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Edited version of your written advice
Authorisation Number: 1013038258837
Date of advice: 23 June 2016
Ruling
Subject: Trustee Taxation Rates
Question
Will the Commissioner exercise his discretion under section 99A of the Income Tax Assessment Act 1936 (ITAA 1936) to tax the estate under section 99 of the ITAA 1936?
Answer
Yes.
This ruling applies for the following periods:
Year ended 30 June 2015.
The scheme commences on:
1 July 2014.
Relevant facts and circumstances
The executor was unable to finalise the estate within the recommended three year period due to:
• loss of financial records for many of the estate's investments due to natural disaster
• complicated nature of many of the estate's investments
There has been no intention to obtain a tax advantage in the delayed administration of the estate.
The estate did not acquire any assets after the deceased passed away.
Relevant legislative provisions
Income Tax Assessment Act 1936 section 99.
Income Tax Assessment Act 1936 section 99A.
Reasons for decision
Sections 99 and 99A of the ITAA 1936 apply to assess a trustee on income to which no beneficiary is presently entitled or income which is retained or accumulated by the trustee. In considering these sections, we must first consider section 99A of the ITAA 1936.
Section 99A applies in relation to all trusts unless:
• the trust resulted from a will; subparagraph 99A(2)(a)(i)
• the trust is bankrupt estate; paragraphs 99A(2)(b) and (c)
• the trust is a trust that consists of property referred to in paragraph 102AG(2)(c)
and the Commissioner forms the opinion that it would be unreasonable to apply section 99A in such circumstances.
Subsection 99A(2) of the ITAA 1936 outlines the circumstances when the Commissioner may apply his discretion for section 99A not to apply. The relevant part of subsection 99A(2) states that the discretion may be exercised where a trust estate resulted from a will, a codicil or an order of a court that varied or modified the provisions of a will or a codicil. The discretion is exercised where the Commissioner is of the opinion that it would be unreasonable for Section 99A to apply.
Consequently, the favourable exercise of the Commissioner's discretion under subsection 99A(2) means the highest rate of income tax does not apply to trust estates resulting from a will, codicil, etc. These include both the estate of a deceased person and testamentary trusts established pursuant to the terms of a will.
Having regards to the circumstances the Commissioner will exercise the discretion to assess the income of the trust in accordance with section 99 of the ITAA 1936.