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2023 trust distributions – critical year-end considerations for trustees
Technical article

2023 trust distributions – critical year-end considerations for trustees

Recent developments have confirmed the critical importance of trustees properly considering which beneficiaries should receive distributions and how those distribution entitlements are satisfied.

These developments highlight that trustees cannot be passive in their trust distribution decisions. It is therefore important that trustees take these developments into account when determining distributions of trust income for 2022-23 and future years.

What are the developments?

The first was a decision by the Victorian Court of Appeal in Owies v JJE Nominees Pty Ltd1 (“Owies”), as to whether the trustee of a family discretionary trust had failed to give adequate consideration to the circumstances of two beneficiaries of the trust. The commercial risk this case highlights is that an aggrieved beneficiary may be able to challenge prior year distributions and have them declared void and have the trustee removed.

The second is finalised guidance from the Australian Taxation Office (“ATO”) on the application of a provision of the Income Tax Assessment Act 1936 (Cth) (“ITAA 1936”) – section 100A – dealing with what are referred to as “reimbursement agreements” that targets distributions that are part of an arrangement to provide a benefit to someone other than the beneficiary. The guidelines focus on beneficiaries receiving the benefit of their trust distributions. Failure to adhere to these guidelines runs an increased risk that the ATO could seek to apply section 100A, resulting in the trustee being assessable on the relevant share of the net (taxable) income of the trust at 47%.

The final development is the ATO’s success in recent cases on the application of the general anti-avoidance rule (Part IVA) and specific anti-avoidance rule (section 100A) to trust distributions. The ATO’s success in these cases highlights the importance for trustees to ensure that they have considered the ATO’s guidelines on section 100A properly.

Considering Owies case before year-end

What is important about Owies case?

Two of the three Primary Beneficiaries of the Owies Family Trust took action against the trustee (a company controlled by their parents) claiming that, in making distributions over a period of years, it breached its fiduciary duty to give “real and genuine consideration” to their needs. One of those beneficiaries had suffered from a number of medical conditions that had impacted her ability to work full time with consequent financial implications for her. That these circumstances had not factored into the trustee’s distributions decisions was important to the court’s decision.

The beneficiaries were successful in getting an order that the trustee be removed and replaced by an independent trustee, such that the family no longer had control over trust distributions. The court also noted that the beneficiaries may have been successful in having prior distributions being declared void and an order for compensation to be paid.

The case was one where the trustee could not demonstrate that it had properly considered the needs of the beneficiaries of the trust when making trust distributions, especially where a beneficiary had special financial needs because of their circumstances.

While the Owies decision may not have established new principles, it is a timely reminder of the important role of a trustee and how critical it is for the trustee to demonstrate that it has had “real and genuine consideration” of the beneficiaries needs and circumstances before making distribution decisions.

What should trustees consider with respect to Owies?

Trustees should consider their year-end distribution processes to ensure they can demonstrate that they have made reasonable inquiries of beneficiaries and have considered whether beneficiaries of the trust have special needs. To the extent that a trustee is unsure as to whether their year-end distribution process deals with an Owies case scenario, trustees should consider discussing the issue with their legal advisors.

Considering section 100A guidance material on reimbursement agreements

What is important about the section 100A guidance?

The term “reimbursement agreement” refers to a situation in which a beneficiary’s distribution entitlement arises out of, or in connection with, an arrangement that a) involves a benefit being provided to a person other than the beneficiary, b) is intended to have the result of reducing someone’s tax liability, and c) was entered into outside the course of ordinary family or commercial dealing.

Generally, where a beneficiary receives their distribution entitlement (and applies the entitlement for their benefit) this provision should not apply. However, the risk it will apply rises if the beneficiary does not receive their distribution entitlement and (or) a benefit is provided to another person or entity through that distribution entitlement.

Practical Compliance Guideline PCG 2022/2 (“PCG 2022/2”) outlines a number of scenarios and explains the likelihood of the ATO compliance activity to determine whether to apply section 100A. Green zone arrangements will only be examined to confirm that further ATO investigation is not warranted while red zone arrangements will, as a matter of priority, be analysed to determine whether they are high risk.

What are green zone arrangements?

These are arrangements with a low risk of ATO compliance activity. Green zone arrangements fall into two broad categories.

  • The first covers distributions to an individual where the entitlement is paid within two years and used to benefit the beneficiary, their spouse and (or) dependants.
  • The second covers distributions where the trust retains the funds representing the beneficiary’s entitlement. However, there are strict limits on how the trust can use the funds. In addition, if the beneficiary is an individual, that individual must be involved in the management of a business carried on by the trust or they (or their spouse) must control the trust. If the beneficiary is a company or trust, the unpaid entitlement must be covered by a Division 7A (7-year) complying loan.

PCG 2022/2 then proceeds to enumerate eleven features which, if associated with what would otherwise be a green zone arrangement, will deny the arrangement a green zone rating. These include situations where the arrangement is in the red zone (see below), the beneficiary gifts or lends their entitlement to another, where the amount included in the beneficiary’s assessable income is significantly more than their share of distributable income or where income flows to a non-resident through an interposed company beneficiary.

Additionally, distributions will not be within the green zone if the trustee fails to notify the beneficiary of their entitlement, or the beneficiary fails to lodge a tax return or omits the entitlement from their tax return.

What are red zone arrangements?

These are arrangements where the ATO will seek to undertake compliance activity. If, as a result of that initial work, the ATO categorise the arrangement as high-risk it is likely to be followed up with a tax audit. Red zone arrangements include:

  • Gifts or loans: Distributions to adult beneficiaries that are then paid to the parents (by way of gift, loan, or other means) which are purported to be in respect of living expenses that were incurred by the parents before the beneficiaries had turned 18 years old. Similarly, distributions to a non-resident relative, which is then used to benefit (by way of loan, gift, or other means) a resident beneficiary.
  • Circular distributions: Situations where a trust owns all of the shares in a company and distributes to the company in one year and in the subsequent year, the company uses the after-tax amount of the distribution to pay a fully franked dividend back to the trust. These steps are then repeated in later years. The ATO indicate that they will still review these arrangements, irrespective that the subsequent distribution may be made to another taxpayer.
  • Substantial timing differences: Arrangements where the amount to be included in calculating the beneficiary’s taxable income is significantly more than the distribution to which the beneficiary is entitled and the difference is the result of deliberate actions that affect the computation of trust distributable income.
  • Losses: Situations involving a beneficiary outside the family group that has tax losses and the economic benefit associated with the trust entitlement is not utilised by the beneficiary.
What should trustees consider with respect to the section 100A guidance material?

When making trust distribution resolutions for 30 June 2023, it is important to step back and examine the overall arrangement to determine whether they would be classified as a ‘green zone’, ‘red zone’ or ‘other’ arrangement. Where the arrangement is classified as an ‘other’ arrangement, trustees should consider the risk of section 100A applying to that distribution. Given the complex nature of section 100A and the guidance material, it is important for trustees to engage with their advisors to properly consider this in respect of their 30 June 2023 distributions and for future years.

Trust Distributions and anti-avoidance provisions

How has the ATO been successful in applying anti-avoidance rules to trusts?

In addition to the section 100A guidance material, the ATO have been successful in the 2022 and 2023 year in applying Part IVA and section 100A to trust distribution cases. All of these cases demonstrated a permanent tax saving through the use of a trust and the choice of distributions.

In FCT v Guardian AIT Pty Ltd [2023] FCAFC 3 (“Guardian“) the Full Federal Court held that Part IVA could apply to distributions to a corporate beneficiary. In brief, that case involved the corporate beneficiary subsequently distributing the after-tax amount of its entitlement to a non-resident as a fully franked dividend with no further Australian tax payable. Had the trust distributed directly to the non-resident the overall Australian tax paid would have been higher. The decision in Guardian is discussed in detail in our earlier article.

In BBlood Enterprises Pty Ltd v Commissioner of Taxation [2022] FCA 1112 (“BBlood”), the Commissioner was successful in applying section 100A where significant timing differences occurred in respect of a buy-back of shares in a controlled company. In this case, the taxable dividend from the buy-back was distributed to a company, whereas the economic benefits in respect of the buy-back were retained in the trust (allowing for future tax-free distributions to individuals). BBlood is currently on appeal.

The ATO also succeeded in applying Part IVA to trust distributions in Minerva Financial Group Pty Ltd v FCT [2022] FCA 1092 (“Minerva”). In that case, a restructure of the group resulted in the group’s net interest income flowing to a non-resident beneficiary unless the trustee exercised a discretion to distribute that income to a resident company. Prior to the restructure, the group’s net interest had been derived by that resident company. In the relevant years, the trustee did not exercise its discretion with the result that the net interest income was subject to a 10% final withholding tax rather than 30% company tax.

What should trustees consider with respect to the anti-avoidance provisions?

While these cases demonstrate that the ATO can be very successful in applying the anti-avoidance provisions with respect to trust distributions, it needs to be noted that all three cases involved a permanent tax benefit that would otherwise have accrued to the taxpayers. The ATO has released its decision impact statement on Guardian confirming that the decision does not (effectively) change its guidance on section 100A. Accordingly, provided that taxpayers consider the section 100A guidance material and ensure that risks have been reduced in respect of trust distributions, we believe that there should be a low risk of the ATO apply the anti-avoidance provisions to trust distributions.

What are the next steps?

The developments referred to above highlight that trustees need to understand the terms of the trust deed and the identity and needs of the beneficiaries so as to properly inform their distribution decision. Trustees should reach out to their legal and accounting advisors for assistance in understanding these matters.

The ATO are becoming much more active in reviewing trust distributions and these developments highlight that distributions driven predominantly by the tax outcome achieved are increasingly likely to attract ATO attention.

It is critical that clients consider how these developments might apply to their circumstances and that year-end process ensure that they have considered these very important developments. Clients should contact their Pitcher Partners representative to review their situation and determine what action is required well before 30 June.

1 [2022] VSCA 142.
This content is general commentary only and does not constitute advice. Before making any decision or taking any action in relation to the content, you should consult your professional advisor. To the maximum extent permitted by law, neither Pitcher Partners or its affiliated entities, nor any of our employees will be liable for any loss, damage, liability or claim whatsoever suffered or incurred arising directly or indirectly out of the use or reliance on the material contained in this content. Pitcher Partners is an association of independent firms. Pitcher Partners is a member of the global network of Baker Tilly International Limited, the members of which are separate and independent legal entities. Liability limited by a scheme approved under professional standards legislation.

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