Edited version of private advice

Authorisation number: 1052306855218

Date of advice: 17 September 2024

Ruling

Subject: CGT - trusts

Question 1:

Will capital gains tax (CGT) event A1 happen if the current trustee (Current Trustee) (listed in Column 2 of Table 1) of the relevant trust (listed in Colum 1 of Table 1) retires as trustee and transfers all CGT assets of the relevant trust to the replacement trustee (Replacement Trustee) (listed in Column 3 of Table 1)?

Table 1:Proposed replacement trustee

Answer:

No.

Question 2:

Will any amount be included in the assessable income of the Current Trustee (Column 2, Table 1) as a result of the transfer of all the CGT assets of the relevant trust (Column 1 of Table 1) to the proposed Replacement Trustee (Column 3 of Table 1) pursuant to section 6-5 of the Income Tax Assessment Act 1997?[1]

Answer:

No.

Question 3:

Will CGT events E1 or E2 happen if the Current Trustee (listed in Column 2 of Table 1) of the relevant trust (listed in Column 1 of Table 1) retires as trustee and transfers all CGT assets of the relevant trust to the Replacement Trustee (listed in Column 3 of Table 1)?

Answer:

No.

Question 4:

If the answer to Questions 1 and 3 are yes, will section 102-5 apply to include the net capital gain in the assessable income of the Current Trustee of the relevant trust (listed in Column 1 of Table 1)?

Answer:

No.

This ruling applies for the following period:

Year ended 30 June 20xx

The scheme commences on:

1 July 20xx

Relevant facts and circumstances

Company A

1.         On date, Company A was incorporated.

2.         The current directors of Company A are:

a.            Individual A

b.            Individual B

c.            Individual C

d.            Individual D

e.            Individual E.

Trusts 1 to 8:

3.         On dates, Trusts 1 to 8 were settled with Company A being appointed as the original trustee. The Trust Deeds of each of the trusts allow for the retirement of the relevant trustees and the appointment of replacement trustees.

Proposed arrangement:

4.         It is proposed that Company A will retire as the trustee of the trusts listed in Column 2 of Table 1 and the companies listed in Column 3 be appointed as replacement trustees of the relevant trusts listed in Column 1:

Table 2: Proposed replacement trustee

5.         To implement the retirement and replacement trustees as provided in Table 1, it is proposed that:

a.            a Deed of Retirement and appointment of replacement trustee is executed, and

b.            share transfer documentation is completed to all for the transfer of all CGT assets from Company A, as Current Trustee, to the Replacement Trustees listed in Column 3 of Table 1.

6.         Draft copies of the documentation listed in paragraph 5 were provided to the Commissioner in support of this ruling application.

Anti-avoidance rules

Part IVA is a general anti-avoidance rule that can apply in certain circumstances if you or another taxpayer obtains a tax benefit in connection with an arrangement and it can be concluded that the arrangement, or any part of it, was entered into or carried out by any person for the dominant purpose of enabling a tax benefit to be obtained. If Part IVA applies the tax benefit can be cancelled, for example, by disallowing a deduction that was otherwise allowable.

We have not fully considered the application of Part IVA to the arrangement you asked us to rule on, or to an associated or wider arrangement of which that arrangement is part.

If you want us to rule on whether Part IVA applies we will first need to obtain and consider all the facts about the arrangement which are relevant to determining whether Part IVA may apply.

Reasons for decision

Question 1

Will CGT event A1 happen if the current trustee (Current Trustee) (listed in Column 2 of Table 1) of the relevant trust (listed in Colum 1 of Table 1) retires as trustee and transfers all CGT assets of the relevant trust to the replacement trustee (Replacement Trustee) (listed in Column 3 of Table 1)?

Table 3: Proposed replacement trustee

Summary:

No, the mere change in trustee will not result in CGT event A1.

Detailed reasoning

Capital gains tax

CGT event A1:

7.         Section 104-5 sets out a list of CGT events. CGT event A1 is the disposal of a CGT asset pursuant to subsection 104-10(1). Subsection 104-10(2) states that a taxpayer will dispose of a CGT asset if a change of ownership occurs from the taxpayer to another entity.

8.         The Note to section 104-10 explains that CGT event A1 will not occur merely because there has been a change in the trustee of a trust.

9.         Paragraph 14 of Taxation Determination TD 2001/26 Income Tax: capital gains: what are the capital gains tax consequences for a beneficiary of a discretionary trust who renounces their interest in the trust? (TD 2001/26) confirms the Commissioner's view that a mere change in trustee of a trust has no CGT consequences.

Application to your circumstances:

10.         It is proposed that the current trustees of the trusts will retire and replacement trustees be appointed for the relevant trusts as outlined in Table 1. Consistent with the Note in section 104-10 and TD 2001/26, the purposed changes of the trustees of the trusts will not result in CGT event A1 occurring.

Question 2:

Will any amount be included in the assessable income of the current trustee (Column 2, Table 1) as a result of the transfer of all the CGT assets of the relevant trust (Column 1 of Table 1) to the proposed Replacement Trustee (Column 3 of Table 1) pursuant to section 6-5?

Summary:

No.

Detailed reasoning:

Ordinary income - section 6-5:

11.         Subsection 6-5(1) provides that your assessable includes ordinary income, being "income according to ordinary concepts". Guidance on the ordinary meaning of a term can be found with reference to dictionary definitions. The Oxford English Dictionary defines income as "periodical (usually total annual) receipts from one's business, lands work, investments and so on".

12.         However, dictionary definitions do not necessarily have the force of law and without further guidance in the legislation, reference to case law is required for a proper understanding of the meaning of a term. While the courts have not applied a strict definition to income, a number of characteristics have been identified to provide the basis in determining whether a receipt is income.

13.         The main characteristics that are generally applicable to a receipt being considered as income are:

a.            received periodically and regularly

b.            received for personal services (for example, salary and wages)

c.            received from property and investment returns (for example, dividends and interest)

d.            relied upon or expected

e.            earned

f.            for the replacement of income

g.            derived by way of a profit-making intention or carrying on a business.

14.         Therefore, ordinary income generally bears a direct relationship to some form of input or investment made by the taxpayer. It is important to note, however, that it is not necessary for all of these characteristics to exist in order for a receipt to be considered under ordinary concepts.

Application to your circumstances:

15.         As a result of the proposed retirement of the Current Trustees and appointment of the Replacement Trustees, the assets of the relevant trust funds will be transferred to the Replacement Trustees. The Replacement Trustees will commence to hold the assets on trust for the benefit of the beneficiaries of the relevant trusts. The transfer of the assets to the Replacement Trustees does not exhibit the general characteristics of ordinary income, as explained in paragraphs 11 to 14. Consequently, section 6-5 will not be satisfied and the Replacement Trustees will not be required to include an amount in their assessable income from the transfer of the assets.

Question 3:

Will CGT event E1 or E2 happen if the Current Trustee (listed in Column 2 of Table 1) of the relevant trust (listed in Column 1 of Table 1) retires as trustee and transfers all CGT assets of the relevant trust to the Replacement Trustee (listed in Column 3 of Table 1)?

Summary:

No.

Detailed reasoning:

Explanation of the legislation:

CGT event E1 - creating a trust over a CGT asset:

16.         Subsection 104-55(1) provides that CGT event E1 happens when a trust is created over a CGT asset by declaration or settlement. The Note to this section explains that the mere change in the trustee of a trust will not result in CGT event happening.

CGT event E2 - transferring a CGT asset to a trust:

17.         Subsection 104-60(1) provides that CGT event E2 will happen when a CGT asset is transferred to a trust. The Note to this section further provides that a mere change in trustee of a trust does not result in CGT event E2 happening.

Application to your circumstances:

18.         The implementation of the proposed arrangement involves the retirement of the Current Trustees and the appointment of the Replacement Trustees for the relevant trusts, as outlined in Table 1. That is, the proposed arrangement involves solely the change of trustee. Consequently, CGT event E1 and E2, pursuant to subsections 104-55(1) or 104-60(1), respectively, will not apply.

Question 4:

If the answer to Questions 1 and 3 are yes, will section 102-5 apply to include the net capital gain in the assessable income of the trustee of the relevant trust (listed in Column 1 of Table 1)?

Explanation of the legislation:

Assessable income includes net capital gains:

19.         Section 102-5 provides that your assessable income includes any capital gains and broadly outlines the manner in which the net capital gain is calculated.

Application to your circumstances:

20.         The answers to Questions 1 and 3 are no and CGT events A1, E1 and E2 will not occur. Consequently, there will be no net capital gain resultant from these events under the proposed arrangement and section 102-5 will not be satisfied.

ATO view documents

Taxation Determination TD 2001/26 Income Tax: capital gains: what are the capital gains tax consequences for a beneficiary of a discretionary trust who renounces their interest in the trust?

Relevant legislative provisions

Income Tax Assessment Act 1936 section 6-5

Income Tax Assessment Act 1997 section 104-5

Income Tax Assessment Act 1997 section 104-10

Income Tax Assessment Act 1997 section 104-55

Income Tax Assessment Act 1997 section 104-60

[1] All future legislative references are to the Income Tax Assessment Act 1997, unless otherwise indicated.