust,[17] and
·
if the connected beneficiary is connected with the main trust because it and the main trust are 'controlled' by the same third party - then the third party will be treated as controlling any entity that the connected beneficiary controls,[18] and will therefore control both the sub-trust and main trust. Being controlled by a common entity, the sub-trust is likewise connected with the main trust.[19]

35. Thus in every situation where the main trust has placed a UPE of a connected beneficiary on sub-trust, that sub-trust will be 'connected with' the main trust and included in its net asset value calculation.

36. The main trust's net asset value under section 152-15 will therefore be calculated as follows.

Net value of the CGT assets of the main trust

37. The property representing the UPE has left the main trust, and now forms part of the assets of the sub-trust. Accordingly, the main trust will not have any asset or liability in respect of the UPE.

Net value of the CGT assets of the sub-trust

Is the UPE a liability of the sub-trust?

38. TD 2007/14[20] explains that the word 'liabilities' in paragraph 152-20(1)(a) takes its ordinary meaning, and extends to:


legally enforceable debts due for payment and to presently existing legal or equitable obligations to pay either a sum certain or ascertainable sums.[21]

39. Where the amount of a UPE has been set aside on sub-trust, there is no presently existing legal or equitable obligation on the sub-trustee to pay an amount to the connected beneficiary. Rather, the entitlement has been dealt with by being so set aside and the existence of any further obligation in these circumstances is contingent on the connected beneficiary exercising their right as sole beneficiary to call for transfer of all the property of the sub-trust to them.[22] Until then, the trustee of the sub-trust is simply holding the funds (being its trust corpus) on trust for the connected beneficiary, subject to the relevant terms of that trust.

40. The sub-trust therefore will not have any liability in respect of the UPE for the purposes of paragraph 152-20(1)(a). But as the amount of the UPE is sitting amongst the funds of the sub-trust, its value will be counted as part of the sub-trust's assets.

41. Note even if the UPE were regarded as a relevant liability of the sub-trust, then, as an obligation due in equity and therefore a relevant debt for the purpose of paragraph 152-20(2)(a), it would no longer be a disregarded asset of the connected beneficiary. Accordingly, the net result would be the same as outlined above.

Net value of the CGT assets of the connected beneficiary

Is the UPE a CGT asset of the connected beneficiary?

42. A CGT asset is defined broadly as any kind of property or legal or equitable right that is not property.[23]

43. A beneficiary with a UPE held on sub-trust has an equitable right to call for payment of the corpus of that sub-trust (and often also the income generated thereon). That equitable right is a CGT asset within the definition in subsection 108-5(1).

44. However, that asset is disregarded if it is an 'other interest' within the meaning of that term in the expression 'share, unit or other interest' in paragraph 152-20(2)(a).

45. 'Other interests' (or 'interests' alone) is not defined in the ITAA 1997. As a statutory term, it must be considered in the context in which it appears.[24] As expressed by Lord Hoffman in the House of Lords decision of R v. Brown:


The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence ... This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.[25]

46. The term 'other interests' is part of the phrase 'shares, units or other interests'. As such, it is appropriate to consider its meaning as part of that complete phrase rather than the word 'interests' in isolation.

47. 'Shares' and 'units' are a narrow subset of what might generally be called 'interests'. A 'share' has been broadly described as an aliquot[26] interest of a shareholder in a company, with reference to which the shareholder has certain rights.[27] It is comprised of a bundle of rights,[28] which may include rights to participate in dividends while the company is a going concern and the right to participate in the distribution of assets available to shareholders upon a winding up.[29]

48. A 'unit' is not defined in the ITAA 1997, but has been judicially described as an 'aliquot share or interest in the undivided assets of a trust'.[30] Like a share, a unit gives the unit holder a parcel of rights, which may include rights to participate in the trust fund including a right to share in trust income and rights in individual trust assets. Like a share, it is typically an interest 'in which a taxpayer invests'.[31]

49. Thus 'shares' and 'units' are both members of a class of 'interest' which wholly divides up the equity or capital of an entity into portions. The holder of such an interest usually has not just one right but a bundle of rights that include rights to participate in things which may happen in the future and the entirety of which represents something like an investment stake in the entity.

50. Considering 'shares, units or other interests' as a complete phrase would suggest that 'other interests' takes on a meaning akin to 'shares' and 'units'. That is, the more general phrase 'other interests' is constrained by reference to the more specific category that 'shares' and 'units' denotes.

51. A connected beneficiary with a UPE held on sub-trust is the sole beneficiary of that sub-trust, and has a fixed interest in the trust property. Often, it will also have rights to the income generated from investment of the trust corpus. The interest of a connected beneficiary in a sub-trust therefore bears some similarity in nature to a 'unit' or 'share' and is a relevant 'other interest' for the purposes of paragraph 152-20(2)(a). The value of the interest is thus disregarded in calculating the net value of the CGT assets of the connected beneficiary.

Summary

52. Where a UPE is held on sub-trust for a connected beneficiary who is not absolutely entitled to any main trust asset, the section 152-15 net asset value calculation for the main trust will be as follows:

·
at the main trust level - no amount will be included as an asset or liability in respect of the UPE
·
at the sub-trust level - the UPE will be included in the assets of the sub-trust, and
·
at the connected beneficiary level - the connected beneficiary's interest in the sub-trust is a disregarded asset, so the value of the UPE will not be included in the connected beneficiary's assets.

Part B: No sub-trust

Net value of the CGT assets of the trust

Is a UPE a liability of the trustee?

53. Where the amount of a connected beneficiary's UPE has not been placed on sub-trust and the connected beneficiary is not absolutely entitled to any trust asset, all that exists is an equitable obligation on the trustee to pay the connected beneficiary an amount of trust income or capital. That is a presently existing equitable obligation to pay a sum certain or an ascertainable sum that is a 'liability' within the meaning of paragraph 152-20(1)(a).

54. In determining the net value of the trust's CGT assets, that liability is subtracted from the sum of the market values of those assets if it is 'related to the assets'.[32]

55. A UPE is an equitable obligation on the trustee in respect of trust assets (typically, it is an obligation to pay, apply, or set aside certain trust assets or a sum from trust assets - most often a specific amount of income or capital of the trust for the benefit of a particular beneficiary). At its core, it results from an appointment of income or capital made under the terms of the trust, of particular trust assets or a particular sum to be paid from trust assets. In a broad sense, it is an entitlement to a relevant share of the trust fund itself; and in this broad sense relates to the trust fund (and therefore the assets of the trust).

56. This is consistent with comments made in obiter by the Full Federal Court in Bell, that in the ordinary case where a UPE exists and must be satisfied from trust assets, that liability will relate to the assets of the trust, notwithstanding the beneficiary's typical inability to call for any specific trust asset to be paid to them.[33]

57. However, the key liability under consideration in Bell was not actually an obligation to pay a UPE but rather an obligation to repay a loan taken out to fund payment of a UPE. The Court observed:


If the outlay, made with borrowed funds, was to purchase an asset, then the liability represented by the borrowing would relate to the asset, but only for so long as that asset was held by the Trust. If the borrowing was for another purpose, such as to discharge an income tax obligation (and was immediately and identifiably used only for that purpose), the corresponding liability would not, in our view, relate to any asset of the Trust.[34]

58. Whether a UPE relates to the CGT assets of an entity will ultimately depend on the facts and circumstances of the particular case. An obligation to pay a UPE as defined in paragraph 3 of this Ruling will relate to trust assets within the meaning of paragraph 152-20(1)(a) if the entitlement is to a part of the trust fund (that is, to a particular item or amount of the income or capital of the trust fund).

59. The relationship is different in cases where the parties agree to treat the amount of the UPE as a debt at common law owed by the trust to the beneficiary,[35] or this is effected by the terms of the trust deed.[36] In such cases, the UPE is replaced by a liability of the trustee to repay the loan (plus interest, if any). As Bell itself indicates,[37] whether a liability to repay a borrowing of the trust relates to the assets of the trust is dependent on the use to which the borrowed funds are put.

Net value of the CGT assets of the connected beneficiary

Is a UPE a CGT asset of the connected beneficiary?

60. A connected beneficiary with a UPE has an equitable right to receive an amount of trust income or capital. That equitable right is a CGT asset within the definition in subsection 108-5(1).

61. But as noted above, that asset is disregarded if it is an 'other interest' within the meaning of that term in paragraph 152-20(2)(a).

62. A UPE that is not held on sub-trust represents a beneficiary's right to receive a particular amount of trust income or capital, but no kind of investment-like interest in the trust itself. It is a complete, (unapportioned and undivided) one-off right to demand immediate payment, as opposed to a bundle of rights that typically include the right to participate in future happenings (as would be the case if the funds representing the UPE were instead set aside on a separate sub-trust).

63. By nature, a UPE not held on sub-trust is therefore not sufficiently akin to the interests represented by shares and units.

64. Moreover, unlike a typical share or a unit, counting such a UPE as a relevant asset of the beneficiary will not result in a double counting of the assets of a relevant economic unit in respect of which the maximum net asset value test is being applied.[38] This is because a liability corresponding to the beneficiary's UPE will be recognised at the trust level, and eliminates any potential double counting of the value of the UPE.

65. Excluding a UPE from being a relevant 'other interest' that is disregarded in working out the net value of the CGT assets of an entity is therefore consistent with the intended purpose of paragraph 152-20(2)(a).

66. A UPE not held on sub-trust is therefore not relevantly akin to a share or unit and not an 'other interest' for the purposes of paragraph 152-20(2)(a). Accordingly, it is taken into account in working out the net asset value of the connected beneficiary.

Is a UPE a 'debt'?

67. Even if a UPE that is not held on sub-trust is a relevant 'other interest' (which the Commissioner does not accept), it is still specifically excluded from the scope of paragraph 152-20(2)(a) (so will be included in calculating the net asset value of the connected beneficiary) if it is a relevant 'debt'.

68. The word 'debt' must be interpreted in the context in which it appears, with regard to the purpose of the provision in which it is used.[39] For example, in GE Crane Menzies J (Barwick CJ, McTiernan, Walsh and Gibbs JJ agreeing) considered that the term 'debt' used in the former bad debt deduction provisions[40] should not be interpreted narrowly to encompass only common law debts, instead deciding that in context it should also include debts due in equity.[41]

69. The equitable obligation on a trustee to pay the amount of a UPE to a beneficiary is not generally a debt at law.[42] However, where a beneficiary has been made presently entitled to income or capital that has come home to the trust, the trustee will be under an equitable obligation to pay such amounts to the beneficiary (as discussed in paragraphs 52 to 54 of this Ruling). Such obligations on the trustee have been referred to by the courts as equitable debts.[43]

70. In the context of provisions that broadly seek to calculate the value of the assets of an economic group of entities net of its liabilities (including present equitable obligations),[44] the specific provisions designed to prevent double counting are not designed to disregard assets which have already been reduced by liabilities of a related entity. Accordingly, assets that would otherwise be disregarded as representing a double counting of value continue to be taken into account if they are debt. In this context, the Commissioner considers that the reference to 'debt' in paragraph 152-20(2)(a) is intended to extend beyond common law debts to include relevant obligations due merely in equity.

71. Accordingly, even if a UPE that is not held on sub-trust is an 'other interest' for the purposes of paragraph 152-20(2)(a) (which is not accepted), it is a relevant 'debt' for the purpose of that provision. The UPE is therefore taken into account in working out the net asset value of the connected beneficiary.

Summary

72. Where a UPE is not held on sub-trust and the connected beneficiary is not absolutely entitled to any trust asset, the section 152-15 net asset value calculation for the trust will be as follows:

·
at the trust level - the value of the UPE will be reflected in the total assets of the trust, but offset by a corresponding liability to pay it to the connected beneficiary, and
·
at the connected beneficiary level - the value of the UPE will be counted as an asset of the connected beneficiary (and not disregarded).

Part C: Absolutely entitled

73. Where the connected beneficiary's UPE comprises an absolute entitlement to one or more trust assets, those assets are treated as the connected beneficiary's assets for various purposes including the maximum net asset value test.[45] The consequences for the trust's net asset value calculation under section 152-15 are as follows.

Net value of the CGT assets of the trust

Is the UPE a liability of the trust?

74. As the assets corresponding to the UPE are treated as held by the connected beneficiary rather than the trust, the trust is taken not to have a presently existing equitable obligation to pay anything to the connected beneficiary in respect of the UPE. Accordingly, the value of the UPE will not be included anywhere in the net value of the CGT assets of the trust as either an asset or a corresponding liability.

Net value of the CGT assets of the connected beneficiary

Is the UPE a CGT asset of the connected beneficiary?

75. The specific trust asset (or assets) to which the connected beneficiary is absolutely entitled will fall within the wide definition of CGT asset in subsection 108-5(1).

76. Subsection 152-20(2) lists particular assets that are disregarded in working on the net value of the CGT assets of an entity.[46] Provided none of these exceptions apply to the specific asset to which the beneficiary is absolutely entitled, the value of the asset will be included in the net value of the CGT assets of the connected beneficiary.

Summary

77. Where a connected beneficiary's UPE is an absolute entitlement to one or more trust assets, the value of the UPE will factor into the trust's net asset value calculation once, as part of the net value of the CGT assets of the connected beneficiary.

Summary of outcomes

78. The net result is the same regardless of whether a UPE is held on sub-trust and regardless of whether the connected beneficiary is absolutely entitled to an asset of the trust as against the trustee: the market value of the UPE (or the funds representing it) will be included once only in the main trust's net asset value calculation under section 152-15, as part of the net value of the CGT assets of either the connected beneficiary or the sub-trust.

79. The following table summarises where the value of the UPE will be factored into calculating the net asset value of the trust (or main trust, where relevant) for each of the scenarios set out in Parts A, B and C of this Ruling:

Part A:

Sub-trust

Part B:

No sub-trust

Part C:

Absolutely entitled

Main trust Assets x . x
Liabilities x . x
Sub-trust Assets . N/A (if any) x
Liabilities x N/A (if any) x
Connected beneficiary Assets x . .
Liabilities x x x

Appendix 2 - Detailed contents list

80. The following is a detailed contents list for this Ruling:

Paragraph
What this Ruling is about 1
Definitions 3
Ruling 4
Sub-trust 5
No sub-trust 6
Absolutely entitled 7
Example 1 - Sub-trust 8
Example 2 - No sub-trust 17
Date of effect 22
Appendix 1 - Explanation 23
Background 23
Maximum net asset value test 23
UPEs 26
Part A: Sub-trust 30
Is the sub-trust 'connected with' the main trust? 33
Net value of the CGT assets of the main trust 37
Net value of the CGT assets of the sub-trust 38
     Is the UPE a liability of the sub-trust? 38
Net value of the CGT assets of the connected beneficiary 42
     Is the UPE a CGT asset of the connected beneficiary? 42
Summary 52
Part B: No sub-trust 53
Net value of the CGT assets of the trust 53
     Is a UPE a liability of the trustee? 53
Net value of the CGT assets of the connected beneficiary 60
     Is a UPE a CGT asset of the connected beneficiary? 60
     Is a UPE a 'debt'? 67
Summary 72
Part C: Absolutely entitled 73
Net value of the CGT assets of the trust 74
     Is the UPE a liability of the trust? 74
Net value of the CGT assets of the connected beneficiary 75
     Is the UPE a CGT asset of the connected beneficiary? 75
Summary 77
Summary of outcomes 78
Appendix 2 - Detailed contents list 80

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You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).

Footnotes

[1]

All legislative references in this Ruling are to the ITAA 1997 unless otherwise specified.

[2]

Within the meaning of section 328-125.

[3]

Within the meaning of section 328-125.

[4]

See paragraph 3 of Taxation Ruling TR 2010/3 Income tax: Division 7A loans: trust entitlements.

[5]

As was the case in Bell v. Commissioner of Taxation [2013] FCAFC 32; 2013 ATC 20-380; (2013) 90 ATR 7 (Bell) at [23].

[6]

Whether as represented by the value of the right the beneficiary has, or the value of the funds or other assets of that trust representing the income or capital that beneficiary has a right to receive.

[7]

Subparagraph 152-10(1)(c)(ii).

[8]

See paragraph 1.12 of the Explanatory Memorandum to the New Business Tax System (Capital Gains Tax) Bill 1999.

[9]

Section 152-15.

[10]

Subsection 152-20(1). Note that certain assets of connected entities and affiliates are excluded: subsections 152-20(2), (3) and (4).

[11]

See paragraph 1.13 of the Explanatory Memorandum to the New Business Tax System (Capital Gains Tax) Bill 1999.

[12]

Paragraph 152-20(2)(a).

[13]

Paragraphs 24 and 25 of this Ruling.

[14]

See paragraph 35 of TR 2010/3.

[15]

Subsection 328-125(2).

[16]

Subsection 328-125(7).

[17]

Paragraph 328-125(1)(b).

[18]

Subsection 328-125(7).

[19]

Paragraph 328-125(1)(b).

[20]

Taxation Determination TD 2007/14 Income tax: capital gains: small business concessions: what 'liabilities' are included in the calculation of the 'net value of the CGT assets' of an entity in the context of subsection 152-20(1) of the Income Tax Assessment Act 1997?

[21]

See paragraph 1 of TD 2007/14. See also paragraph 33 of TD 2007/14 for the observations of the Full Federal Court in Bell.

[22]

Compare East Finchley Pty Limited v. Federal Commissioner of Taxation 89 ATC 5280; (1989) 20 ATR 1623 (East Finchley) at ATC 5290-5291; ATR 1635.

[23]

Subsection 108-5(1).

[24]

Avondale Motors (Parts) Pty Ltd v. FCT (1971) 124 CLR 97 (Avondale Motors) at 105. Particularly in regard to the interpretation of the word 'interest', see also Gartside v. IRC [1968] AC 553 at 617.

[25]

R v. Brown [1996] 1 AC 543 at 561, which has been cited by the High Court in Collector of Customs v. Agfa-Gevaert Ltd (1996) 186 CLR 389 at 397.

[26]

Part of a total, such that if the total is divided by that part there is no remainder. For example, 5 is an aliquot part of 15.

[27]

Borland Trustee v. Steele Bros & Co Ltd [1901] 1 Ch 279 at 288 (endorsed in Sydney Futures Exchange Ltd v. Australian Stock Exchange (1995) 56 FCR 236 per Lockhart J at 255; White v. Shortall [2006] NSWSC 1379 at [193]); Archibald Howie & Others v. Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 at 156; See paragraph 22 of Taxation Ruling TR 94/30 Income tax: capital gains tax implications of varying rights attached to shares.

[28]

See paragraphs 25 and 26 of TR 94/30.

[29]

Archibald Howie & Others v. Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143 at 156 (followed in Sydney Futures Exchange Ltd v. Australian Stock Exchange (1995) 56 FCR 236 per Lockhart J at 255-256; White v. Shortall [2006] NSWSC 1379 at [193]); Austin, RP, Ramsay, IM, Ford's Principles of Corporations Law, LexisNexis Australia, online version last updated January 2015 at 17.350.

[30]

Reef & Rainforest Travel Pty Ltd v. Commissioner of Stamp Duties [2002] 1 Qd R 683 at 688-689.

[31]

See paragraphs 4 and 5 of Taxation Determination TD 2003/28 Income tax: capital gains: does CGT event E4 in section 104-70 of the Income Tax Assessment Act 1997 happen if the trustee of a discretionary trust makes a non-assessable payment to: (a) a mere object; or (b) a default beneficiary?.

[32]

Subsection 152-20(1). See also paragraphs 21 and 22 of TD 2007/14.

[33]

Bell at [33].

[34]

Bell at [39]. See also [41].

[35]

For example by treating the amount of the UPE as having been paid out to the beneficiary and then lent back to the trust, replacing the equitable obligation of the trustee to pay out an amount on demand in satisfaction of the UPE with an obligation at law to repay the loan. That is, what is referred to in Law Administration Practice Statement PS LA 2010/4 Division 7A: trust entitlements as a 'Section two loan'.

[36]

See paragraphs 8 to 15 of TR 2010/3.

[37]

Bell at [39] to [41]

[38]

See discussion at paragraphs 24 to 27 of this Ruling.

[39]

Avondale Motors at 105.

[40]

Former section 63 of the ITAA 1936.

[41]

GE Crane Sales Pty Ltd v. FCT 71 ATC 4268 at 4271.

[42]

Roxborough v. Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68; (2001) 48 ATR 442 (Roxborough) at CLR 541. See also paragraph 34 of TR 2010/3 and paragraph 64 of Self Managed Superannuation Funds Ruling SMSFR 2009/3 Self Managed Superannuation Funds: application of the Superannuation Industry (Supervision) Act 1993 to unpaid trust distributions payable to a Self Managed Superannuation Fund.

[43]

Webb v. Stenton (1883) 11 QB 518 at 525 (Brett MR); 526 (Lindley LJ) and 530 (Fry LJ).

[44]

Paragraphs 24 and 52 to 54 of this Ruling.

[45]

Subsections 106-50(1) and (2).

[46]

Including, for example, shares, units and other interests in another entity connected with the connected beneficiary (paragraph 152-20(2)(a)), or where the connected beneficiary is an individual, assets used solely for the personal use and enjoyment of the connected beneficiary (subparagraph 152-20(2)(b)(i)) or an asset that is the connected beneficiary's main residence (subparagraph 152-20(2)(b)(ii)).

Previously issued in draft form as TR 2015/D2

References

ATO references:
NO 1-6SY0NM5

ISSN: 2205-6122

Related Rulings/Determinations:

TR 94/30
TR 2006/10
TR 2010/3
TD 2003/28
TD 2007/14
TD 2015/20
SMSFR 2009/3

Legislative References:
ITAA 1936
ITAA 1936 63
ITAA 1936 Div 7A
ITAA 1997
ITAA 1997 106-50(1)
ITAA 1997 106-50(2)
ITAA 1997 108-5(1)
ITAA 1997 Div 152
ITAA 1997 152-10(1)
ITAA 1997 152-10(1)(c)(ii)
ITAA 1997 152-15
ITAA 1997 152-15(b)
ITAA 1997 152-15(c)
ITAA 1997 152-20(1)
ITAA 1997 152-20(1)(a)
ITAA 1997 152-20(2)
ITAA 1997 152-20(2)(a)
ITAA 1997 152-20(2)(b)(i)
ITAA 1997 152-20(2)(b)(ii)
ITAA 1997 152-20(3)
ITAA 1997 152-20(4)
ITAA 1997 328-125
ITAA 1997 328-125(1)(b)
ITAA 1997 328-125(2)
ITAA 1997 328-125(7)
TAA 1953

Case References:
Archibald Howie & Others v. Commissioner of Stamp Duties (NSW)
(1948) 77 CLR 143


Avondale Motors (Parts) Pty Ltd v. FCT
(1971) 124 CLR 97
71 ATC 4101
(1971) 2 ATR 312

Bell v. Commissioner of Taxation
[2013] FCAFC 32
2013 ATC 20-380
(2013) 90 ATR 7

Borland Trustee v. Steele Bros & Co Ltd
[1901] 1 Ch 279

Collector of Customs v. Agfa-Gevaert Ltd
(1996) 186 CLR 389
96 ATC 5240

East Finchley Pty Limited v. Federal Commissioner of Taxation
89 ATC 5280
(1989) 20 ATR 1623

Gartside v. IRC
[1968] AC 553

GE Crane Sales Pty Ltd v. FCT
(1971) 26 CLR 177
71 ATC 4268
(1971) 2 ATR 692

R v. Brown
[1996] 1 AC 543

Reef & Rainforest Travel Pty Ltd v. Commissioner of Stamp Duties
[2002] 1 Qd R 683
2001 ATC 4423
(2001) 47 ATR 394

Roxborough v. Rothmans of Pall Mall Australia Ltd
(2001) 208 CLR 516
[2001] HCA 68
(2001) 48 ATR 442

Sydney Futures Exchange Ltd v. Australian Stock Exchange
(1995) 56 FCR 236

Webb v. Stenton
(1883) 11 QB 518

White v. Shortall
[2006] NSWSC 1379

Other References:
Austin, RP, Ramsay, IM, Ford's Principles of Corporations Law, LexisNexis Australia
Explanatory Memorandum to the New Business Tax System (Capital Gains Tax) Bill 1999
Law Administration Practice Statement PS LA 2010/4


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