A Trekk Advisory accountant writes down the ATO’s final position on risky trust distributions.
February 15, 2023 By Gavin Weller

The ATO’s final position on risky trust distributions

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The ATO has released its final position on how it will apply some integrity rules dealing with trust distributions - changing the goal posts for trusts distributing to adult children, corporate beneficiaries, and entities with losses. As a result, many family groups will pay higher taxes because of the ATO’s more aggressive approach.

Section 100A

The tax legislation contains an integrity rule, section 100A, which is aimed at situations where income of a trust is appointed in favour of a beneficiary, but the economic benefit of the distribution is provided to another individual or entity. For section 100A to apply, there needs to be a 'reimbursement agreement’ in place at or before the time the income is appointed to the beneficiary. Distributions to minor beneficiaries and other beneficiaries who are under a legal disability are not impacted by these rules.

If trust distributions are caught by section 100A, this generally results in the trustee being taxed on the income at penalty rates rather than the beneficiary being taxed at their own marginal tax rates.

While section 100A has been around since 1979, until recently there has been relatively little guidance on how the ATO approaches section 100A. This is no longer the case and the ATO’s recent guidance indicates that a number of scenarios involving trust distributions could be at risk.

For section 100A to apply:

  • The present entitlement (a person or an entity is or becomes entitled to income from the trust) must relate to a reimbursement agreement;
  • The agreement must provide for a benefit to be provided to a person other than the beneficiary who is presently entitled to the trust income; and
  • A purpose of one or more of the parties to the agreement must be that a person would be liable to pay less income tax for a year of income.

High risk areas

Until recently many people have relied on the exclusions to section 100A which prevent the rules applying when the distribution is to a beneficiary who is under a legal disability (e.g., a minor) or where the arrangement is part of an ordinary family or commercial dealing (the ‘ordinary dealing’ exception). It is the ordinary dealing exception that is currently in the spotlight.

For example, let’s assume that a university student who is over 18 and has no other sources of income is made presently entitled to $100,000 of trust income. The student agrees to pay the funds (less tax they need to pay to the ATO) to their parents to reimburse them for costs that were incurred when the student was a minor. This situation is likely to be considered high risk if the student is on a lower marginal tax rate than the parents because the parents are receiving the real benefit of the income.

The ATO is also concerned with scenarios involving circular distributions. For example, this could occur when a trust distributes income to a company that is owned by the trust. The company then pays dividends back to the trust, which distributes some or all of the dividends back to the company. And so on. The ATO views these arrangements as high risk from a section 100A perspective.

Common scenarios identified as high risk by the ATO include:

  • The beneficiary is a company or trust with losses and the beneficiary is not part of the same family group as the trust making the distribution.
  • A company or trust which is entitled to distributions from the trust returns the funds to the trustee (i.e., circular arrangements).
  • The beneficiary is issued units by the trustee of the trust (or a related trust) with the amount owed for the units being set-off against the entitlement and where the market value of the units is less than the subscription price or the trustee is able to do this without the consent of the beneficiary.
  • Adult children are made presently entitled to income, but the funds are paid to a parent in relation to expenses incurred before the beneficiary turned 18.

Where to from here?

If you have a discretionary trust, it will be important to ensure that all trust distribution arrangements are reviewed in light of the ATO’s guidance to determine the level of risk associated with the arrangements. It is also vital to ensure that appropriate documentation is in place to demonstrate how funds relating to trust distributions are being used or applied for the benefit of the beneficiaries.

The ATO’s new approach applies to entitlements before and after the publication of the new guidance but for entitlements arising before 1 July 2022, the ATO will not generally pursue these if they are either low risk under the new guidance, or if they comply with the ATO’s previous guidance on trust reimbursement agreements.

If you're not sure how this new approach will affect you, get in touch with us today.

 

About Author

Gavin Weller

Gav is a Director of Trekk and operates from our Brisbane office - helping his client's in the advisory space in planning, strategy, structure, and taxation. He loves being able to work closely with both his clients and his team to help them achieve their goals. The best part of his job is that each new day is interesting, challenging and rewarding because of the great people he gets to work with. He is a massive fan of all sports and no doubt wishes he could have been a sports star or commentator. Unfortunately for him, he’s not good enough or impartial enough for either but he very much enjoys continuing to play soccer and tennis in the meantime. There's more to him than sports though... He loves music and going to gigs and theatre with his wife. Gav goes by the saying "Life is short – enjoy and appreciate this moment" and "Back yourself – some days you kick and some days you get kicked – that’s rugby". This metaphor for strength and resilience helps him get the best out of each day.

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