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Ruling

Subject: Tax obligations for beneficiaries of a non resident discretionary trust

Question 1

Will the liquidation of Q Pty Ltd result in the B Trust deriving amounts which will be assessable to the primary beneficiaries of the trust under section 99B of the ITAA 1936 when those amounts are distributed to them upon the subsequent vesting of the trust?

No

Question 2

Will the liquidation of X Ltd result in the B Trust deriving amounts which will be assessable to the primary beneficiaries of the trust under section 99B of the ITAA 1936 when those amounts are distributed to them upon the subsequent vesting of the trust?

No

Question 3

Will the adjustments in respect of writing off amounts recorded as loans in the balance sheets of the B Trust and X Ltd as of 31 March 2011 have any effect for tax in regard to you in the capacity of a primary beneficiary of the S Trust?

No,

Question 4

Are there other amounts that should be included in your assessable income in the capacity of a primary beneficiary of the B Trust on vesting of the Trust?

No.

This ruling applies for the following period

Year Ended 30 June 2010

Year Ended 30 June 2011

Year Ending 30 June 2012

Year Ending 30 June 2013

The scheme commenced on

03 April 1996

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

You are a resident of Australia for tax purposes.

Mr/Ms Z built a successful business Country-Alpha

Mr/Ms Z held a large parcel of shares in the Country-Alpha listed company N through a structure headed by Q Pty another Country-Alpha listed company and the ultimate holding company.

Mr/Ms Z established the B Trust prior to his/her passing.

Mr/Ms Z gifted all the Q Pty shares into the S Trust.

The value of the gifted shares at the time of transfer to the trust was at least $X

Mr/Ms Z passed away in 19XX

B Trust (the S Trust):

Establishment

Mr/Ms Z established the B Trust on 03 April 1996 in Country-Alpha, prior to his/her passing.

The trustee has a discretionary power to determine the distribution or accumulation of the trust income and capital and the amounts each beneficiaries receives of either the income or capital of the trust and the manner to which it is distributed.

You advise that it was Mr/Ms Z's wishes that the primary purpose of the B Trust was to provide for the future needs of his/her family after his/her passing.

Trustee

The trustee to the B Trust is Q Holdings Limited a company incorporated in Country-Bravo.

The directors of Q as recorded in the Trust deed at the time of setting up the Trust were: Accountant P who was the late Mr/Ms Z's accountant in Country-Alpha and now effectively the sole director.

Director B (who resigned as a director in or about 20XX), and

Director C (who for some years Accountant P has not been able to locate or contact).

The Shareholders in Q are:

Q-A

Q-B

Beneficiaries:

The B Trust Deed sets out that the beneficiaries of the trust means each Primary Beneficiary and each Secondary Beneficiary.

B Trust Deed sets out the "Primary Beneficiary means each of the Spouse of the Settlor, Q-A;

Q-B

Trust Fund

A definition of the "Trust Fund" to mean:

· any additional Property transferred to or vested in the Trustee to be held upon the trusts with and subject to the powers and provisions contained in this document;

· the proceeds of any disposition or other dealing with the Settlement Sum or other Property forming part of the Trust Fund;

· any accumulation of Income made in accordance with this document;

· money lent or advanced to the Trustee for the purposes of the Trust;

· all accretions to, and all income, profits or gains of, any of the Property referred to in paragraphs (a) to (e) of this definition; and

Property of every kind for the time being and from time to time representing the Property referred to in paragraphs (a) to (f) of this definition.

Mr/Ms Z held 100% of the shares Q Pty a company incorporated in Country-Alpha

Q Pty held 100% of the shares in H Investments a company incorporated in Country-Bravo.

On April 1996 Mr/Ms Z transferred all his/her Q Pty shares into the S Trust.

Income of the B Trust - Distribution and Accumulation

According to the B Trust Deed the Trustee may determine to distribute certain income to or among the Primary Beneficiaries or such one or more of them exclusive of the others then living or in existence in such proportions as the Trustee may determine.

B Trust Deed provides that the Trustee may determine to accumulate the income for the accounting period.

B Trust Deed provides that if the Trustee fails to effectively distribute the whole of the income for an accounting period or to accumulate the whole of the income then the income which has not been distributed or accumulated is held by the trustee upon trust absolutely for the Default Income Beneficiaries.

Capital of the B Trust - Distribution and Accumulation

B Trust Deed provides that the Trustee may also determine to distribute such part of the capital as the trustee determines to or among the Primary Beneficiaries or such one or more of them exclusive of the others in such proportions as the Trustee determines.

B Trust Deed provides that on Vesting Date the Trustee holds the Trust Fund upon trust for the Primary Beneficiaries or such one or more of them exclusive of others then living or in existence in such proportions as the Trustee determines prior to the Vesting Date.

Vesting Date

The Vesting date is defined at B Trust Deed and means "the first to occur of:

· the date on which any child of the Settlor (and if more than one the younger;) alive at the Operative Date attains 25 years of age; or

· the date on which the last surviving Primary Beneficiary attains 25 years of age; or

· the 99th anniversary of the Operative Date; or

· the date which the Trustee at any time determines to be the vesting date."

Therefore the B Trust must vest when the youngest comes of age.

You have advised that the Trustee, through the Country-Alpha based Accountant O, that s/he is inclined to vest the B Trust at an earlier date. The date will be in the period that the ruling applies.

Management of B Trust Structure

The Late Mr/Ms Z has left the Country-Alpha based accountant X manage the S Trust, the trustee, K PTY and H Investments.

Mr/Ms Z's wishes were that Accountant P that his/her family be provided with enough money to live on from the structure.

Accountant P has prepared the financial accounts for the entities listed above.

B Trust Investments

Q Holdings Limited was the ultimate holding company of Q Pty, holding all of the shares in Q Pty. Q Holdings Limited is the Trustee of the S Trust

Q Holdings Limited is a non resident company of Australia for Income Tax purposes

Q Pty was incorporated in Country-Alpha and had its registered office in Country-Alpha. It had 100 ordinary shares at 1 Country-Alpha an dollar each as issued capital. Q Pty was wholly owned by the entity

Q Pty Investments Pty Ltd had a 100% equity interest in H Investments.

Q Pty was a non resident company of Australia for Income Tax purposes

Mr/Ms Z transferred (gifted) all his/her shares in the entity to the B Trust (back in 1996 as mentioned).

The value of the shares at the time of transfer to the B Trust was at least $12.

You have provided the draft balance sheet for Q Pty (which were its last accounts before going into liquidation).

The balance sheet showed an amount of $2 described as 'Reserves b/f' The accompanying note (note 2) says these are Capital Reserves arising from restructuring of N Pty shares in 1992 through SK Investments. Both companies were incorporated in Country-Alpha and were/are not residents of Australia.

Q Pty went into liquidation in 2010 and has since been deregistered (so its shares ceased to exist).

The liquidator distributed the assets of the company to the S Trust. This included a distribution in-specie of the company's main asset, being 100% of the shares in H investments.

The S Trust's balance sheet as at 2011 records, under the heading: 'Trust fund', and item described "Capital" and the amount of $12. This represents the value of the Q Pty shares originally gifted to the Trust, by the late Mr/Ms Z(just before s/he died).

The S Trust's draft balance sheet as at 31 march 2011 (before adjustments) also records, under the heading: 'Assets', an item described as "Unquoted equity investments - at fair value (H investments)" and the amount of $26 representing the market value of value of the H investments 8 and the value of loans due to H investments from the B Trust $18. ($8 + 18 = $26)

H Investments is incorporated in Country-Bravo, and was 100% wholly owned by Q Pty.

H Investments is a non resident company of Australia for Income Tax purposes.

Accountant P has prepared financial accounts for H Investments as at March 2011 (prior to the proposed adjustments), that have treated the amounts remitted from H Investments to the beneficiaries in Australia, as loans to the B Trust (and the B Trust had treated those amounts as loans to the beneficiaries).

H has recorded an amount of $18 in its draft balance sheet as at March 2011 as an amount due from Q Holdings Limited

H Investments will write off the amount of $18 recorded under current Assets as "Due from Q Holding Limited" in H Investments draft balance sheets as at March 2011 against various profits (to conform to the Commissioner's view that the amounts remitted to the Australian beneficiaries were distributions of profits and not loans).

S Trust

The S Trust's draft balance sheet as at March 2011 has recorded an amount of $18 under the heading "Liabilities", with the description "other Payables". This figure represents the remittances to the Australian beneficiaries, which the parties had treated as an amount due to the entity from the S Trust.

The S Trust's draft balance sheet as at March 2011 has recorded an amount of $26 under Assets with the description of "Unquoted equity investments - at fair value (H investments Limited)". This represents the shares in H Investments, which were distributed to the Trust on the liquidation of Q Pty , and the value ascribed, includes the value of the underlying investments in H Investments ($8) swelled by the amount of $18 treated as due to H Investments from the Trust (prior to the proposed adjustments).

The trustee intends to write off the $18 portion of the value of the Trust's 'Asset' (being the H Investments shares) against the reduction in its 'Liabilities' of the same amount (being the amount said to be due to H Investments). This is to conform to the Commissioners position previously Established on Audit, that the amounts H Investments remitted to the Australian beneficiaries represented a distribution of H Investment's profits to the beneficiaries and not loans).

The amounts received by the primary beneficiaries through periodic payments since the establishment of the trust to March 2011 is recorded in draft B Trust Balance Sheet as of March 2011 in the following Manner as;

Other Receivables

Q-A $11

Q-B $4

Total $15

Both H Investments and the Trustee of the Trust, are to conform their financial accounts to the Commissioners position previously established on Audit, that the amounts represent a distribution of H Investments profits to the beneficiaries, and as a result, they propose to write off the debt due from beneficiaries of $15 against trust fund amounts describe as "Capital", "Income/Deficit and "Fair value reserves" therefore reducing the Total Trust Fund from $24 to $8.

The Commissioner treated the payments to the Australian beneficiaries as dividends by virtue of section 47A of the ITAA 1936.

Scheme

The Trustee (Q Holdings Ltd) of the B Trust has advised that Q Pty has already be liquidated, and will liquidate H Investments.

The proceeds of that remaining liquidation will be distributed to one or more of the primary beneficiaries of the S Trust. (You are a beneficiary of the S Trust).

H Investments will write off the amount of $18 recorded under current Assets as "Due from Q Holding Limited" in H Investments balance sheets as at March 2011.

The amounts remitted to the Australian beneficiaries, were treated in the accounts of H Investments and the Trust, as being loaned from H Investments to the Trust, and then on-loaned by the B Trust to the Australian beneficiaries Q-A and Q-B..

Q holdings Limited as trustee for the B Trust plans to liquidate the company H investments. The intention is then to distribute the proceeds of the liquidations to one or more of the Primary beneficiaries of the S Trust.

The value of the Q Pty Shares just before liquidation will be about $9 which represents the remaining investments in H Investments.

Relevant legislative provisions

Division 6 of Part III of the Income Tax Assessment Act 1936

Division 6AAA of the Income Tax Assessment Act 1936

Section 44 of the Income Tax Assessment Act 1936

Subsection 44(1) of the Income Tax Assessment Act 1936

Section 47 of the Income Tax Assessment Act 1936

Subsection 47(1) of the Income Tax Assessment Act 1936

Subsection 47(1A) of the Income Tax Assessment Act 1936

Subsection 47(1A)(b) of the Income Tax Assessment Act 1936

Section 47A of the Income Tax Assessment Act 1936

Section 97 of the Income Tax Assessment Act 1936

Section 99B of the Income Tax Assessment Act 1936

Subsection 99B(1) of the Income Tax Assessment Act 1936

Subsection 99B(2) of the Income Tax Assessment Act 1936

Subsection 99B(2)(a) of the Income Tax Assessment Act 1936

Subsection 99B(2)(b) of the Income Tax Assessment Act 1936

Subparagraph 99B(2)(c)(i) of the Income Tax Assessment Act 1936

Subsection 6-5(2) of the Income Tax Assessment Act 1997

Section 6-10 of the Income Tax Assessment Act 1997

Section 10-5 of the Income Tax Assessment Act 1997

Subparagraph 104-25(1)(a) of the Income Tax Assessment Act 1997

Reasons for decision

Detailed reasoning

In respect to the vesting of the B Trust and liquidation of the subsidiary entities

Subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997) provides that the assessable income of an Australian resident includes the ordinary income you derive directly or indirectly from all sources whether in or out of Australia, during an income year.

Section 6-10 of the ITAA 1997 provides that amounts that are not ordinary income may be included in assessable income by under another provision as statutory income.

Section 10-5 of the ITAA 1997 lists provisions that include in your assessable income amounts that are not ordinary income. Included in this/her list are provisions that may apply to the amounts you may receive from the Trust:

· Section 99B of the Income Tax Assessment Act 1936 (ITAA 1936) which deals with property applied for the benefit of beneficiaries

· Section 47 of the ITAA 1936 which deals with liquidation and subsequent distribution to a shareholder in winding up a company.

Income from the trust

Subsection 99B(1) of the ITAA 1936 applies where an amount of trust property is paid to, or applied for the benefit of, a beneficiary during an income year and the beneficiary is a resident at any time during that income year. Where these conditions are satisfied, the amount is included in the assessable income of the beneficiary.

However, subsection 99B(1) of the ITAA 1936 is qualified by subsection 99B(2) of the ITAA 1936 which broadly reduces the amount included in the assessable income of the beneficiary to the extent that it represents:

· corpus of the trust estate - but not an amount that is attributable to income derived by the trust estate which would have been included in the assessable income of a resident taxpayer had it been derived by that taxpayer.

· an amount that would not have been included in the assessable income of a resident taxpayer had it been derived by that taxpayer.

· (ba) an amount is non-assessable non exempt income of the beneficiary

· because of section 802-17 of the ITAA 1997.

· an amount that is or has been included in the assessable income of the beneficiary under section 97 of the ITAA 1936.

· an amount that has been assessed to either the trustee of the trust or the trustee of another trust under Division 6 of Part III of the ITAA 1936, or

· an amount that has been included in the assessable income of a taxpayer under Division 6AAA of Part III of the ITAA 1936.

On the vesting of the trust the conditions in subsection 99B(1) of the ITAA 1936 are satisfied as you will received an amount of trust property during an income year in which you will be a resident.

You the beneficiary satisfies the residency requirement during the relevant year of income and the application of the exclusions in subsection 99B(2) of the ITAA 1936 will need to be considered.

For an amount to be assessable to one of the resident beneficiaries under section 99B, it will be necessary to identify amounts derived by the B Trust that would have been assessable had they been derived by a resident taxpayer.

You have advised that Q Pty has been liquidated and the Trustee intends to liquidate H Investments on or prior to the vesting date.

The proceeds of those liquidations will be distributed to one or more of the primary beneficiaries of the Trust. (You are a beneficiary of the trust).

Section 47 of the ITAA 1936 deals with distributions by a Liquidator.

Subsection 47(1) of the ITAA 1936 deems certain amounts distributed to shareholders by a liquidator in the course of winding up a company to be a dividend, where the amounts distributed by the liquidator represent income derived by the company (whether before or during liquidation) other than income which has been properly applied to replace a loss of paid-up share capital.

Subsection 47(1A) of the ITAA 1936 extends the meaning of "income" for the purposes of subsection 47(1) to include:

· An amount (other than a net capital gain) that is included in the company's assessable income for the year; and

· A net capital gain that would be included in the company's assessable income for the year. For this purpose the capital gain is calculated without regard to indexation and any capital losses are ignored.

Taxation Determination TD 95/10 discusses the application of section 47 of ITAA 1936 in terms of the Archer Brothers principle. This principle arose from the high court case of Archer Bros Pty Ltd (In Vol Liq) v. FC of T 18 ATD 192. Paragraph 2 of TD 95/10 outlines the principle:

"The principle is that if a liquidator appropriates (or 'sources') a particular fund of profit or income in making a distribution (or part of a distribution), that appropriation ordinarily determines the character of the distributed amount for the purposes of section 47 and other provisions of the Income Tax Assessment Act 1936 (the Act)."

Further to this, paragraph 4 states that the principle applies if:

"(i) the company accounts have been kept so that a liquidator can clearly identify a specific profit or fund in making a distribution; and

(ii) it is clear from either the accounts or statements of distribution that the liquidator has appropriated the specific profit or fund in making the distribution."

In your case from the information provided that the company records have been kept in a way which clearly identifies a specific profit or fund.

From the information provided it is clear that upon liquidation the company may have balances in the capital profits reserve, paid-up capital, and retained profits.

Based on the Archer Brothers principle we need to determine which amounts distributed to the shareholders on liquidation of the company will be considered a return of capital or a distribution of income or profits.

Paid-up Capital:

The distribution of paid-up capital balance is not a deemed dividend for the purposes of subsection 47(1) as it is a return of capital to the shareholders.

Capital Profits Reserve:

The balance is made up of pre-CGT profits on the sale of various assets. This amount represents non-assessable capital gains and therefore when distributed to the shareholders is not a deemed dividend for the purposes of subsection 47(1).

Retained profits:

The balance of the distributable funds appears to be out of retained profits. Amounts distributed out of these funds to shareholders upon liquidation are considered a deemed dividend for the purposes of subsection 47(1).

Taxation Determination TD 2000/5 outlines the order in which distributions should be made out of appropriated funds for the purposes based on the Archer Brothers principle:

Distributable Funds

Less: Amounts not deemed a dividend for purposes of subsection 47(1):

Paid-up Capital

Capital Profits Reserve (Pre CGT gains)

Equals: Amount deemed a dividend for the purposes of subsection 47(1)

Question 1

Will the liquidation of Q Pty Investments Pte Ltd result in the B Trust deriving amounts which will be assessable to the primary beneficiaries of the trust under section 99B of the ITAA 1936 when those amounts are distributed to them upon the subsequent vesting of the trust?

No

Reasons for Decision

Under the scheme it is accepted that the liquidator would not receive any further assessable amounts Q Holdings as these amounts will be written off against the distributions already made in earlier years under subsection 47(1) of the ITAA 1936. Accordingly the value of the Q Pty shares would be around $9 and the original acquisition value $12. Accordingly there would be no capital proceeds assessable under subsection 47(1) of the ITAA 1936. Any distribution in these circumstances would constitute an distribution from the corpus and that would be exempted by subsection 99B(2) of the ITAA 1936.

Question 2

Will the liquidation of H Investments Ltd result in the B Trust deriving amounts which will be assessable to the primary beneficiaries of the trust under section 99B of the ITAA 1936 when those amounts are distributed to them upon the subsequent vesting of the trust?

No

Reasons for Decision

The liquidator will recover no amount in relation to the asset 'Due from Q Holdings Ltd', and as such there would be no amount of trust property that can be said to be reasonably attributable to a capital gain that arises from the cancellation of the shares in H Investments.

Therefore as there would be no distribution that is deemed to be dividend and the liquidator will source any distribution from any one or more of the following accounts:

· share capital

· share premium account, or

· capital reserves,

no part of the liquidator's distribution would be deemed to be a dividend under subsection 47(1) of the ITAA 1936 and no amount will be assessable under section 99B of the ITAA 1936.

Question 3

Will the adjustments in respect of writing off amounts recorded as loans in the balance sheets of the B Trust and H Investments Ltd as of March 2011 have any effect for tax in regard to you in the capacity of a primary beneficiary of the S Trust?

No,

Reasons for Decision:

Accountant P has prepared financial accounts for the entities

The S Trust's draft balance sheet as at March 2011 has recorded an amount of $18 under Liabilities with the description "other Payables. This figure represents an amount due to H Investments from the S Trust.

The S Trust's draft balance sheet as at March 2011 has recorded an amount of $26 under Assets with the description of "Unquoted equity investments - at fair value (H investments Limited)". This figure includes the amount of $18 the amount received from H Investments.

The liquidator intends to write off the Currency$18 recorded in the B Trust balance sheet as at March 2011 under assets and liabilities to conform to the Commissioners position previously established on Audit that the amounts represent a distribution of H Investments profits to the beneficiaries.

The amounts received by the primary beneficiaries through periodic payments since the establishment of the trust to March 2011 is recorded in draft B Trust Balance Sheet as of March 2011 in the following Manner as;

Other Receivables (CURRENCY)

Q-A $11

Q-B $4

Total $15

The liquidator intends to conform to the Commissioners position previously on Audit that the amounts represent a distribution of H Investments profits to the beneficiaries and write off the debt due from beneficiaries of $15 against trust fund amounts describe as "Capital", "Income/Deficit and "Fair value reserves" therefore reducing the Total Trust Fund from $24 to $8.

The Commissioner treated the payments as dividends under section 44 of the ITAA 1936 by virtue of section 47A of the ITAA 1936, as:

· The recipient taxpayers were associated entities of H Investments, and

· H Investments is a Controlled Foreign Company, and

· H Investments had profits immediately before each distribution and the payments are out of the profits, and

· The payments are a distribution benefit, as they are a 'transfer of property for no consideration", and

· Each distribution that was not otherwise a dividend is taken to be a dividend and would be included in your assessable income under section 44 of the ITAA 1936 in the income tax years prior to vesting.

In our view the decision in ATO ID 2008/155 can be applied to assist in the interpretation to the relevant amounts paid to the taxpayer which were deemed dividends under subsection 47A(1) and included in assessable income under subsection 44(1) of the ITAA 1936.

The issue in ATO ID 2008/155 was whether an amount (constituting property of a trust estate) paid to a resident beneficiary can be included in the assessable income of the beneficiary under subsection 99B(1) of the ITAA 1936 if the relevant amount is / was included in the beneficiary's assessable income under section 97 of the ITAA 1936.

The ATO ID says that where a beneficiary of a non-resident trust estate is presently entitled to a share of the net income of the trust estate and is not under a legal disability, then pursuant to section 97 of the ITAA 1936, an amount is included in their assessable income for the purposes of subparagraph 99B(2)(c)(i) of the ITAA 1936, irrespective of whether or not that amount has been included in the relevant income tax return of the beneficiary. Reference is made to section 6-10 of the ITAA 1997 in support of this proposition. It is noted that subsection 6-10(1) provides that a taxpayer's assessable income also includes some amounts that are not ordinary income and that these amounts are included in assessable income by provisions about assessable income. Subsection 6-10(2) of the ITAA 1997 provides that amounts that are not ordinary income but are included in a taxpayer's assessable income by provisions about assessable income are called statutory income.

We note that the decision in ATO ID 2008/156 further supports this proposition.

Subsection 44(1) of the ITAA 1936 (Shareholder assessable income) provides:

The assessable income of a shareholder in a company (whether the company is a resident or a non-resident) includes:

(a) if the shareholder is a resident:

(i) dividends …that are paid to the shareholder by the company out of profits derived by it from any source...

In this case, it is accepted that, through the deeming of subsection 47A(1), the relevant amounts paid to the taxpayer during the income years ending 30 June 2005 to 30 June 2009 and prior income years (out of profits) constitute dividends paid to the taxpayer for the purposes of section 44 of the ITAA 1936.

Following the reasoning in ATO ID 2008/155, these amounts are/were included in the assessable income of the taxpayer in the respective income years pursuant to subsection 44(1), notwithstanding that these amounts/dividends were not included in the taxpayer's income tax returns for the relevant income years.

In summary, where an amount(s) was / were paid to the taxpayer out of profits of the CFC (called the 'original profits') and those distributions / amounts were deemed dividends under subsection 47A(1) of the ITAA 1936, then by virtue of section 44 / subsection 44(1) of the ITAA 1936, such amounts were / are included in the taxpayer's assessable income for the relevant income years.

Question 4

Are there other amounts that should be included in your assessable income in the capacity of a primary beneficiary of the B Trust on vesting of the Trust?

No.

Reasons for Decision:

You have received amounts in the capacity of primary beneficiaries of the B Trust through periodic payments since the establishment of the trust in April 1996 and up to 31 March 2011.

The total amount you received is recorded in the B Trust Balance Sheet as of
31 March 2011 with the description Other Receivables and form part of the amount recorded in the draft H Investments balance sheet under current Assets as "Due from Q Holding Limited" in H Investments draft balance sheets as at March 2011.

The commissioner has previously reviewed these transactions and treated the payments you received as dividends under section 44 of the ITAA 1936 by virtue of section 47A of the ITAA 1936 for the periods ending 30 June 2005 to 30 June 2009.

Based on the information you have provided there will be no further assessable distributions from the trust.