Edited version of private advice

Authorisation Number: 1052093758226

Date of advice: 9 March 2023

Ruling

Subject: Controlled foreign company

Question 1

Will rental income derived by the relevant R Companies and D Companies form part of their attributable income and be included in the assessable income of Mr X as the attributable taxpayer in relation to those entities for the purposes of the Controlled Foreign Company (CFC) rules contained in Part X of the Income Tax Assessment Act 1936 (ITAA 1936)?

Answer

No.

Question 2

Will any other types of passive income (within the meaning of section 446 of the ITAA 1936) or ordinary capital gains (from the sale of real property assets) derived by the relevant R Companies and D Companies and not constituting eligible designated concession income (EDCI) form part of their attributable income and be included in the assessable income of Mr X as the attributable taxpayer in relation to those entities for the purposes of the CFC rules contained in Part X of the ITAA 1936?

Answer

No.

Question 3

Will dividends received by HoldingCo from R Properties Co or R Management Co be notional exempt income of HoldingCo that will not be included in the assessable income of Mr X as the attributable taxpayer in relation to HoldingCo for the purposes of the CFC rules contained in Part X of the ITAA 1936?

Answer

Yes.

Question 4

Will income or gains derived by HoldingCo, other than dividends from R Properties Co or R Management Co, which is adjusted tainted income and not notional exempt income, form part of attributable income of HoldingCo that will be included in the assessable income of Mr X as the attributable taxpayer in relation to HoldingCo for the purposes of the CFC rules contained in Part X of the ITAA 1936?

Answer

Yes.

Question 5

When the X Trust receives a dividend from HoldingCo in an income year and:

(a)  the trustee of the X Trust allocates the whole of that income to a beneficiary resident in Australia, the US or United Kingdom during that income year; and

(b)  that beneficiary is subject to tax in the country of residence on that amount,

will that share of the net income of the X Trust be included in the assessable income of Mr X pursuant to section 102AAZD of the ITAA 1936?

Answer

No.

Question 6

When the X Trust receives a dividend from HoldingCo consisting of income that has not otherwise been attributed under the CFC rules in Part X of the ITAA 1936 and accumulates that dividend income without making an allocation or distribution to any person within the class of beneficiaries of the X Trust in respect of an income year of Mr X, will the dividend form part of the attributable income of the X Trust that will be included in the assessable income of Mr X pursuant to section 102AAZD of the ITAA 1936?

Answer

Yes.

This ruling applies for the following periods:

Income year ended 30 June 20XX

Income year ended 30 June 20XX

Income year ended 30 June 20XX

Relevant facts and circumstances

Mr X is currently a tax resident of Australia, having recently relocated to Australia from the Country A. Immediately prior to his relocation and resumption of residency in Australia, Mr X had been a resident of the Country A for tax purposes.

The X Trust is an express discretionary trust estate established by deed dated 1 XX 20YY, governed by the law of Country B and a resident of Country C for tax purposes. It is not treated as a resident trust estate in Australia or any listed country.

The trustee of the X Trust is Y Co Trustees Limited (Y Co), a company incorporated, managed and controlled in Country C.

Y Co Nominees Limited, as nominee for Y Co in its capacity as trustee for the X Trust, holds shares in HoldingCo, a company incorporated in the Country D. HoldingCo currently holds 78% of the issued shares (all with voting rights) in R Properties Co and R Management Co.

HoldingCo's shareholding in R Properties Co comprises its most substantial asset.

HoldingCo:

•         is not treated as a resident in Australia or any listed country;

•         makes no sales or purchases of goods;

•         provides no services to any Australian resident or any Australian permanent establishment of a foreign resident; and

•         may from time to time receive dividends from R Properties Co or R Management Co.

The other shareholdings in R Properties Co and R Management Co are held by third parties that are not residents of Australia for tax purposes.

R Properties Co directly and indirectly owns XX% of the issued shares in each of its subsidiary companies (together referred to as the R Companies). R Properties Co and most of the R Companies were incorporated in Country C, and a few were incorporated in the Country A, but all have been managed and controlled, and therefore tax resident, in the Country A since the income year ended 30 June 20XX.

As at the date of this ruling, Mr X is not a director of R Properties Co, R Management Co, or any of the R Companies and D Companies.

The R Companies and R Properties Co are not treated as 'flow-through' or 'disregarded' entities for the purpose of Country A taxation, and are not tax residents in any other country.

Most of the R Companies hold real property, or an interest in real property, located in the Country A and derive rental income from those properties.

R Management Co is a newly incorporated vehicle which directly and indirectly holds X% to X% of the shares in each of its subsidiary companies (together referred to as the D Companies).

R Management Co was incorporated in Country C but is managed and controlled in the Country A and is registered as a tax resident in the Country A. The D Companies were each incorporated in the Country A and are Country A residents for tax purposes.

R Management Co and the D Companies are not treated as 'flow-through' or 'disregarded' entities for the purpose of Country A taxation, and are not tax residents in any other country.

R Properties Co, the R Companies, R Management Co and the D Companies each carry out the following:

• undertake relevant registrations with Country A authorities;
• lodge documentation and accounts with Country A authorities;
• appoint Country A -based officers authorised to represent and accept service of documents for the relevant companies;
• operate out of business premises in Country A, and
• lodge the required Country A income tax returns.

None of R Properties Co, the R Companies, R Management Co or the D Companies are residents of Australia for tax purposes, own any Australian land or any shares in companies that are Australian land-rich for the purpose of Division 855 of the Income Tax Assessment Act 1997 (ITAA 1997).

The significant majority of the income derived by the R Companies and D Companies comprises rental income, capital gains and development profits, which are all subject to tax in the Country A.

For the purposes of the definition of 'tainted rental income' in section 317 of the ITAA 1936:

•         the R Companies and D Companies do not engage in any inter-entity dealings that concern leases, or have inter-entity payments of rental income with any associates;

•         a substantial part of the income of the R Companies and D Companies is not attributable to the provision of labour-intensive property management services in connection with the land, being services provided by directors or employees of the company;

•         the R Companies and D Companies derive rental income from leases of land only. There are no leases of ships, aircraft, cargo containers designed or intended for use on ships or aircraft, or plant and equipment designed or intended for use on board ships; and

•         R Properties Co, the R Companies, R Management Co and the D Companies do not hold any real property outside of Country A.

None of the R Companies or the D Companies are open-ended investment companies under the law of Country A, or taxed on a tonnage basis rather than income or profits in Country A.

Assumptions

1)    Mr X will continue to be an Australian resident for tax purposes for the duration of the periods for which the ruling relates.

2)    The X Trust is a transferor trust for the purpose of the rules in Division 6AAA of the ITAA 1936.

3)    Mr X is an eligible transferor in relation to the X Trust pursuant to section 347 of the ITAA 1936.

4)    Mr X is the sole attributable taxpayer in relation to the X Trust pursuant to section 102AAT of the ITAA 1936.

5)    HoldingCo is a CFC and Mr X is the sole attributable taxpayer in relation to HoldingCo with an attributable percentage of X%.

6)    The residency status of the X Trust, HoldingCo, R Properties Co, R Management Co, the R Companies and the D Companies will not change for the duration of the periods for which the ruling relates.

7)    HoldingCo will not pass the active income test in section 432 of the ITAA 1936.

8)    The R Companies and the D Companies are CFCs and Mr X is the sole attributable taxpayer in relation to each of those entities with an attributable percentage of X%.

9)    The R Companies and D Companies will not pass the active income test in section 432 of the ITAA 1936.

10) The trustee of the X Trust will not exercise any or its powers or discretions to allocate any income, capital or any other benefit to Mr X.

11) HoldingCo will continue to hold an overall majority interest in the underlying R Companies and D Companies.

12) No amount of the rental income derived by the R Companies and D Companies is 'special excluded rental income' as defined in section 317 of the ITAA 1936.

13) Dividends paid by R Properties Co and R Management Co to HoldingCo will be foreign equity distributions as defined in section 768-10 of the ITAA 1997.

14) HoldingCo will hold at least X% of the direct participation interests (as defined in section 960-190 ITAA 1997) in R Properties Co and R Management Co for the duration of the periods for which the ruling relates, disregarding winding-up rights.

15) Dividends declared and paid by R Properties Co and R Management Co will not give rise to a foreign income tax deduction as defined in section 832-120 of the ITAA 1997.

16) All income or capital gains derived by the R Companies or D Companies is treated as derived from sources in Country A and/or is subject to tax in Country A.

Relevant legislative provisions

Income Tax Assessment Act 1936 section 6

Income Tax Assessment Act 1936 subsection 95(1)

Income Tax Assessment Act 1936 section 97

Income Tax Assessment Act 1936 Division 6AAA

Income Tax Assessment Act 1936 section 102AAT

Income Tax Assessment Act 1936 section 102AAU

Income Tax Assessment Act 1936 paragraph 102AAU(1)(a)

Income Tax Assessment Act 1936 paragraph 102AAU(1)(b)

Income Tax Assessment Act 1936 paragraph 102AAU(1)(c)

Income Tax Assessment Act 1936 subparagraph 102AAU(1)(c)(i)

Income Tax Assessment Act 1936 subparagraph 102AAU(1)(c)(ii)

Income Tax Assessment Act 1936 paragraph 102AAU(1)(d)

Income Tax Assessment Act 1936 section 102AAZD

Income Tax Assessment Act 1936 Part X

Income Tax Assessment Act 1936 section 317

Income Tax Assessment Act 1936 section 320

Income Tax Assessment Act 1936 section 332

Income Tax Assessment Act 1936 section 347

Income Tax Assessment Act 1936 section 383

Income Tax Assessment Act 1936 subsection 384(2)

Income Tax Assessment Act 1936 subsection 385(1)

Income Tax Assessment Act 1936 subsection 385(2)

Income Tax Assessment Act 1936 subparagraph 385(2)(a)(i)

Income Tax Assessment Act 1936 subparagraph 385(2)(a)(ii)

Income Tax Assessment Act 1936 paragraph 385(2)(b)

Income Tax Assessment Act 1936 paragraph 385(2)(c)

Income Tax Assessment Act 1936 paragraph 385(2)(d)

Income Tax Assessment Act 1936 subsection 385(4)

Income Tax Assessment Act 1936 section 386

Income Tax Assessment Act 1936 Subdivision B of Division 7 of Part X

Income Tax Assessment Act 1936 section 402

Income Tax Assessment Act 1936 section 403

Income Tax Assessment Act 1936 section 404

Income Tax Assessment Act 1936 subsection 404(2)

Income Tax Assessment Act 1936 Subdivision C of Division 7 of Part X

Income Tax Assessment Act 1936 Subdivision D of Division 7 of Part X

Income Tax Assessment Act 1936 Division 8 of Part X

Income Tax Assessment Act 1936 section 432

Income Tax Assessment Act 1936 section 446

Income Tax Assessment Act 1936 paragraph 446(1)(f)

Income Tax Assessment Act 1997 Subdivision 768-A

Income Tax Assessment Act 1997 section 768-5

Income Tax Assessment Act 1997 subsection 768-5(1)

Income Tax Assessment Act 1997 paragraph 768-5(1)(a)

Income Tax Assessment Act 1997 paragraph 768-5(1)(b)

Income Tax Assessment Act 1997 paragraph 768-5(1)(c)

Income Tax Assessment Act 1997 paragraph 768-5(1)(d)

Income Tax Assessment Act 1997 subsection 768-5(2)

Income Tax Assessment Act 1997 section 768-10

Income Tax Assessment Act 1997 section 768-15

Income Tax Assessment Act 1997 section 832-120

Income Tax Assessment Act 1997 Division 855

Income Tax Assessment Act 1997 section 960-190

Income Tax Assessment (1936 Act) Regulation 2015 regulation 17(1)

Income Tax Assessment (1936 Act) Regulation 2015 regulation 19(f)

Reasons for decision

Questions 1 and 2

R Companies and D Companies

Pursuant to the CFC rules in Part X, certain Australian tax residents are required to include in their assessable income, on an accruals basis, their share of certain specified income (attributable income) of a foreign company in which they have a defined actual or deemed controlling interest.

The attributable income attributed to an attributable taxpayer in respect of a CFC differs depending on whether the CFC is resident in a listed country or an unlisted country.

The R Companies and D Companies are residents of a listed country for the purposes of section 332, as they:

•         are not residents of Australia within the meaning of section 6, and therefore are not Part X Australian residents, and

•         are treated as residents of the United Kingdom, a listed country (pursuant to regulation 19(f) of the Income Tax Assessment (1936 Act) Regulation 2015 (Regulations)), for the purposes of the tax law of the United Kingdom.

Subsection 385(1) makes two basic assumptions in arriving at the notional assessable income of a listed country CFC. These are:

(a) that the only amounts included in notional assessable income are those set out in subsection 385(2), and

(b) all other income is notional exempt income.

In accordance with subsection 385(2), there are different rules applying to a CFC's calculation of notional assessable income, depending on whether the CFC passes or fails the active income test (defined in section 432).

Subject to modification rules in Subdivisions B to D of Division 7 of Part X and the de minimis rule in subsection 385(4), the attributable income of a listed country CFC that has failed the active income test includes the following amounts:

•         adjusted tainted income that is EDCI in relation to the listed country or any other listed country

•         (paragraph 385(2)(a)(i)); and

•         income or other amounts of a kind specified in the Regulations that:

(i) are not EDCI of the CFC in relation to the listed country or any other listed country; and

(ii) are not treated as derived from sources in the listed country for the purposes of the tax law of the listed country; and

(iii) pass the test set out in subsection 385(2A) (paragraph 385(2)(a)(ii)); and

•         other types of income as set out in subsections 385(2)(b), (c) and (d).

'Adjusted tainted income' is defined in section 386 to include amounts that would be passive income, tainted sales income or tainted services incomeif certain modifications were made to the provisions of Division 8.

Passive income is defined in section 446. Paragraph 446(1)(f) includes tainted rental income derived by the company in a statutory accounting period.

As the rental income derived by the R Companies and D Companies is in respect of the lease of land located in a listed country of which they are resident at all times during the period when the income accrues, and a substantial part of that rental income is not attributable to the provision of labour-intensive property management services in connection with the land, that rental income is tainted rental income as defined in section 317, passive income under section 446, and therefore adjusted tainted income for the purposes of section 386.

Section 317 defines EDCI in relation to a listed country as 'designated concession income' (DCI) in relation to that listed country that is either:

•         not subject to tax in another listed country in the relevant period; or

•         subject to tax in another listed country and DCI in relation to that other listed country.

In relation to a listed country, DCI is defined in section 317 to mean:

•         income or profits of a kind specified in the Regulations if:

o   foreign tax imposed by a tax law of the country is not payable in respect of the income or profits because of a particular feature; or

o   foreign tax imposed by a tax law of the country is payable in respect of the income or profits but there is a feature in relation to that tax, and the feature is of a kind specified in the Regulations; or

•         capital gains that would be made because of CGT event J1 if certain assumptions were made[1].

The kind of 'income or profits' that would give rise to DCI are set out in column 2 of the table in regulation 17(1) of the Regulations, where derived by a particular entity identified in columns 3 and 4 of that table.

Item 11 of the table in regulation 17(1) of the Regulations prescribes that all income or profits will be DCI where derived by a company that is treated as a tax resident of Country A for tax purposes and has elected to be taxed on a tonnage basis rather than income or profits.

Item 12 of the table in regulation 17(1) of the Regulations prescribes that all passive income will be DCI where derived by an entity that operates in Country A as an open-ended investment company under the law of Country A.

As none of the R Companies or D Companies are open-ended investment companies or taxed in Country A on a tonnage basis, items 11 and 12 of the table in regulation 17(1) of the Regulations do not apply to treat the rental income derived by those companies as DCI.

The rental income derived by the R Companies and D Companies from their Country A properties is therefore not EDCI. Accordingly, whilst the rental income derived by the R Companies and D Companies is adjusted tainted income, it is not EDCI in relation to Country A and is therefore not notional assessable income of those companies pursuant to subparagraph 385(2)(a)(i).

As the rental income derived by the R Companies and D Companies relate to properties located in Country A, and will be treated as derived from sources in Country A for the purposes of the tax law of Country A, that rental income is not notional assessable income of those companies pursuant to subparagraph 385(2)(a)(ii).

As the R Companies and D Companies are not a partnership, trust or transferor trust, paragraphs 385(2)(b), (c) and (d) also do not apply to treat the rental income as notional assessable income of those companies.

There are no modification rules in Subdivisions B to D of Division 7 which include the rental income as attributable income of the R Companies and D Companies. Therefore, the rental income derived by those companies from the properties located in Country A will not form part of their attributable income to be included in the assessable income of Mr X as the attributable taxpayer in relation to these entities for the purposes of the CFC rules contained in Part X.

Other types of passive income and ordinary capital gains

To the extent that other forms of passive income (within the meaning of section 446) and ordinary capital gains (from the sale of real property assets) derived by the R Companies and D Companies are not EDCI, they will not form part of the notional assessable income of these entities under subsection 385(2):

•         pursuant to paragraph 385(2)(a)(ii) given the income or gains will be treated as derived from sources in Country A for the purposes of the tax law of Country A;

•         pursuant to paragraphs 385(2)(b), (c) or (d) given the R Companies and D Companies are not a partnership, trust or transferor trust; or

•         pursuant to any modification rules in Subdivisions B to D of Division 7.

As such, such income and gains will therefore not form part of the attributable income of the R Companies and D Companies to be included in the assessable income of Mr X as the attributable taxpayer in relation to these entities for the purposes of the CFC rules contained in Part X.

Questions 3 and 4

HoldingCo

For an unlisted country CFC, notional exempt income is all income other than notional assessable income pursuant to subsection 384(2). Furthermore, sections 402, 403 and 404 set out additional rules in relation to notional exempt income.

In calculating a CFC's notional assessable income, section 383 requires an assumption that the company is an Australian resident. Accordingly, Subdivision 768-A of the ITAA 1997 is notionally applied in determining the assessable income of HoldingCo, an unlisted country CFC pursuant to section 320.

Subdivision 768-A of the ITAA 1997 applies when an Australian corporate tax entity holds a participation interest of at least 10% in a foreign company, and receives a foreign equity distribution from the foreign company either:

•         directly (i.e. not in the capacity of a trustee) or in the capacity of a trustee of a public trading trust (subsection 768-5(1) of the ITAA 1997), or

•         indirectly through one or more interposed trusts and partnerships (subsection 768-5(2) of the ITAA 1997).

In these circumstances, Subdivision 768-A of the ITAA 1997 treats the distribution (other than certain distributions that give rise to foreign income tax deductions) as non-assessable non-exempt (NANE) income for the Australian corporate tax entity.

Subsection 768-5(1) of the ITAA 1997 provides the following in relation to foreign equity distributions on participation interests:

Foreign equity distributions received directly

(1) A foreign equitydistribution is not assessable income, and is not exempt income, of the entity to which it is made if:

(a)  the entity is an Australian resident and a corporate tax entity; and

(b)  at the time the distribution is made, the entity satisfies the participation test in section 768-15 in relation to the company that made the distribution; and

(c)   the entity:

(i) does not receive the distributionin the capacity of a trustee; or

(ii) receives the distribution in the capacity of a trustee of a public trading trust; and

(d)  the distribution is not one to which section 768-7 (which is about foreignincome tax deductions) applies.

R Properties Co and R Management Co are not Part X Australian residents. Distributions made by R Properties Co and R Management Co in respect of their equity interests may fall under subsection 768-5(1) of the ITAA 1997 if paragraphs 768-5(1)(a) to (d) are met.

Section 768-15 of the ITAA 1997 provides that a company will satisfy the participation test in relation to another entity at a time if, at that time, the company holds at least a 10% direct participation interest in the entity, disregarding rights on winding-up. HoldingCo will satisfy this requirement in paragraph 768-5(1)(b) in respect of the interests it holds in the R Properties Co and R Management Co. Similarly, paragraph 768-5(1)(c) will also be satisfied as the distributions paid by R Properties Co and R Management Co will not be received by HoldingCo in the capacity of a trustee.

Given the dividends declared and paid by R Properties Co and R Management Co will not give rise to a foreign income tax deduction as defined in section 832-120 of the ITAA 1997, subsection 768-5(1)(d) will not apply to exclude the dividends paid by R Properties Co or R Management Co to HoldingCo from being NANE income pursuant to subsection 768-5(1)[2].

As all the criteria in subsection 768-5(1) of the ITAA 1997 are satisfied, the R Properties Co and R Management Co dividends received by HoldingCo are NANE income of HoldingCo, notional exempt income of HoldingCo, and therefore will not be attributable income of HoldingCo pursuant to section 768-5 of the ITAA 1997. Those dividends will therefore not be included in the assessable income of Mr X as the attributable taxpayer in relation to HoldingCo.

To the extent that HoldingCo derives other forms of income or gains which is adjusted tainted income and not notional exempt income, it will form part of HoldingCo's notional assessable income under subsection 384(2), as well as HoldingCo's attributable income that will be included in the assessable income of Mr X as the attributable taxpayer in relation to HoldingCo for the purposes of the CFC rules contained in Part X.

Questions 5 and 6

X Trust

Division 6AAA, commonly referred to as the 'transferor trust provisions', imposes accruals taxation by attributing to Australian tax residents income derived by non-resident trust estates to which the Australian resident transferred property or provided services.

Section 102AAZD operates to include the attributable income of a trust estate, to which a taxpayer has transferred property or services, in the assessable income of the attributable taxpayer.

The attributable income of a non-resident trust estate is determined by reference to whether the trust is a listed country trust estate (paragraphs 102AAU(1)(a) and (b)).

Section 102AAU provides that if a non-resident trust estate is not a listed country trust estate in relation to a year of income, the attributable income of the trust estate is the "net income of the non-resident trust estate" (under paragraph 102AAU(1)(a)), reduced by amounts listed in paragraphs 102AAU(1)(c) and (d):

(c) so much (if any) of the amount covered by paragraph (a) ... as represents:

(i) an amount:

(A) that is or has been included in the assessable income of a beneficiary under section 97; or

(B) in respect of which the trustee of the non-resident trust estate is or has been assessed and liable to pay tax under section 98, 99or 99A; or

(C) on which trustee beneficiary non-disclosure tax is payable under Division 6D; or

(ii) an amount:

(A) that is paid to a beneficiary, being a resident of a listed country, during the period of 13 months commencing at the beginning of the year of income; and

(B) subject to tax in a listed country in a tax accounting period ending before the end of the year of income or commencing during the year of income; or

(iii) an amount that consists of, or is attributable to, the franked part of a distribution, or the part of a distribution that has been franked with an exempting credit; or

(iv) [Repealed]

(v) if an amount is or has been included in the assessable income of any taxpayer under section 102AAZD because the taxpayer is an attributable taxpayer in relation to any year of income (in this subparagraph called the taxpayer's year of income) and in relation to a trustestate other than the non-resident trust estate-so much of an amount paid to the trustee of the non-resident trust estate as represents the attributable income of that other trust estate of the taxpayer'syear of income; or

(vi) [Repealed]

(vii) if:

(A) an attribution account payment is made to the trustee of the trustestate during the year of income; and

(B) the making of the attribution account payment gives rise to an attribution debit, in relation to any taxpayer, for the entity making thepayment;

the amountof the attribution debit; or

(viii) an amount of incomeor profits of the trust estate:

(A) that is subject to tax in any listed country in a tax accounting period ending before the end of the year of income or commencing during the year of income; and

(B) that is not eligible designated concession income in relation to any listed countryin relation to the year of income; and

(ix) [Repealed]

(d) so much of any foreign tax or Australian taxpaidby the trustee or a beneficiary as is attributable to so much of the amount covered by paragraph (a) or (b), as the case requires, as remains after the reduction or reductions covered by paragraph (c).

Therefore, in accordance with section 102AAU, the attributable income of a non-resident trust estate from an unlisted country will be equal to the net income of the trust estate of the year of income (calculated under subsection 95(1)), reduced by the above amounts. Pursuant to subsection 95(1), the net income of a trust estate is the total assessable income of the trust estate calculated as if the trust were a resident taxpayer in respect of that income less all allowable deductions (excluding certain specified deductions).

Therefore, if the trustee of the X Trust allocates a dividend from HoldingCo to:

•         an Australian resident who is assessed on the amount under section 97; or

•         a resident of the Country E or Country A (both listed countries under section 320) during the income year, and the amount is subject to tax in the relevant listed country during the income year,

that share of the net income of the X Trust will meet the requirements in subparagraphs 102AAU(1)(c)(i) or (ii) respectively, and therefore will not be included in the attributable income of the X Trust, nor included in the assessable income of Mr X pursuant to section 102AAZD.

Where, on the other hand, the dividend to be received by the X Trust from HoldingCo forms part of the trust estate's net income as calculated under subsection 95(1), has not been attributed under the CFC rules in Part X and is accumulated without allocating it to any beneficiary so that none of the dividend is an amount referred to in subparagraphs 102AAU(1)(c)(i) or (ii), the dividend will form part of the attributable income of the X Trust under section 102AAU and be included in Mr X's assessable income for the income year pursuant to section 102AAZD.

[1] This is not relevant for present purposes.

[2] As HoldingCo is not a resident of the same country as either of R Properties Co or R Management Co, subsection 404(2) does not apply to disregard paragraph 768-5(1)(d) of the ITAA 1997 from the application of Subdivision 768-A.