The new legislation is designed to prevent income from assets injected into a testamentary trust – also known as a will trust – from being taxed at a lower rate, which is possible under the pre-existing law.
Distributions to minors from trusts are generally taxed at the highest marginal tax rate to discourage the redirection of income from parents to their minor children.
However, there is an exception for testamentary trusts (trusts established by a will), where “excepted trust income” is taxed at adult marginal rates providing potentially a significant tax advantage.
This has resulted in some trustees taking advantage of the lower rates by “injecting” assets into a testamentary trust that were not derived from the estate of the deceased. However, existing anti-avoidance rules may have applied in these circumstances.
The legislation, which will take effect from 1 July 2019, further defines the income subject to this tax concession and gives the Commissioner of Taxation greater powers to determine whether the asset represents accumulations of income or capital from property of a deceased estate.
Trustees must be aware of the consequences for established testamentary trusts. For testamentary trusts yet to come into existence, individuals must review their wills, with consideration given of the intended assets they will contribute, and the class of beneficiaries that might benefit under the trust.
For more information, please contact your Pitcher Partners expert.