Income Tax Assessment Act 1936

s 97 — Beneficiary not under any legal disability

(1) Subject to Division 6D, where a beneficiary of a trust estate who is not under any legal disability is presently entitled to a share of the income of the trust estate: (a) the assessable income of the beneficiary shall include: (i) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident; and (ii) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia; and (b) the exempt income of the beneficiary shall include: (i) so much of the individual interest of the beneficiary in the exempt income of the trust estate as is attributable to a period when the beneficiary was a resident; and (ii) so much of the individual interest of the beneficiary in the exempt income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia; except to the extent to which the exempt income to which that individual interest relates was taken into account in calculating the net income of the trust estate; and (c) the non ‑ assessable non ‑ exempt income of the beneficiary shall include: (i) so much of the individual interest of the beneficiary in the non ‑ assessable non ‑ exempt income of the trust estate as is attributable to a period when the beneficiary was a resident; and (ii) so much of the individual interest of the beneficiary in the non ‑ assessable non ‑ exempt income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia. (2) A reference in this section to income of a trust estate to which a beneficiary is presently entitled shall be read as not including a reference to income of a trust estate: (a) to which a beneficiary is deemed to be presently entitled by virtue of the operation of subsection 95A(2) where the beneficiary: (i) is a natural person; (ii) is a resident at the end of the year of income; (iii) is not, in respect of that income, a beneficiary in the capacity of a trustee of another trust estate; and (iv) is not a beneficiary to whom subsection 97A(1) or (1A) applies in relation to the year of income; or (b) to which a beneficiary is presently entitled where the beneficiary: (i) is a non ‑ resident at the end of the year of income; (ii) is not a beneficiary to whom subsection (3) of this section or subsection 97A(1) or (1A) applies in relation to the year of income; and (iii) is not, in respect of that income, a beneficiary in the capacity of a trustee of another trust estate. (3) Where: (a) a beneficiary of a trust estate is presently entitled to a share of the income of the trust estate; (b) the beneficiary is a non ‑ resident at the end of the year of income; and (c) the beneficiary is: (i) a body, association, fund or organization the income of which is exempt from tax by virtue of the operation of Subdivision 50 ‑ A or section 51 ‑ 5, 51 ‑ 10 or 51 ‑ 30 of the Income Tax Assessment Act 1997 ; or (ii) an organization the income of which is exempt from tax by virtue of a regulation in force under the International Organisations (Privileges and Immunities) Act 1963 ; that beneficiary is, for the purposes of the application of this Division in relation to that beneficiary in relation to that year of income, a beneficiary to whom this subsection applies.

Amendment history: Repealed and substituted by No 12 of 1979, item 5 | item 12 | item 14 | item 15 | item 16, effective 13 Mar 1979 (s 2) | Amended by No 19 of 1980, item 10 | item 16, effective 30 Apr 1980 (s 2) | Amended by No 108 of 1981, item 18 | item 27, effective s 4–25: 24 June 1981 (s 2) | Amended by No 29 of 1982, item 4 | item 13, effective s 3–24: 17 May 1982 (s 2(1)) | Amended by No 14 of 1983, item 6 | item 8 | item 17 | item 18 | item 65, effective s 4: 14 Feb 1983 (s 2(2)) Remainder: 14 June 1983 (s 2(1)) | Amended by No 121 of 1997, Sch 1 item 52, effective s 4: 8 July 1997 (s 2(1)) Sch 2 (items 18–37), Sch 3 (items 31–61), Sch 4 (items 63–138), Sch 5 (items 43–93), Sch 6 (items 68–132), Sch 7 (items 5–7), Sch 8 (items 32–51), Sch 9 (items 16–40), Sch 10 (items 12–15), Sch 11 (items 37–57) and Sch 12 (items 15–23): 1 July 1997 (s 2(3), (5)) | Amended by No 150 of 1997, effective Sch 2 (items 3–7): 17 Oct 1997 (s 2(1)) | Amended by No 70 of 1999, Sch 1 item 1 | Sch 1 item 2 | Sch 1 item 3, effective Sch 1 and Sch 2 (items 1–12): 8 July 1999 (s 2) | Amended by No 57 of 2001, effective Sch 2 (items 1, 2, 4): 28 June 2001 (s 2) | Amended by No 66 of 2003, Sch 3 item 14 | Sch 3 item 19 | Sch 3 item 31, effective s 4, Sch 1 and Sch 3 (items 1–46, 47, 48, 140(1), (5), (7)): 30 June 2003 (s 2(1) items 1, 2, 4–6, 14) Sch 3 (item 46A): 29 June 2002 (s 2(1) item 5A) | Amended by No 101 of 2006, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3)

s 97A — Beneficiaries who are owners of farm management deposits

(1) Where a beneficiary who is under a legal disability: (a) is presently entitled to a share of the income of a trust estate derived during a year of income of the beneficiary; and (b) is the owner of a farm management deposit made during the year of income; this Division applies in relation to the beneficiary in relation to the year of income as if the beneficiary were not under any legal disability. (1A) Where a beneficiary who is deemed by subsection 95A(2) to be presently entitled to any income of a trust estate derived during a year of income of the beneficiary: (a) is not under a legal disability; and (b) is the owner of a farm management deposit made during the year of income; the beneficiary is, for the purposes of the application of this Division in relation to that beneficiary in relation to that year of income, a beneficiary to whom this subsection applies. Note: This section applies to certain beneficiaries as if they were individuals who are carrying on a primary production business: see subsections 393 ‑ 25(3), (4), (5) and (6) of the Income Tax Assessment Act 1997 .

Amendment history: Inserted by No 205 of 1976, effective s 3–36: 20 Dec 1976 (s 2(1)) | Amended by No 19 of 1980, effective 30 Apr 1980 (s 2) | Amended by No 108 of 1981, effective s 4–25: 24 June 1981 (s 2) | Repealed and substituted by No 56 of 1989, effective s 32–37: 1 July 1989 (s 2) | Amended by No 85 of 1998, Sch 2G item 5 | Sch 2G item 6 | Sch 2G item 7 | Sch 2G item 8 | Sch 2G item 9, effective Sch 1: 2 Jan 1999 (s 2(2)) | Amended by No 101 of 2006, Sch 1 item 100 | Sch 1 item 101 | Sch 2 item 268 | Sch 2 item 269 | Sch 2 item 270 | Sch 2 item 271 | Sch 2 item 272, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3) | Amended by No 79 of 2010, Sch 4 item 393 | Sch 4 item 14 | Sch 4 item 15 | Sch 4 item 16 | Sch 4 item 17 | Sch 4 item 18 | Sch 4 item 19 | Sch 4 item 20 | Sch 4 item 21, effective Sch 1 (items 1, 2, 17–26, 53, 57, 66), Sch 3 (item 1), Sch 4 (items 1, 9–37, 51) and Sch 5 (items 1, 3–5, 13): 1 July 2010 (s 2(1) items 2, 4) Sch 2 (items 1, 10–15): 1 July 2010 (s 2(1) item 3)

s 98 — Liability of trustee

(1) Where a beneficiary of a trust estate who is under a legal disability is presently entitled to a share of the income of the trust estate, the trustee of the trust estate shall be assessed and liable to pay tax in respect of: (a) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident; and (b) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia; as if it were the income of an individual and were not subject to any deduction. (2) Where a beneficiary of a trust estate: (a) is deemed to be presently entitled to a share of the income of the trust estate of a year of income by virtue of the operation of subsection 95A(2); (aa) is a natural person and is not, in respect of that share of the income of the trust estate, a beneficiary in the capacity of a trustee of another trust estate; (b) is not a beneficiary to whom subsection 97A(1) or (1A) applies in relation to the year of income; and (c) is not under a legal disability; the trustee of the trust estate shall be assessed and liable to pay tax in respect of: (d) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident; and (e) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia; as if it were the income of an individual and were not subject to any deduction. (2A) If: (a) a beneficiary of a trust estate who is presently entitled to a share of the income of the trust estate: (i) is a non ‑ resident at the end of the year of income; and (ii) is not, in respect of that share of the income of the trust estate, a beneficiary in the capacity of a trustee of another trust estate; and (iii) is not a beneficiary to whom section 97A applies in relation to the year of income; and (iv) is not a beneficiary to whom subsection 97(3) applies; and (b) the trustee of the trust estate is not assessed and is not liable to pay tax under subsection (1) or (2) in respect of any part of that share of the net income of the trust estate; subsection (3) applies to the trustee in respect of: (c) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident; and (d) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia. (3) A trustee to whom this subsection applies in respect of an amount of net income is to be assessed and is liable to pay tax: (a) if the beneficiary is not a company—in respect of the amount of net income as if it were the income of an individual and were not subject to any deduction; or (b) if the beneficiary is a company—in respect of the amount of net income at the rate declared by the Parliament for the purposes of this paragraph. Note: If the trust estate’s net income includes a net capital gain, and the beneficiary is a company, Subdivision 115 ‑ C of the Income Tax Assessment Act 1997 affects the assessment of the trustee. (4) If: (a) a beneficiary of a trust estate (the first trust estate ) who is presently entitled to a share of the income of the first trust estate: (i) is, in respect of that share of the income of the first trust estate, a beneficiary in the capacity of a trustee of another trust estate; and (ii) is not a beneficiary to whom subsection 97(3) applies; and (b) a trustee of the other trust estate is a non ‑ resident at the end of the year of income; the trustee of the first trust estate is to be assessed and is liable to pay tax in respect of so much of that share of the net income of the first trust estate as is attributable to sources in Australia at the rate declared by the Parliament for the purposes of this subsection. Note: If the trust estate’s net income includes a net capital gain, Subdivision 115 ‑ C of the Income Tax Assessment Act 1997 affects the assessment of the trustee.

Amendment history: Amended by No 22 of 1942, effective 7 June 1942 (s 2) | Amended by No 48 of 1950, effective s 3–34 and 36: 14 Dec 1950 (s 2) | Repealed and substituted by No 12 of 1979, item 5 | item 13 | item 14 | item 15 | item 16, effective 13 Mar 1979 (s 2) | Amended by No 19 of 1980, item 12 | item 15 | item 16, effective 30 Apr 1980 (s 2) | Amended by No 108 of 1981, item 18 | item 27, effective s 4–25: 24 June 1981 (s 2) | Amended by No 29 of 1982, item 4 | item 14, effective s 3–24: 17 May 1982 (s 2(1)) | Amended by No 14 of 1983, item 18 | item 19 | item 55 | item 64 | item 65 | item 67, effective s 4: 14 Feb 1983 (s 2(2)) Remainder: 14 June 1983 (s 2(1)) | Amended by No 107 of 1989, effective s 9–23, 32 and Sch 1: 30 June 1989 (s 2(1)) | Amended by No 79 of 2007, Sch 3 item 115 | Sch 9 item 4 | Sch 9 item 98B | Sch 9 item 7 | Sch 9 item 99E | Sch 9 item 11 | Sch 9 item 115 | Sch 9 item 18 | Sch 9 item 19 | Sch 9 item 20 | Sch 9 item 802 | Sch 9 item 27 | Sch 9 item 28 | Sch 9 item 31 | Sch 9 item 32 | Sch 9 item 33 | Sch 10 item 99G, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5)

s 98A — Non ‑ resident beneficiaries assessable in respect of certain income

(1) Where the trustee of a trust estate is assessed and is liable to pay tax in respect of the whole or a part of a share of the net income of a trust estate of a year of income in pursuance of subsection 98(3), the assessable income of the beneficiary who is presently entitled to that share of the income of the trust estate shall include: (a) so much of the individual interest of the beneficiary in the net income of the trust estate as is attributable to a period when the beneficiary was a resident; and (b) so much of the individual interest of the beneficiary in the net income of the trust estate as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia. (2) Where the trustee of a trust estate is assessed and is liable to pay tax in respect of the whole or a part of a share of the net income of a trust estate of a year of income in pursuance of subsection 98(3): (a) there shall be deducted from the income tax assessed against the beneficiary the amount (in this subsection referred to as the relevant amount ) of the tax paid by the trustee in respect of the beneficiary’s interest in the net income of the trust estate; and (b) if the relevant amount is greater than the amount of the income tax assessed against the beneficiary—the Commissioner shall pay to the beneficiary an amount equal to the difference between those 2 amounts. Note: See Division 3A of Part IIB of the Taxation Administration Act 1953 for the rules about how the Commissioner must pay the entity. Division 3 of Part IIB allows the Commissioner to apply the amount owing as a credit against tax debts that the entity owes to the Commonwealth. (3) If a beneficiary of a trust estate who is presently entitled to a share of the income of the trust estate: (a) is not, in respect of that share of the income of the trust estate, a beneficiary in the capacity of a trustee of another trust estate; and (b) is a non ‑ resident at the end of the year of income; the assessable income of the beneficiary includes so much of the individual interest of the beneficiary in the net income of the trust estate as is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of the other trust estate is assessed and is liable to pay tax under subsection 98(4). (4) To the extent that subsection (3) includes an amount in the assessable income of a beneficiary of a trust estate, the amount is not included by subsection (1) or section 100.

Amendment history: Inserted by No 14 of 1983, effective s 4: 14 Feb 1983 (s 2(2)) Remainder: 14 June 1983 (s 2(1)) | Amended by No 79 of 2007, Sch 9 item 2 | Sch 9 item 3 | Sch 9 item 4 | Sch 9 item 5 | Sch 9 item 98B | Sch 9 item 10 | Sch 9 item 11 | Sch 9 item 16 | Sch 9 item 22 | Sch 9 item 25 | Sch 9 item 34, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5) | Amended by No 62 of 2011, Sch 2 item 1 | Sch 2 item 29 | Sch 2 item 30 | Sch 2 item 31 | Sch 2 item 32, effective Sch 1 (items 4, 5, 14), Sch 2 (items 1–7, 28–44, 51) and Sch 4 (items 1–32, 34): 29 June 2011 (s 2(1) items 2, 6)

s 98B — Deduction from beneficiary’s tax

(1) This section applies to a beneficiary of a trust estate for a year of income if the assessable income of the beneficiary of the year of income includes an amount covered by subsection (2). (2) This subsection covers an amount (the assessable amount ) if: (a) the amount is included in the assessable income of the beneficiary under one of the following: (i) section 97; (ii) subsection 98A(3); (iii) section 100; and (b) the amount does not represent income of the trust estate to which the beneficiary is presently entitled in the capacity of a trustee of another trust estate; and (c) the amount is reasonably attributable to: (i) an amount (the taxed net income ) in respect of which the trustee of another trust estate is assessed and liable to pay tax (the subsection 98(4) tax ) under subsection 98(4); or (ii) an amount (the taxed component ) in respect of which the trustee of an AMIT is assessed and liable to pay tax (the paragraph 276 ‑ 105(2)(c) tax ) because of paragraph 276 ‑ 105(2)(c) of the Income Tax Assessment Act 1997 . (3) A proportion of the subsection 98(4) tax or of the paragraph 276 ‑ 105(2)(c) tax (as applicable) is to be deducted from the income tax assessed against the beneficiary of the year of income. That proportion is the same as the proportion of the taxed net income or of the taxed component (as applicable) that gave rise to the assessable amount. Note: To work out the proportion of the taxed net income that gives rise to assessable income for a beneficiary of another trust estate, you would have regard to the share of the income of each interposed trust estate to which a beneficiary (including a beneficiary in the capacity of a trustee) is presently entitled. Example: The P Trust has two non ‑ resident trustee beneficiaries, the trustees of the S Trust and the H Trust. Each trustee is presently entitled to a 1/2 share of the income of the P Trust. The net income of the P Trust is $100,000. The trustee of the P Trust pays tax of $22,500 under subsection 98(4) in respect of the trustee of the S Trust’s interest and $22,500 under subsection 98(4) in respect of the trustee of the H Trust’s interest. The S Trust has a non ‑ resident beneficiary, G, who is presently entitled to a 1/3 share of the income of the S Trust. The net income of the S Trust is $30,000. Subsection 98A(3) includes $10,000 in G’s assessable income. The taxed net income of the P trust is $50,000. The proportion of that taxed net income that gave rise to the $10,000 being included in G’s assessable income is 1/3.This is because G had a 1/3 share of the income of the S Trust. $7,500 (1/3 x $22,500) is deducted from the income tax assessed against G. If section 97, subsection 98A(3) or section 100 also includes amounts in the assessable income of any beneficiaries of the H Trust, each of those beneficiaries also works out the amount of the deduction against the income tax assessed against them in the same way. (4) If the amount to be deducted under subsection (3) is greater than the amount of the income tax assessed against the beneficiary, the Commissioner must pay to the beneficiary an amount equal to the difference between those 2 amounts. Note: See Division 3A of Part IIB of the Taxation Administration Act 1953 for the rules about how the Commissioner must pay the entity. Division 3A of Part IIB allows the Commissioner to apply the amount owing as a credit against tax debts that the entity owes to the Commonwealth.

Amendment history: Inserted by No 79 of 2007, Sch 9 item 11 | Sch 9 item 12, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5) | Amended by No 62 of 2011, Sch 2 item 33, effective Sch 1 (items 4, 5, 14), Sch 2 (items 1–7, 28–44, 51) and Sch 4 (items 1–32, 34): 29 June 2011 (s 2(1) items 2, 6) | Amended by No 34 of 2014, Sch 2 item 14, effective Sch 2 (items 13, 14, 16): 30 May 2014 (s 2(1) item 3) | Amended by No 53 of 2016, Sch 6 item 5 | Sch 6 item 6 | Sch 6 item 7, effective Sch 3 (item 1), Sch 5 (items 1, 3, 6–28, 75), Sch 6 (items 1–20) and Sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4)

s 99 — Certain trust income to be taxed as income of an individual

(1) This section applies in relation to a trust estate in relation to a year of income only if section 99A does not apply in relation to that trust estate in relation to that year of income. (2) Where there is no part of the net income of a resident trust estate: (a) that is included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; (b) in respect of which the trustee of the trust estate is assessed and liable to pay tax in pursuance of section 98; or (c) that represents income to which a beneficiary is presently entitled that is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia; the trustee shall be assessed and is liable to pay tax on the net income of the trust estate as if it were the income of an individual who was a resident and were not subject to any deduction. (3) Where there is a part of the net income of a resident trust estate: (a) that is not included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; (b) in respect of which the trustee is not assessed and is not liable to pay tax in pursuance of section 98; and (c) that does not represent income to which a beneficiary is presently entitled that is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia; the trustee shall be assessed and is liable to pay tax on that part of the net income of the trust estate as if it were the income of an individual who was a resident and were not subject to any deduction. (4) Where there is no part of the net income of a trust estate that is not a resident trust estate: (a) that is included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; (b) in respect of which the trustee of the trust estate is assessed and liable to pay tax in pursuance of section 98; or (c) that is attributable to sources out of Australia; the trustee shall be assessed and is liable to pay tax on the net income of the trust estate as if it were the income of an individual and were not subject to any deduction. (5) Where there is a part of the net income of a trust estate that is not a resident trust estate: (a) that is attributable to sources in Australia; (b) that is not included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; and (c) in respect of which the trustee of the trust estate is not assessed and is not liable to pay tax in pursuance of section 98; the trustee shall be assessed and is liable to pay tax on that part of the net income of the trust estate as if it were the income of an individual and were not subject to any deduction.

Amendment history: Amended by No 22 of 1942, effective 7 June 1942 (s 2) | Repealed and substituted by No 110 of 1964, effective s 3–46: 23 Nov 1964 (s 2(1)) | Amended by No 51 of 1973, effective s 25(1): 25 June 1968 (s 25(2)) Remainder: 14 June 1973 (s 2) | Amended by No 12 of 1979, item 14 | item 15 | item 16, effective 13 Mar 1979 (s 2) | Amended by No 108 of 1981, item 18 | item 27 | item 124, effective s 4–25: 24 June 1981 (s 2)

s 99A — Certain trust income to be taxed at special rate

(2) This section does not apply in relation to a trust estate in relation to a year of income, being a trust estate: (a) that resulted from: (i) a will, a codicil or an order of a court that varied or modified the provisions of a will or a codicil; or (ii) an intestacy or an order of a court that varied or modified the application, in relation to the estate of a deceased person, of the provisions of the law relating to the distribution of the estates of persons who die intestate; (b) that consists of the property of a person who has become bankrupt, being property that has vested in The Official Receiver in Bankruptcy, or in a registered trustee, under the Bankruptcy Act 1966 ; (c) that is administered under Part XI of the Bankruptcy Act 1966 ; or (d) that consists of property of a kind referred to in paragraph 102AG(2)(c); if the Commissioner is of the opinion that it would be unreasonable that this section should apply in relation to that trust estate in relation to that year of income. (3) In forming an opinion for the purposes of subsection (2): (a) the Commissioner shall have regard to the circumstances in which and the conditions, if any, upon which, at any time, property (including money) was acquired by or lent to the trust estate, income was derived by the trust estate, benefits were conferred on the trust estate or special rights or privileges were conferred on or attached to property of the trust estate, whether or not the rights or privileges have been exercised; (b) if a person who has, at any time, directly or indirectly: (i) transferred or lent any property (including money) to, or conferred any benefits on, the trust estate; or (ii) conferred or attached any special right or privilege, or done any act or thing, either alone or together with another person or persons, that has resulted in the conferring or attaching of any special right or privilege, on or to property of the trust estate whether or not the right or privilege has been exercised; has not, at any time, directly or indirectly: (iii) transferred or lent any property (including money) to, or conferred any benefits on, another trust estate; or (iv) conferred or attached any special right or privilege, or done any act or thing, either alone or together with another person or persons, that has resulted in the conferring or attaching of any special right or privilege, on or to property of another trust estate, whether or not the right or privilege has been exercised; the Commissioner shall have regard to that fact; and (c) the Commissioner shall have regard to such other matters, if any, as he or she thinks fit. (3A) For the purposes of the application of paragraph (3)(a) in relation to a trust estate of the kind referred to in paragraph (2)(a), a reference in that first ‑ mentioned paragraph to the trust estate shall be read as including a reference to the person as a result of whose death the trust estate arose. (4) Where there is no part of the net income of a resident trust estate: (a) that is included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; (b) in respect of which the trustee of the trust estate is assessed and liable to pay tax in pursuance of section 98; or (c) that represents income to which a beneficiary is presently entitled that is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia; the trustee shall be assessed and is liable to pay tax on the net income of the trust estate at the rate declared by the Parliament for the purposes of this section. Note: If the trust estate’s net income includes a net capital gain, Subdivision 115 ‑ C of the Income Tax Assessment Act 1997 affects the assessment of the trustee. (4A) Where there is a part of the net income of a resident trust estate: (a) that is not included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; (b) in respect of which the trustee is not assessed and is not liable to pay tax in pursuance of section 98; and (c) that does not represent income to which a beneficiary is presently entitled that is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia; the trustee shall be assessed and is liable to pay tax on that part of the net income of the trust estate at the rate declared by the Parliament for the purposes of this section. Note: If the trust estate’s net income includes a net capital gain, Subdivision 115 ‑ C of the Income Tax Assessment Act 1997 affects the assessment of the trustee. (4B) Where there is no part of the net income of a trust estate that is not a resident trust estate: (a) that is included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; (b) in respect of which the trustee of the trust estate is assessed and liable to pay tax in pursuance of section 98; or (c) that is attributable to sources out of Australia; the trustee shall be assessed and is liable to pay tax on the net income of the trust estate at the rate declared by the Parliament for the purposes of this section. Note: If the trust estate’s net income includes a net capital gain, Subdivision 115 ‑ C of the Income Tax Assessment Act 1997 affects the assessment of the trustee. (4C) Where there is a part of the net income of a trust estate that is not a resident trust estate: (a) that is attributable to sources in Australia; (b) that is not included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; and (c) in respect of which the trustee of the trust estate is not assessed and is not liable to pay tax in pursuance of section 98; the trustee shall be assessed and is liable to pay tax on that part of the net income of the trust estate at the rate declared by the Parliament for the purposes of this section. Note: If the trust estate’s net income includes a net capital gain, Subdivision 115 ‑ C of the Income Tax Assessment Act 1997 affects the assessment of the trustee.

Amendment history: Inserted by No 110 of 1964, effective s 3–46: 23 Nov 1964 (s 2(1)) | Amended by No 51 of 1973, effective s 25(1): 25 June 1968 (s 25(2)) Remainder: 14 June 1973 (s 2) | Amended by No 126 of 1977, item 6, effective 10 Nov 1977 (s 2) | Amended by No 12 of 1979, item 16 | item 18, effective 13 Mar 1979 (s 2) | Amended by No 19 of 1980, effective 30 Apr 1980 (s 2) | Amended by No 108 of 1981, effective s 4–25: 24 June 1981 (s 2) | Amended by No 41 of 1998, Sch 6 item 2, effective s 4, Sch 1 (items 4–16, 18–26), Sch 2 (items 1–4), Sch 3 (items 1–3, 7(1)), Sch 4 (items 4, 5), Sch 5 (items 16, 18) and Sch 6 (items 1, 2, 4, 5, 7–13, 15–18, 27): 4 June 1998 (s 2(1)) Sch 1 (item 17): 9 Apr 1999 (s 2(2)) Sch 5 (items 17, 19): 12 Dec 1995 (s 2(5)) Sch 6 (item 3): 16 Dec 1985 (s 2(6)) Sch 6 (item 6): 1 Jan 1993 (s 2(7)) Sch 6 (item 14): never commenced (s 2(9)) Sch 6 (item 16): 1 July 1998 (s 2(10)) | Amended by No 169 of 1999, Sch 9 item 115 | Sch 10 item 115, effective Sch 2 (items 4, 5), Sch 3 (items 5–7), Sch 4 (items 16–19), Sch 7 (items 1–5, 10, 12) and Sch 9 (items 16–22): 10 Dec 1999 (s 2(1), (3)) Sch 5 (item 15): 22 Feb 1999 (s 2(2)) Sch 7 (items 6–9): 22 Sept 2002 (s 2(4)) Sch 9 (item 15): 22 Dec 1999 (s 2(5)) | Amended by No 41 of 2011, Sch 5 item 259, effective Sch 5 (items 15–17): 28 June 2011 (s 2(1) item 11) Sch 5 (items 57–73, 79, 176–367, 376–382, 412, 413): 27 June 2011 (s 2(1) items 17, 23)

s 99B — Receipt of trust income not previously subject to tax

(1) Where, at any time during a year of income, an amount, being property of a trust estate, is paid to, or applied for the benefit of, a beneficiary of the trust estate who was a resident at any time during the year of income, the assessable income of the beneficiary of the year of income shall, subject to subsection (2), include that amount. (2) The amount that, but for this subsection, would be included in the assessable income of a beneficiary of a trust estate under subsection (1) by reason that an amount, being property of the trust estate, was paid to, or applied for the benefit of, the beneficiary shall be reduced by so much (if any) of the amount, as represents: (a) corpus of the trust estate (except to the extent to which it is attributable to amounts derived by the trust estate that, if they had been derived by a taxpayer being a resident, would have been included in the assessable income of that taxpayer of a year of income); (b) an amount that, if it had been derived by a taxpayer being a resident, would not have been included in the assessable income of that taxpayer of a year of income; (ba) an amount that is non ‑ assessable non ‑ exempt income of the beneficiary because of section 802 ‑ 17 of the Income Tax Assessment Act 1997 ; (c) an amount: (i) that is or has been included in the assessable income of the beneficiary in pursuance of section 97; or (ii) in respect of which the trustee of the trust estate is or has been assessed and liable to pay tax in pursuance of section 98, 99 or 99A; or (iii) that is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of the other trust estate is assessed and is liable to pay tax under subsection 98(4); (d) an amount that is or has been included in the assessable income of any taxpayer (other than a company) under section 102AAZD; or (e) if the beneficiary is a company—an amount that is or has been included in the assessable income of the beneficiary under section 102AAZD. (2A) An amount that is not included in a beneficiary’s assessable income because of paragraph (2)(d) or (e) is not assessable income and is not exempt income. (3) In paragraphs (2)(d) and (e): company means a company other than a company in the capacity of a trustee.

Amendment history: Inserted by No 12 of 1979, item 16, effective 13 Mar 1979 (s 2) | Amended by No 5 of 1991, item 100 | item 11 | item 12 | item 16 | item 78 | item 204 | item 38, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 66 of 2003, Sch 3 item 32 | Sch 3 item 118, effective s 4, Sch 1 and Sch 3 (items 1–46, 47, 48, 140(1), (5), (7)): 30 June 2003 (s 2(1) items 1, 2, 4–6, 14) Sch 3 (item 46A): 29 June 2002 (s 2(1) item 5A) | Amended by No 79 of 2007, Sch 9 item 6, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5)

s 99C — Determining whether property is applied for benefit of beneficiary

(1) In determining for the purposes of section 99B whether any amount has been applied for the benefit of a beneficiary of a trust estate, regard shall be had to all benefits that have accrued at any time to the beneficiary (whether or not the beneficiary had rights at law or in equity in or to those benefits) as a result of the derivation of, or in relation to, that amount, irrespective of the nature or form of the benefits. (2) Without limiting the generality of subsection (1), an amount shall be taken, for the purposes of section 99B, to have been applied for the benefit of a beneficiary if: (a) whether by re ‑ investment, accumulation, capitalization or otherwise, and whether directly or indirectly, the amount has been so dealt with that it will, at a future time, and whether in the form of income or not, enure for the benefit of the beneficiary; (b) the derivation of the amount has operated to increase the value to the beneficiary of any property or rights of any kind held by or for the benefit of the beneficiary; (c) the beneficiary has received or become entitled to receive any benefit (including a loan or a repayment, in whole or in part, of a loan, or any other payment of any kind) provided directly or indirectly out of that amount or out of property or money that was available for the purpose by reason of the derivation of the amount; (d) the beneficiary has power, by means of the exercise by the beneficiary of any power of appointment or revocation or otherwise, to obtain, whether with or without the consent of any other person, the beneficial enjoyment of the amount; or (e) the beneficiary has directly or indirectly assigned to another person his or her interest in the amount or is able, in any manner whatsoever, and whether directly or indirectly, to control the application of that interest.

Amendment history: Inserted by No 12 of 1979, effective 13 Mar 1979 (s 2) | Amended by No 41 of 2011, Sch 5 item 260, effective Sch 5 (items 15–17): 28 June 2011 (s 2(1) item 11) Sch 5 (items 57–73, 79, 176–367, 376–382, 412, 413): 27 June 2011 (s 2(1) items 17, 23)

s 99D — Refund of tax to non ‑ resident beneficiary

(1) Where: (a) a trustee of a trust estate has been assessed and was liable to pay tax in pursuance of subsection 99(2) or (3) or subsection 99A(4) or (4A) in respect of the net income or a part of the net income of the trust estate of a year of income (in this subsection referred to as the relevant year of income ), being the year of income that commenced on 1 July 1978 or a subsequent year of income; (b) the amount (in this subsection referred to as the relevant tax amount ) of the tax so assessed in respect of that net income or that part of that net income has been paid; (c) the trustee of the trust estate has, in accordance with the terms of the trust, paid an amount (in this subsection referred to as the distributed amount ) of the income of the trust estate of the relevant year of income to a beneficiary of the trust estate; (d) before the expiration of 60 days after the date on which the payment was made, or within such further period as the Commissioner allows, the beneficiary, by writing signed by or on behalf of the beneficiary, makes an application to the Commissioner for a refund under this section in relation to the distributed amount; and (e) the beneficiary satisfies the Commissioner that the whole or a part (which whole or part, as the case may be, is in this subsection referred to as the non ‑ Australian distributed amount ) of the distributed amount: (i) is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia; (ii) was taken into account in calculating the net income of the trust estate of the relevant year of income; and (iii) is not income that, by the operation of section 100A, is deemed not to have been paid to or applied for the benefit of the beneficiary or to be income to which the beneficiary is not presently entitled; the Commissioner shall, subject to subsection (2), refund to the beneficiary so much (if any) of the relevant tax amount as is attributable to the non ‑ Australian distributed amount, reduced by so much of any refund or credit to which the trustee is or was entitled in respect of the relevant tax amount as is attributable to the non ‑ Australian distributed amount. (2) The Commissioner may refuse to make a refund of tax in relation to an amount paid to a beneficiary of a trust estate if the Commissioner considers that the whole or a part of that amount was paid to the beneficiary by the trustee for the purpose or for purposes that included the purpose of enabling the beneficiary to become entitled to a refund of tax under this section in relation to that amount.

Amendment history: Inserted by No 12 of 1979, effective 13 Mar 1979 (s 2) | Amended by No 108 of 1981, effective s 4–25: 24 June 1981 (s 2)

s 99E — Later trust not taxed on income already taxed under subsection 98(4)

Sections 98, 99 and 99A do not apply to so much of the net income of a trust estate of a year of income as is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of the other trust estate is assessed and is liable to pay tax under subsection 98(4).

Amendment history: Inserted by No 79 of 2007, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5)

s 99G — Amounts covered by withholding requirement

Subsection 98(4) does not apply to so much of the net income of a trust estate as represents income to which a beneficiary is presently entitled and gives rise to an amount from which an entity is required to withhold an amount under Subdivision 12 ‑ H in Schedule 1 to the Taxation Administration Act 1953 .

Amendment history: Inserted by No 79 of 2007, Sch 10 item 12, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5) | Repealed and substituted by No 32 of 2008, Sch 1 item 6, effective Sch 1 (items 4–11, 58): 23 June 2008 (s 2)

s 99GA — Amounts covered by sovereign immunity exemption

Subsection 98(3) does not apply to so much of the net income of a trust estate as represents income to which a beneficiary is presently entitled and gives rise to an amount that is non ‑ assessable non ‑ exempt income because of: (a) Division 880 of the Income Tax Assessment Act 1997 ; or (b) Division 880 of the Income Tax (Transitional Provisions) Act 1997 .

Amendment history: Inserted by No 34 of 2019, effective Sch 1 (items 15, 16), Sch 3 and Sch 4 (items 1, 2): 1 July 2019 (s 2(1) item 2)

s 99H — Late payments

(1) This section applies if: (a) a beneficiary of a trust estate that is a managed investment trust is presently entitled to a share of the income of the trust estate of a year of income; and (b) the beneficiary is a non ‑ resident at the end of the year of income; and (c) all or part of that share of the net income of the trust estate (the late amount ) has not been paid to the beneficiary by the end of the period applicable under subsection 12 ‑ 405(4) in Schedule 1 to the Taxation Administration Act 1953 ; and Note: That subsection requires payments to be made before the end of 3 months after the end of the relevant year of income or within a longer period allowed by the Commissioner. (d) if the late amount had been paid to the beneficiary within that period, the payment would have been a fund payment made by the trustee of the managed investment trust. (2) This Division applies as if that portion of the beneficiary’s income that represents the late amount were income to which no beneficiary was presently entitled. (3) In working out the net income of the trust estate for the year of income for the purposes of subsection (1), disregard these amounts ( excluded amounts ): (a) a dividend (as defined in Division 11A of Part III) that is subject to, or exempted from, a requirement to withhold under Subdivision 12 ‑ F in Schedule 1 to the Taxation Administration Act 1953 ; (b) interest (as so defined) that is subject to, or exempted from, such a requirement; (c) a royalty that is subject to, or exempted from, such a requirement; (d) a capital gain or capital loss from a CGT event that happens in relation to a CGT asset that is not taxable Australian property; (e) amounts that are not from a source in Australia; and disregard deductions relating to excluded amounts.

Amendment history: Inserted by No 79 of 2007, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5) | Amended by No 32 of 2008, effective Sch 1 (items 4–11, 58): 23 June 2008 (s 2) | Amended by No 88 of 2009, Sch 5 item 313, effective s 4, Sch 1, Sch 3 (items 2–4), Sch 4 (items 1, 5) and Sch 5 (items 21–112, 306–318): 18 Sept 2009 (s 2(1) items 1, 2, 6, 7, 10) Sch 2 (items 2, 3): 1 Oct 2009 (s 2(1) item 3)

s 100 — Beneficiary assessable in respect of certain trust income

(1) The assessable income of any beneficiary who: (a) is under a legal disability or is deemed to be presently entitled to any of the income of a trust estate by virtue of the operation of subsection 95A(2); and (b) is a beneficiary in more than one trust estate or derives income from any other source; shall include: (c) so much of the individual interest of the beneficiary in the net income of the trust estate or of each of the trust estates as is attributable to a period when the beneficiary was a resident; and (d) so much of the individual interest of the beneficiary in the net income of the trust estate or of each of the trust estates as is attributable to a period when the beneficiary was not a resident and is also attributed to sources in Australia. Note: An amount is not included in assessable income under this section to the extent that subsection 98A(3) already includes it: see subsection 98A(4). (1AA) If an amount is included in the assessable income of a beneficiary of a trust estate because of Subdivision 115 ‑ C or 207 ‑ B of the Income Tax Assessment Act 1997 , for the purposes of paragraph (1)(b), treat the beneficiary as deriving income from another source. (1A) If: (a) a beneficiary in a trust estate is under a legal disability or is deemed to be presently entitled to any of the income of the trust estate by virtue of the operation of subsection 95A(2); and (b) the beneficiary is not a beneficiary in any other trust estate and does not derive income from any other source; and (c) the beneficiary would receive a refund of tax offsets under Division 67 of the Income Tax Assessment Act 1997 for a particular year of income if the following amounts were included in the assessable income of the beneficiary for that year: (i) so much of the individual interest of the beneficiary in the net income of the trust estate for that year as is attributable to a period when the beneficiary was a resident; (ii) so much of the individual interest of the beneficiary in the net income of the trust estate for that year as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia; then those amounts are included in the assessable income of the beneficiary for that year. (1B) If a beneficiary in a trust estate who is under a legal disability or is deemed to be presently entitled to any of the income of the trust estate by virtue of the operation of subsection 95A(2): (a) is a resident at the end of the year of income; and (b) is not a beneficiary in any other trust estate and does not derive income from any other source; the assessable income of the beneficiary includes so much of the individual interest of the beneficiary in the net income of the trust estate as is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of the other trust estate is assessed and is liable to pay tax under subsection 98(4). Note 2: A credit is available under section 98B for an appropriate part of the subsection 98(4) tax. Note 3: An amount is not included in assessable income under this section to the extent that subsection 98A(3) already includes it: see subsection 98A(4). (1C) If a beneficiary in a trust estate who is under a legal disability or is deemed to be presently entitled to any of the income of the trust estate by virtue of the operation of subsection 95A(2): (a) is a resident at the end of the year of income; and (b) is not a beneficiary in any other trust estate and does not derive income from any other source; the assessable income of the beneficiary includes so much of the individual interest of the beneficiary in the net income of the trust estate as is represented by or reasonably attributable to a payment from which an entity was required to withhold an amount under Subdivision 12 ‑ H in Schedule 1 to the Taxation Administration Act 1953 . Note: A credit is available under section 18 ‑ 50 in Schedule 1 to the Taxation Administration Act 1953 for an appropriate part of the amount withheld. (2) There shall be deducted from the income tax assessed against a beneficiary to whom subsection (1) or (1A) applies (or a beneficiary under a legal disability whose assessable income is increased as a result of Subdivision 115 ‑ C or 207 ‑ B of the Income Tax Assessment Act 1997 ) the tax paid or payable by any trustee in respect of that beneficiary’s interest in the net income of the trust estate. (3) However, an amount of tax is not to be deducted under subsection (2) from the income tax assessed against a beneficiary to the extent that the amount is deducted under section 98B from the income tax assessed against the beneficiary.

Amendment history: Amended by No 12 of 1979, item 11 | item 16 | item 17 | item 18, effective 13 Mar 1979 (s 2) | Amended by No 19 of 1980, item 14 | item 15, effective 30 Apr 1980 (s 2) | Amended by No 108 of 1981, item 17 | item 18 | item 23 | item 27 | item 124, effective s 4–25: 24 June 1981 (s 2) | Amended by No 57 of 2002, Sch 4 item 1 | Sch 4 item 2, effective Sch 1: 1 July 2001 (s 2(1) item 2) Sch 3, 5, 6, Sch 9 (items 1–8, 41–44), Sch 11 (items 1, 5), Sch 12 ,(items 8–10, 14, 15): 3 July 2002 (s 2(1) items 4, 7, 8, 16, 18, 24, 27) Sch 4 (items 1, 2, 4) and Sch 12 (item 42): 1 July 2000 (s 2(1) items 5, 46) Sch 10: 17 Nov 1999 (s 2(1) item 17) Sch 12 (items 4, 11): 1 July 1998 (s 2(1) items 21, 25) Sch 12 (items 5, 6): 21 Dec 1998 (s 2(1) item 22) Sch 12 (item 7): 7 Dec 1998 (s 2(1) item 23) Sch 12 (items 12, 13): 23 June 1998 (s 2(1) item 26) Sch 12 (item 38): 1 Oct 1997 (s 2(1) item 42) Sch 12 (item 40): 22 Dec 1999 (s 2(1) item 44) Sch 12 (items 43, 65): 1 July 1997 (s 2(1) items 47, 63) | Amended by No 79 of 2007, Sch 9 item 4 | Sch 9 item 98B | Sch 9 item 9 | Sch 9 item 10 | Sch 9 item 11 | Sch 9 item 12 | Sch 9 item 16 | Sch 9 item 22 | Sch 10 item 6 | Sch 10 item 7, effective Sch 1 (items 1–27, 33–38, 43(1), (4), (5)), Sch 6 (items 1, 2, 8), Sch 7 (items 1–16), Sch 9 (items 1–13, 30–33) and Sch 10 (items 3–9, 32): 21 June 2007 (s 2(1) items 2, 4, 6) Sch 8 (items 1, 4–11, 26(1), (2) and (4)): 1 July 2007 (s 2(1) item 5) | Amended by No 62 of 2011, Sch 2 item 6 | Sch 2 item 34 | Sch 2 item 35 | Sch 2 item 36 | Sch 2 item 37 | Sch 2 item 38, effective Sch 1 (items 4, 5, 14), Sch 2 (items 1–7, 28–44, 51) and Sch 4 (items 1–32, 34): 29 June 2011 (s 2(1) items 2, 6)

s 100AA — Failure to pay or notify present entitlement of exempt entity

(1) Subsection (3) applies if: (a) an exempt entity is presently entitled to an amount of the income of a trust estate; and (b) the exempt entity is not an exempt Australian government agency (within the meaning of the Income Tax Assessment Act 1997 ); and (c) at the end of 2 months after the end of the relevant income year, the trustee has failed to notify the exempt entity in writing of the present entitlement. (2) For the purposes of this section, treat the trustee as giving the exempt entity notice in writing of the present entitlement at a time to the extent that the trustee pays the exempt entity the amount of the present entitlement at that time. (3) For the purposes of this Act, treat the exempt entity as not being presently entitled, and having never been presently entitled, to the amount mentioned in paragraph (1)(a) of the income of the trust estate, to the extent that the trustee failed to notify the exempt entity of that amount as mentioned in paragraph (1)(c). (4) However, subsection (3) does not apply if the Commissioner decides that the failure mentioned in paragraph (1)(c) of the trustee should be disregarded. (5) In making a decision under subsection (4) (or refusing to make such a decision), the Commissioner must have regard to the following: (a) the circumstances that led to the failure mentioned in paragraph (1)(c); (b) the extent to which the trustee has taken action to try to correct the failure and if so, how quickly that action was taken; (c) whether this section has operated previously in relation to the trustee, and if so, the circumstances in which this occurred; (d) any other matters that the Commissioner considers relevant. (6) If subsection (3) applies, for the purposes of any application of section 99A in relation to the trust estate in relation to the relevant year of income, treat the trust estate as a resident trust estate. (7) This section does not apply in relation to a trust estate that is a managed investment trust (within the meaning of the Income Tax Assessment Act 1997 ) in relation to a year of income.

Amendment history: Inserted by No 62 of 2011, Sch 2 item 6, effective Sch 1 (items 4, 5, 14), Sch 2 (items 1–7, 28–44, 51) and Sch 4 (items 1–32, 34): 29 June 2011 (s 2(1) items 2, 6) | Amended by No 53 of 2016, Sch 6 item 8, effective Sch 3 (item 1), Sch 5 (items 1, 3, 6–28, 75), Sch 6 (items 1–20) and Sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4)

s 100AB — Adjusted Division 6 percentage exceeding benchmark percentage: present entitlement of exempt entity

(1) Subsection (2) applies if: (a) an exempt entity is presently entitled to an amount of the income of a trust estate; and (b) the exempt entity is not an exempt Australian government agency (within the meaning of the Income Tax Assessment Act 1997 ); and (c) the exempt entity’s adjusted Division 6 percentage of the income of the trust estate exceeds the benchmark percentage determined under subsection (3). (2) Subject to subsection 100AA(3), for the purposes of this Act, treat the exempt entity as not being presently entitled, and having never been presently entitled, to the amount of the income of the trust estate mentioned in paragraph (1)(a) of this section, to the extent that ensures that the exempt entity’s adjusted Division 6 percentage of the income of the trust estate equals the benchmark percentage determined under subsection (3) of this section. (3) Determine the benchmark percentage by working out the following fraction (expressed as a percentage): (4) A trust estate’s adjusted net income for a year of income is its net income for that year of income, with the following adjustments: (a) firstly, in determining that net income, disregard any capital gain or franked distribution to the extent to which a beneficiary of the trust estate or the trustee is specifically entitled to that gain or distribution; (b) next, in determining the net capital gain (if any) of the trust for the year of income, disregard steps 3 and 4 of the method statement in subsection 102 ‑ 5(1) (CGT discount and small business concessions); (c) next, reduce that net income by amounts (if any) that do not represent net accretions of value to the trust estate in that year of income (other than amounts included in that net income under Part IVA). (5) Subsection (2) does not apply in relation to a trust estate in relation to a year of income if the Commissioner is of the opinion that it would be unreasonable that the subsection should apply in relation to that trust estate in relation to that year of income. (6) In forming an opinion for the purposes of subsection (5), the Commissioner must consider the following matters: (a) the circumstances that led to the exempt entity’s adjusted Division 6 percentage exceeding the benchmark percentage determined under subsection (3); (b) the extent to which the exempt entity’s adjusted Division 6 percentage exceeds that benchmark percentage; (c) the extent to which the exempt entity actually received distributions from the trust estate in respect of the year of income; (d) the extent to which other beneficiaries of the trust estate were entitled to receive distributions of, or otherwise benefit from, amounts representing the adjusted net income of the trust estate ; (e) any other matters that the Commissioner considers relevant. (7) If subsection (2) applies, for the purposes of any application of section 99A in relation to the trust estate in relation to the relevant year of income, treat the trust estate as a resident trust estate. (8) This section does not apply in relation to a trust estate that is a managed investment trust (within the meaning of the Income Tax Assessment Act 1997 ) in relation to a year of income.

Amendment history: Inserted by No 62 of 2011, Sch 2 item 3, effective Sch 1 (items 4, 5, 14), Sch 2 (items 1–7, 28–44, 51) and Sch 4 (items 1–32, 34): 29 June 2011 (s 2(1) items 2, 6) | Amended by No 53 of 2016, Sch 6 item 9, effective Sch 3 (item 1), Sch 5 (items 1, 3, 6–28, 75), Sch 6 (items 1–20) and Sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4)

s 100A — Present entitlement arising from reimbursement agreement

(1) Where: (a) apart from this section, a beneficiary of a trust estate who is not under any legal disability is presently entitled to a share of the income of the trust estate; and (b) the present entitlement of the beneficiary to that share or to a part of that share of the income of the trust estate (which share or part, as the case may be, is in this subsection referred to as the relevant trust income ) arose out of a reimbursement agreement or arose by reason of any act, transaction or circumstance that occurred in connection with, or as a result of, a reimbursement agreement; the beneficiary shall, for the purposes of this Act, be deemed not to be, and never to have been, presently entitled to the relevant trust income. (2) Where: (a) apart from this section, a beneficiary of a trust estate who is not under any legal disability would, by reason that income of the trust estate was paid to, or applied for the benefit of, the beneficiary, be deemed to be presently entitled to income of the trust estate; and (b) that income or a part of that income (which income or part, as the case may be, is in this subsection referred to as the relevant trust income ) was paid to, or applied for the benefit of, the beneficiary as a result of a reimbursement agreement or as a result of any act, transaction or circumstance that occurred in connection with, or as a result of, a reimbursement agreement; the relevant trust income shall, for the purposes of this Act, be deemed not to have been paid to, or applied for the benefit of, the beneficiary. (3) In the preceding provisions of this section: (a) a reference to income of a trust estate to which a beneficiary is, apart from this section, presently entitled shall be read as not including a reference to: (i) income of the trust estate to which the beneficiary is presently entitled in the capacity of a trustee of another trust estate, being income that was paid to, or applied for the benefit of, the beneficiary before 6 March 1980; or (ii) income that was paid to, or applied for the benefit of, the beneficiary before 12 June 1978; and (b) a reference to income of a trust estate that was paid to, or applied for the benefit of, a beneficiary of the trust estate shall be read as not including a reference to: (i) income of the trust estate that, before 6 March 1980, was paid to, or applied for the benefit of, the beneficiary in the capacity of a trustee of another trust estate; or (ii) income of the trust estate that was paid to, or applied for the benefit of, the beneficiary before 12 June 1978. (3A) Where: (a) apart from this section, a beneficiary (in this subsection referred to as the trustee beneficiary ) of a trust estate is presently entitled to a share of the income of the trust estate in the capacity of a trustee of another trust estate (in this subsection referred to as the interposed trust estate ); (b) apart from this subsection, the trustee beneficiary would, by virtue of subsection (1), be deemed not to be, and never to have been, presently entitled to that share or a part of that share of the income of the first ‑ mentioned trust estate (which share or part is in this subsection referred to as the relevant trust income ); and (c) apart from this section, a beneficiary of the interposed trust estate is or was, or beneficiaries of the interposed trust estate are or were, presently entitled, or deemed to be presently entitled, to any income of the interposed trust estate (in this subsection referred to as the distributable trust income ) that is attributable to the relevant trust income; subsection (1) does not apply, and shall be deemed never to have applied, in relation to the trustee beneficiary, in relation to any part of the relevant trust income to which the distributable trust income is attributable. (3B) Where: (a) apart from this section, a beneficiary (in this subsection referred to as the trustee beneficiary ) of a trust estate would, by reason that income of the trust estate was paid to, or applied for the benefit of, the trustee beneficiary, be deemed to be presently entitled to income of the trust estate in the capacity of a trustee of another trust estate (in this subsection referred to as the interposed trust estate ); (b) apart from this subsection, that income or a part of that income (which income or part is in this subsection referred to as the relevant trust income ) would, by virtue of subsection (2), be deemed not to have been paid to, or applied for the benefit of, the trustee beneficiary; and (c) apart from this section, a beneficiary of the interposed trust estate is or was, or beneficiaries of the interposed trust estate are or were, presently entitled, or deemed to be presently entitled, to any income of the interposed trust estate (in this subsection referred to as the distributable trust income ) that is attributable to the relevant trust income; subsection (2) does not apply, and shall be deemed never to have applied, in relation to the trustee beneficiary, in relation to any part of the relevant trust income to which the distributable trust income is attributable. (3C) A reference in paragraph (3A)(c) or (3B)(c) to a beneficiary of a trust estate shall be read as not including a reference to a beneficiary who is under a legal disability. (4) Where subsection (1) or (2) applies in relation to any income of a trust estate of a year of income: (a) in the application of this Division in relation to the trust estate in relation to the year of income, section 99A shall be read as if subsections (2), (3) and (3A) of that section were omitted; and (b) for the purposes of any application of section 99A in relation to the trust estate in relation to the year of income, the trust estate shall be deemed to be a resident trust estate. (5) For the purposes of subsection (1), but without limiting the generality of that subsection, where: (a) a reimbursement agreement was entered into at or after the time when a person became a beneficiary of a trust estate (whether the person became a beneficiary of the trust estate before or after the commencement of this section); and (b) the amount (in this subsection referred to as the increased amount ) of the share of the income of the trust estate to which the beneficiary is presently entitled exceeds the amount (in this subsection referred to as the original amount ) of the income of the trust estate to which the beneficiary would have been, or could reasonably be expected to have been, presently entitled if the reimbursement agreement had not been entered into or if an act, transaction or circumstance that occurred in connection with, or as a result of, the reimbursement agreement had not occurred; the present entitlement of the beneficiary to so much of the increased amount as exceeds the original amount shall be taken to have arisen out of the reimbursement agreement. (6) For the purposes of subsection (2), but without limiting the generality of that subsection, where: (a) a reimbursement agreement was entered into at or after the time when a person became a beneficiary of a trust estate (whether the person became a beneficiary of the trust estate before or after the commencement of this section); and (b) income of the trust estate was paid to, or applied for the benefit of, the beneficiary and the amount (in this subsection referred to as the increased amount ) of that income exceeds the amount (in this subsection referred to as the original amount ) that would have been, or could reasonably be expected to have been, paid to, or applied for the benefit of, the beneficiary if the reimbursement agreement had not been entered into or if an act, transaction or circumstance that occurred in connection with, or as a result of, the reimbursement agreement had not occurred; so much of the increased amount as exceeds the original amount shall be taken to be income of the trust estate that was paid to, or applied for the benefit of, the beneficiary as a result of the reimbursement agreement. (6A) Where: (a) subsection (1) or (2) applies, or would but for subsection (3A) or (3B) apply, in relation to a beneficiary of a trust estate in relation to a reimbursement agreement in relation to any income of the trust estate; and (b) as part of, under or in connection with the reimbursement agreement, the beneficiary incurred or incurs a loss or outgoing after 5 March 1980 in respect of which a deduction has been allowed or would, but for this subsection, be allowable; then, notwithstanding any other provision of this Act, a deduction shall be deemed not to have been, or not to be, allowable, as the case may be, in respect of that loss or outgoing. (6B) Where subsection (6A) deems a deduction not to have been, or not to be, allowable in respect of a loss or outgoing incurred by a taxpayer in the acquisition of property that, for the purposes of the application of this Act and the Income Tax Assessment Act 1997 in relation to the taxpayer is or was trading stock, then, notwithstanding any other provision of this Act or that Act, the cost or cost price of that property, for the purposes of the application of Subdivision B of Division 2 of Part III of this Act or Division 70 (Trading stock) or 385 (Primary production) of the Income Tax Assessment Act 1997 in relation to that property in relation to the taxpayer, shall be taken to be, and at all times to have been, nil. (7) Subject to subsection (8), a reference in this section, in relation to a beneficiary of a trust estate, to a reimbursement agreement shall be read as a reference to an agreement, whether entered into before or after the commencement of this section, that provides for the payment of money or the transfer of property to, or the provision of services or other benefits for, a person or persons other than the beneficiary or the beneficiary and another person or other persons. (8) A reference in subsection (7) to an agreement shall be read as not including a reference to an agreement that was not entered into for the purpose, or for purposes that included the purpose, of securing that a person who, if the agreement had not been entered into, would have been liable to pay income tax in respect of a year of income would not be liable to pay income tax in respect of that year of income or would be liable to pay less income tax in respect of that year of income than that person would have been liable to pay if the agreement had not been entered into. (9) For the purposes of subsection (8), an agreement shall be taken to have been entered into for a particular purpose, or for purposes that included a particular purpose, if any of the parties to the agreement entered into the agreement for that purpose, or for purposes that included that purpose, as the case may be. (10) A reference in subsection (7) to the payment of money to a person or persons shall be read as including a reference to the payment of money to a person or persons by way of loan. (11) A reference in this section to a person shall be read as including a reference to a person in the capacity of a trustee. (12) For the purposes of this section, an agreement that provides for a person to release, abandon, fail to demand payment of or postpone payment of, a debt owed by another person shall be deemed to be an agreement that provides for the payment of money to that other person. (13) In this section: agreement means any agreement, arrangement or understanding, whether formal or informal, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings, but does not include an agreement, arrangement or understanding entered into in the course of ordinary family or commercial dealing. Note: Section 960 ‑ 255 of the Income Tax Assessment Act 1997 may be relevant to determining family relationships for the purposes of the definition of agreement . property includes a chose in action and also includes an estate, interest, right or power, whether at law or in equity, in or over property.

Amendment history: Inserted by No 22 of 1942, effective 7 June 1942 (s 2) | Repealed and substituted by No 11 of 1947, effective 3 June 1947 (s 2) | Repealed by No 48 of 1950, effective s 3–34 and 36: 14 Dec 1950 (s 2) | Inserted by No 12 of 1979, item 20, effective 13 Mar 1979 (s 2) | Amended by No 19 of 1980, effective 30 Apr 1980 (s 2) | Amended by No 108 of 1981, effective s 4–25: 24 June 1981 (s 2) | Amended by No 29 of 1982, effective s 3–24: 17 May 1982 (s 2(1)) | Amended by No 121 of 1997, Sch 5 item 77 | Sch 5 item 78 | Sch 5 item 79, effective s 4: 8 July 1997 (s 2(1)) Sch 2 (items 18–37), Sch 3 (items 31–61), Sch 4 (items 63–138), Sch 5 (items 43–93), Sch 6 (items 68–132), Sch 7 (items 5–7), Sch 8 (items 32–51), Sch 9 (items 16–40), Sch 10 (items 12–15), Sch 11 (items 37–57) and Sch 12 (items 15–23): 1 July 1997 (s 2(3), (5)) | Amended by No 144 of 2008, Sch 14 item 14, effective Sch 14 (items 7–58): 10 Dec 2008 (s 2(1) item 36)

s 101 — Discretionary trusts

For the purposes of this Act, where a trustee has a discretion to pay or apply income of a trust estate to or for the benefit of specified beneficiaries, a beneficiary in whose favour the trustee exercises the trustee’s discretion shall be deemed to be presently entitled to the amount paid to the beneficiary or applied for the beneficiary’s benefit by the trustee in the exercise of that discretion.

Amendment history: Amended by No 110 of 1964, effective s 3–46: 23 Nov 1964 (s 2(1)) | Amended by No 41 of 2011, Sch 5 item 261 | Sch 5 item 262 | Sch 5 item 263, effective Sch 5 (items 15–17): 28 June 2011 (s 2(1) item 11) Sch 5 (items 57–73, 79, 176–367, 376–382, 412, 413): 27 June 2011 (s 2(1) items 17, 23)

s 101A — Income of deceased received after death

(1) Where in the year of income, the trustee of the estate of a deceased person receives any amount which would have been assessable income in the hands of the deceased person if it had been received by him or her during his or her lifetime, that amount shall be included in the assessable income of that year of the trust estate and shall be deemed to be income to which no beneficiary is presently entitled. (2) Subsection (1) does not apply in relation to an amount received by the trustee of the estate of a deceased person to the extent to which, if it had been received by the deceased person during his or her lifetime, it would have been included in the assessable income of that person by virtue of section 83 ‑ 10 or 83 ‑ 80 of the Income Tax Assessment Act 1997 . (3) To avoid doubt, if in the year of income an amount is included in the assessable income of a deceased taxpayer under Division 82 or 302 of the Income Tax Assessment Act 1997 in respect of a payment received by the trustee of the estate of the deceased taxpayer, that amount shall be included in the assessable income of that year of income of the trust estate. (4) This section does not apply in relation to any amount received by the trustee of the estate of a deceased person if the amount is a farm management deposit, of which the deceased person was the owner, that has become repayable.

Amendment history: Inserted by No 58 of 1941, effective s 27: 13 Oct 1939 (s 27(2)) Remainder: 31 Dec 1941 | Amended by No 123 of 1978, effective 13 Oct 1978 (s 2) | Amended by No 47 of 1984, effective 25 June 1984 (s 2) | Amended by No 85 of 1998, Sch 2G item 10, effective Sch 1: 2 Jan 1999 (s 2(2)) | Amended by No 15 of 2007, Sch 1 item 80 | Sch 1 item 81 | Sch 1 item 82 | Sch 1 item 83, effective Sch 1 (items 1–8, 22–149, 406(1)–(3)) and Sch 3 (items 6, 7): 15 Mar 2007 (s 2(1) items 2, 6) | Amended by No 79 of 2010, Sch 4 item 22, effective Sch 1 (items 1, 2, 17–26, 53, 57, 66), Sch 3 (item 1), Sch 4 (items 1, 9–37, 51) and Sch 5 (items 1, 3–5, 13): 1 July 2010 (s 2(1) items 2, 4) Sch 2 (items 1, 10–15): 1 July 2010 (s 2(1) item 3) | Amended by No 41 of 2011, Sch 5 item 264 | Sch 5 item 265, effective Sch 5 (items 15–17): 28 June 2011 (s 2(1) item 11) Sch 5 (items 57–73, 79, 176–367, 376–382, 412, 413): 27 June 2011 (s 2(1) items 17, 23)

s 102 — Revocable trusts

(1) Where a person has created a trust in respect of any income or property (including money) and: (a) the person has power, whenever exercisable, to revoke or alter the trusts so as to acquire a beneficial interest in the income derived by the trustee during the year of income, or the property producing that income, or any part of that income or property; or (b) income is, under that trust, in the year of income, payable to or accumulated for, or applicable for the benefit of a child or children of that person who is or are under the age of 18 years; the Commissioner may assess the trustee to pay income tax, under this section, and the trustee shall be liable to pay the tax so assessed. (2) The amount of the tax payable in pursuance of this section shall be the amount by which the tax actually payable on the person’s own taxable income by the person who created the trust is less than the tax which would have been payable by the person if he or she had received, in addition to any other income derived by the person, so much of the net income of the trust estate as: (a) is attributable to the property in which he or she has power to acquire the beneficial interest; (b) represents the income, or the part of the income, in which he or she has power to acquire the beneficial interest; or (c) is payable to or accumulated for, or applicable for the benefit of, a child or children of that person who is or are under the age of 18 years. (2A) Where any property the subject of a trust has been converted into other property, this section shall apply in the same way as if the trust had originally been created in respect of that other property. (2B) In the application of subsection (2) in determining the amount of tax that is payable by a trustee of a trust estate in pursuance of this section, the reference in that subsection to the net income of the trust estate shall be read as a reference to that net income reduced by: (a) so much (if any) of that net income as is attributable to a period when the person who created the trust was not a resident and is also attributable to sources out of Australia; and (b) so much (if any) of that net income as is not covered by paragraph (a) and represents an amount included in the assessable income of any taxpayer under section 102AAZD. (3) Where this section is applied to the assessment of the income of a trust estate or part thereof derived in the year of income, no beneficiary shall be assessed in his or her individual capacity in respect of his or her individual interest in the income or part to which this section has been so applied, and the trustee shall not be assessed in respect of that income or part otherwise than under this section.

Amendment history: Amended by No 58 of 1941, effective s 27: 13 Oct 1939 (s 27(2)) Remainder: 31 Dec 1941 | Amended by No 11 of 1947, effective 3 June 1947 (s 2) | Amended by No 12 of 1979, item 19, effective 13 Mar 1979 (s 2) | Amended by No 108 of 1981, item 27, effective s 4–25: 24 June 1981 (s 2) | Amended by No 95 of 1988, effective s 12–43, 44(b), 45–52, 54–58 and Sch: 24 Nov 1988 (s 2(1)) s 44(a) and 54(11): 16 Mar 1989 (s 2(2)) | Amended by No 153 of 1988, effective s 9–42 and 44: 26 Dec 1988 (s 2(1)) s 43: 1 Jan 1989 (s 2(2)) | Amended by No 135 of 1990, item 39, effective s 7–33, 38(1), (2), 39(1) and Sch (Pt 1): 28 Dec 1990 (s 2(1)) s 38(3), 39(2) and Sch (Part 3): 1 July 1993 (s 2(3)) s. 38(4), 39(3) and Sch (Part 4): 8 Jan 1991 (s 2(4)) | Amended by No 5 of 1991, item 17 | item 18, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 41 of 2011, Sch 5 item 266 | Sch 5 item 267 | Sch 5 item 268 | Sch 5 item 269 | Sch 5 item 270 | Sch 5 item 272, effective Sch 5 (items 15–17): 28 June 2011 (s 2(1) item 11) Sch 5 (items 57–73, 79, 176–367, 376–382, 412, 413): 27 June 2011 (s 2(1) items 17, 23)

s 102AAA — Object of Division

The object of this Division is to set out rules relating to the following: (a) the payment of interest on distributions from certain non ‑ resident trust estates (Subdivision B); (b) the winding ‑ up of certain non ‑ resident trust estates in existence on 12 April 1989 (Subdivision C); (c) an accruals system of taxation of certain non ‑ resident trust estates (Subdivision D).

Amendment history: Inserted by No 5 of 1991, item 18, effective s 4–61: 8 Jan 1991 (s 2)

s 102AAB — Interpretation

In this Division, unless the contrary intention appears: 1 July 1990 net worth , in relation to a trust estate, means the market value, as at the beginning of 1 July 1990, of the assets of the trust estate, reduced by the liabilities of the trust estate as at the beginning of that day. accounts has the same meaning as in Part X. actual transfer , in relation to property or services, means a transfer of the property or services other than a transfer that is taken to have been made because of subsection 102AAK(1), (2), (5), (6), (8), (10) or (11). arm’s length amount , in relation to an actual transfer of property or services to a trust estate, means the amount that the trustee could reasonably be expected to have been required to pay to obtain the property or the services concerned from the transferor under a transaction where the parties to the transaction are dealing with each other at arm’s length in relation to the transaction. associate has the same meaning as in Part X. attributable income , in relation to a trust estate, has the meaning given by section 102AAU. attributable taxpayer has the meaning given by section 102AAT. attribution account payment has the same meaning as in Part X. attribution debit has the same meaning as in Part X. Australian entity has the same meaning as in Part X. Australian trust has the same meaning as in Part X. base interest rate for a day has the same meaning as in section 8AAD of the Taxation Administration Act 1953 . CFC has the same meaning as in Part X. controlled foreign trust has the same meaning as in Part X. de facto relationship means: (a) a relationship between 2 persons (whether of the same sex or different sexes) that is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; or (b) a relationship between 2 persons (whether of the same sex or different sexes) who, although not legally married to each other, live with each other on a genuine domestic basis in a relationship as a couple. depreciation provision means: (a) any provision of Division 40 of the Income Tax Assessment Act 1997 (other than Subdivision 40 ‑ E); or (b) any provision of Division 43 of that Act. designated concession income has the same meaning as in Part X. discretionary trust estate means a trust estate where: (a) both of the following conditions are satisfied: (i) a person (who may include the trustee) is empowered (either unconditionally or on the fulfilment of a condition) to exercise any power of appointment or other discretion; (ii) the exercise of the power or discretion, or the failure to exercise the power or discretion, has the effect of determining, to any extent, either or both of the following: (A) the identities of those who may benefit under the trust; (B) how beneficiaries are to benefit, as between themselves, under the trust; or (b) one or more of the beneficiaries under the trust have a contingent or defeasible interest in some or all of the corpus or income of the trust estate; or (c) the trustee of another trust estate, being a trust estate where both of the conditions in paragraph (a) are satisfied, benefits, or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the first ‑ mentioned trust estate. eligible designated concession income has the same meaning as in Part X. entity means any of the following: (a) a company; (b) a partnership; (c) a person in the capacity of trustee; (d) any other person. exempt income , in relation to a trust estate, means the exempt income of the trust estate calculated as if the trustee were a taxpayer who was a resident. IP time means 7.30 p.m., by standard time in the Australian Capital Territory, on 12 April 1989. listed country has the same meaning as in Part X. listed country trust estate has the meaning given by section 102AAE. net income , in relation to a trust estate, in relation to a year of income, means: (b) if the trust estate is a public trading trust in relation to the year of income—the net income (within the meaning of Division 6C) of the public trading trust of the year of income; or (c) in any other case—the net income (within the meaning of Division 6) of the trust estate. non ‑ attributable year of income , in relation to a trust estate, means a non ‑ resident year of income of the trust estate where no amount calculated by reference to the attributable income of the trust estate of that year of income is included in the assessable income of any taxpayer under subsection 102AAZD(1). non ‑ discretionary trust estate means a trust estate other than a discretionary trust estate. non ‑ resident family trust has the meaning given by section 102AAH. non ‑ resident trust estate (except in section 102AAA), in relation to a year of income, means a trust estate that is not a resident trust estate in relation to the year of income. non ‑ resident year of income , in relation to a trust estate, means a year of income in relation to which the trust estate is a non ‑ resident trust estate. profits includes gains, whether of an income or capital nature. property includes money. public trading trust , in relation to a year of income, means a unit trust that is a public trading trust in relation to the year of income for the purposes of Division 6C. public unit trust has the meaning given by section 102AAF. resident trust estate , in relation to a year of income, means: (a) a resident trust estate in relation to the year of income within the meaning of Division 6; or (b) a unit trust that is a public trading trust, in relation to the year of income; or (c) a complying superannuation fund, a non ‑ complying superannuation fund, a complying approved deposit fund, a non ‑ complying approved deposit fund or a pooled superannuation trust in relation to the year of income. scheme means: (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; and (b) any scheme, plan, proposal, action, course of action or course of conduct, whether there are 2 or more parties or only one party involved. services includes any benefit, right (including a right in relation to, and an interest in, real or personal property), privilege or facility and, without limiting the generality of the foregoing, includes a benefit, right, privilege, service or facility that is, or is to be, provided under: (a) an arrangement for or in relation to: (i) the performance of work (including work of a professional nature), whether with or without the provision of property; or (ii) the provision of, or of the use of facilities for, entertainment, recreation or instruction; or (iii) the conferring of benefits, rights or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or (b) a contract of insurance; or (c) an arrangement for or in relation to the lending of money. subject to tax has the same meaning as in Part X. tax accounting period has the same meaning as in Part X. tax law , in relation to a listed country or an unlisted country, has the same meaning as in Part X. tax offset has the same meaning as in the Income Tax Assessment Act 1997 . transfer : (a) in relation to property—includes dispose of (whether by assignment, declaration of trust or otherwise) or provide; and (b) in relation to services—includes allow, confer, give, grant, perform or provide. trust estate , in relation to a transfer of property or services, means the trust estate or, as the case requires, the trustee of the trust estate. underlying transfer , in relation to a transfer of property or services to a trust estate, means: (a) if that transfer was an actual transfer—the actual transfer; or (b) if that transfer was taken to have been made because of subsection 102AAK(1)—the actual transfer referred to in that subsection; or (c) if that transfer was taken to have been made because of subsection 102AAK(2)—the actual transfer referred to in paragraph 102AAK(2)(d); or (d) if that transfer was taken to have been made because of subsection 102AAK(5)—the actual transfer referred to in paragraph 102AAK(5)(b); or (e) if that transfer was taken to have been made because of the application of subsection 102AAK(6) or (8) to an actual transfer—the actual transfer; or (f) if that transfer was taken to have been made because of the application of subsection 102AAK(6) or (8) to a transfer that was taken to have been made because of subsection 102AAK(1)—the actual transfer referred to in subsection 102AAK(1); or (g) if that transfer was taken to have been made because of the application of subsection 102AAK(6) or (8) to a transfer that was taken to have been made because of subsection 102AAK(5)—the actual transfer referred to in paragraph 102AAK(5)(b); or (h) if that transfer was taken to have been made because of subsection 102AAK(10)—the actual transfer referred to in paragraph 102AAK(10)(b); or (j) if that transfer was taken to have been made because of one or more applications of subsection 102AAK(11) to an actual transfer—the actual transfer; or (k) if that transfer was taken to have been made because of one or more applications of subsection 102AAK(11) to a transfer (in this paragraph called the deemed transfer ) that was taken to have been made because of subsection 102AAK(1), (2), (5), (6), (8) or (10)—the actual transfer that, under a preceding paragraph of this definition, is the underlying transfer in relation to the deemed transfer. underlying transferor , in relation to a transfer of property or services to a trust estate, means the entity who made the underlying transfer concerned. unlisted country has the same meaning as in Part X. weighted statutory interest rate , in relation to a year of income, means: (a) if there is only one base interest rate in relation to the year of income—that rate; or (b) if there are 2 or more base interest rates in relation to the year of income—the weighted average of the base rates for the year of income.

Amendment history: Amended by No 135 of 1990, item 39, effective s 7–33, 38(1), (2), 39(1) and Sch (Pt 1): 28 Dec 1990 (s 2(1)) s 38(3), 39(2) and Sch (Part 3): 1 July 1993 (s 2(3)) s. 38(4), 39(3) and Sch (Part 4): 8 Jan 1991 (s 2(4)) | Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 181 of 1994, Sch 5 item 26 | Sch 5 item 28, effective Sch 1 (items 1–21, 86–91), Sch 2 (items 5–23, 23 (2nd occurring)), Sch 3 (items 6–100), Sch 4 (items 9–23) and Sch 5 (items 25–30, 46(10)): 19 Dec 1994 (s 2(1)) Sch 1 (items 22–85): 13 Oct 1994 (s 2(2)) | Amended by No 155 of 1997, Sch 1 item 7 | Sch 1 item 8 | Sch 1 item 9 | Sch 1 item 10 | Sch 1 item 11 | Sch 1 item 58 | Sch 1 item 114, effective 24 Oct 1997 (s 2) | Amended by No 11 of 1999, item 16, effective Sch 1 (items 12–276, 398–404): 1 July 1999 (s 2(3), (4)) Sch 2: 9 Apr 1999 (s 2(2)) Sch 3 (items 1, 2): 31 Mar 1999 (s 2(1)) | Amended by No 77 of 2001, Sch 2 item 59, effective Sch 2 (items 20–148, 488(1)): 30 June 2001 (s 2(1)) | Amended by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6) | Amended by No 58 of 2006, Sch 7 item 42, effective s 4 and Sch 7 (items 35–50, 241–256): 22 June 2006 (s 2(1) items 1, 6, 24) Sch 7 (items 173, 175): 30 June 2000 (s 2(1) items 9, 11) Sch 7 (item 174): 24 Oct 2002 (s 2(1) item 10) Sch 7 (items 176, 178): 30 June 2004 (s 2(1) items 12, 14) Sch 7 (item 177): 24 Dec 1992 (s 2(1) item 13) | Amended by No 101 of 2006, Sch 1 item 102 | Sch 1 item 103 | Sch 2 item 273 | Sch 2 item 274 | Sch 2 item 275, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3) | Amended by No 4 of 2007, Sch 2 item 1 | Sch 2 item 2, effective Sch 2 (items 1–10): 19 Feb 2007 (s 2(1) item 4) | Amended by No 15 of 2007, Sch 1 item 84, effective Sch 1 (items 1–8, 22–149, 406(1)–(3)) and Sch 3 (items 6, 7): 15 Mar 2007 (s 2(1) items 2, 6) | Amended by No 143 of 2007, Sch 1 item 38, effective Sch 1 (items 2, 3, 18–127, 222, 223, 224(1), (2), 225, 226), Sch 4 (items 1–46, 51, 52), Sch 7 (items 9–17, 104(2)) and Sch 8: 24 Sept 2007 (s 2(1) items 2, 4, 11, 12) | Amended by No 144 of 2008, Sch 14 item 15 | Sch 14 item 16, effective Sch 14 (items 7–58): 10 Dec 2008 (s 2(1) item 36) | Amended by No 46 of 2011, Sch 2 item 688, effective Sch 2 (items 688–692) and Sch 3 (items 10, 11): 27 Dec 2011 (s 2(1) items 5, 12) | Amended by No 53 of 2016, Sch 5 item 11 | Sch 5 item 12 | Sch 5 item 13, effective Sch 3 (item 1), Sch 5 (items 1, 3, 6–28, 75), Sch 6 (items 1–20) and Sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4)

s 102AAC — Each listed country and unlisted country to be treated as a separate foreign country

For the purposes of the application of section 6AB to this Division, each listed country and each unlisted country is to be treated as a separate foreign country.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 155 of 1997, Sch 1 item 59 | Sch 1 item 104 | Sch 1 item 106 | Sch 1 item 112, effective 24 Oct 1997 (s 2) | Repealed and substituted by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6)

s 102AAD — Subject to tax —application of subsection 324(2)

Subsection 324(2) applies in relation to this Division in a corresponding way to the way in which it applies in relation to Part X.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2)

s 102AAE — Listed country trust estates

(1) For the purposes of this Division, a trust estate is taken to be a listed country trust estate in relation to a year of income if, and only if, either of the following paragraphs applies to each item of income or profit derived by the trust estate in the year of income: (a) the income or profit is either: (i) 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 (ii) designated concession income in relation to any listed country; (b) both of the following conditions are satisfied: (i) a part of the income or profit is either: (A) 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 (B) designated concession income in relation to any listed country; (ii) the remaining part, or each of the remaining parts, of the income or profit: (A) is subject to tax in another listed country or in different listed countries, as the case may be, in a tax accounting period ending before the end of the year of income or commencing during the year of income; or (B) is designated concession income in relation to any listed country. (2) For the purposes of the application of subparagraph (1)(b)(ii) to a trust estate, if a particular part of an item of income or profit (which part is in this subsection called the item part ) derived by the trust estate is included, or would apart from Subdivision 50 ‑ A or section 51 ‑ 5, 51 ‑ 10 or 51 ‑ 30 of the Income Tax Assessment Act 1997 be included, in the assessable income of the trust estate of a year of income (in this subsection called the trust’s year of income ) and one of the following paragraphs applies: (a) both of the following conditions are satisfied: (i) the trustee of the trust estate is liable to be assessed and pay tax under section 98, 99 or 99A in respect of a part of, or a share in, the net income of the trust estate of the trust’s year of income; (ii) the whole or a part of the part or share of the net income is attributable to the item part; (b) all of the following conditions are satisfied: (i) an amount is included in the assessable income of another taxpayer of the trust’s year of income or the next following year of income (which taxpayer is in this subsection called the actual taxpayer ) under subsection 92(1) or section 97, 98A or 100; (ii) the actual taxpayer is: (A) a company or a natural person (other than a company or a natural person in the capacity of a trustee); or (B) the trustee of a complying superannuation fund, a non ‑ complying superannuation fund, a complying approved deposit fund, a non ‑ complying approved deposit fund or a pooled superannuation trust in relation to the year of income concerned; or (D) the trustee of a public trading trust in relation to the year of income concerned; or (E) the trustee of a trust estate who is liable to be assessed and pay tax under section 98, 99 or 99A in respect of a part of, or a share in, the net income of a trust estate; (iii) if sub ‑ subparagraph (ii)(A), (B), (C) or (D) applies—the whole or a part of the amount so included in the actual taxpayer’s assessable income is attributable (either directly or indirectly through one or more interposed partnerships or trusts) to the item part; (iv) if sub ‑ subparagraph (ii)(E) applies—the whole or a part of the part or share of the net income is attributable (either directly or indirectly through one or more interposed partnerships or trusts) to the item part; (c) both of the following conditions are satisfied: (i) trustee beneficiary non ‑ disclosure tax is payable under Division 6D on the whole or part (the net income amount ) of a share of the net income of the trust estate of the trust’s year of income; (ii) the whole or part of the net income amount is attributable to the item part; the item part is to be treated as if it were subject to tax in a listed country in a tax accounting period ending before the end of the trust’s year of income. (3) For the purposes of this section, where a part of a particular item of income or profits derived by an entity would, if it were a separate item of income or profits, be taken to be subject to tax in a listed country in a particular tax accounting period, that part is taken to be subject to tax in that listed country in that tax accounting period.

Amendment history: Inserted by No 5 of 1991, item 18 | item 57, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 121 of 1997, Sch 3 item 40, effective s 4: 8 July 1997 (s 2(1)) Sch 2 (items 18–37), Sch 3 (items 31–61), Sch 4 (items 63–138), Sch 5 (items 43–93), Sch 6 (items 68–132), Sch 7 (items 5–7), Sch 8 (items 32–51), Sch 9 (items 16–40), Sch 10 (items 12–15), Sch 11 (items 37–57) and Sch 12 (items 15–23): 1 July 1997 (s 2(3), (5)) | Amended by No 155 of 1997, Sch 1 item 8 | Sch 1 item 60 | Sch 1 item 61 | Sch 1 item 62 | Sch 1 item 104, effective 24 Oct 1997 (s 2) | Amended by No 70 of 1999, Sch 2 item 6 | Sch 2 item 7, effective Sch 1 and Sch 2 (items 1–12): 8 July 1999 (s 2) | Amended by No 57 of 2001, Sch 2 item 2, effective Sch 2 (items 1, 2, 4): 28 June 2001 (s 2) | Amended by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6) | Amended by No 101 of 2006, Sch 2 item 276, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3) | Amended by No 15 of 2007, effective Sch 1 (items 1–8, 22–149, 406(1)–(3)) and Sch 3 (items 6, 7): 15 Mar 2007 (s 2(1) items 2, 6) | Amended by No 143 of 2007, effective Sch 1 (items 2, 3, 18–127, 222, 223, 224(1), (2), 225, 226), Sch 4 (items 1–46, 51, 52), Sch 7 (items 9–17, 104(2)) and Sch 8: 24 Sept 2007 (s 2(1) items 2, 4, 11, 12) | Amended by No 53 of 2016, effective Sch 3 (item 1), Sch 5 (items 1, 3, 6–28, 75), Sch 6 (items 1–20) and Sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4)

s 102AAF — Public unit trusts

(1) Subject to this section, for the purposes of this Division, a unit trust is a public unit trust at all times during a year of income if either of the following conditions are satisfied: (a) at any time during the year of income: (i) any of the units in the unit trust were listed for quotation in the official list of a stock exchange in Australia or elsewhere; or (ii) any of the units in the unit trust were offered to the public; (b) at all times during the year of income, the units in the unit trust were held by not fewer than 50 persons. (2) In determining whether a unit trust is a public unit trust at all times during a year of income for the purposes of this Division, subsections 102P(3) to (9) (inclusive) and (11) apply as if: (a) a reference in those subsections to Division 6C were a reference to this Division; and (b) a reference in those subsections to subsection 102P(1) were a reference to subsection (1) of this section; and (c) a reference in those subsections to a public unit trust in relation to a year of income were a reference to a public unit trust at all times during a year of income. (3) In determining whether a unit trust (in this subsection called the first unit trust ) is a public unit trust at all times during a year of income for the purposes of this Division, the following provisions have effect: (a) the following entities are taken to be one person: (i) an entity, whether or not it holds units in the first unit trust; and (ii) the entity or entities who are the associate or associates of the entity; (b) where any units in the first unit trust are held by the trustee of another trust that, apart from this paragraph, is a public unit trust at all times during the year of income—a person who has a beneficial interest in property of that other trust that consists of those units is taken to hold those units; (c) where any units in the first unit trust are held by the trustee of another trust that: (i) apart from paragraph (b); or (ii) by virtue of the application of paragraph (b); is a public unit trust at all times during the year of income—a person who has a beneficial interest in the property of that other trust that consists of those units (whether or not that beneficial interest is taken to be held by virtue of the application of this paragraph) is taken to hold those units.

Amendment history: Inserted by No 5 of 1991, item 18, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 53 of 2016, Sch 6 item 10, effective Sch 3 (item 1), Sch 5 (items 1, 3, 6–28, 75), Sch 6 (items 1–20) and Sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4)

s 102AAG — When entity is in a position to control a trust estate

(1) For the purposes of this Division, an entity is taken to be in a position to control a trust estate if, and only if: (a) a group in relation to the entity had the power by means of the exercise by the group of any power of appointment or revocation or otherwise, to obtain, with or without the consent of any other entity, the beneficial enjoyment of the corpus or income of the trust estate; or (b) a group in relation to the entity was able in any manner whatsoever, whether directly or indirectly, to control the application of the corpus or income of the trust estate; or (c) a group in relation to the entity was capable under a scheme of gaining the enjoyment or the control referred to in paragraph (a) or (b); or (d) a trustee of the trust estate was accustomed or under an obligation (whether formally or informally) or might reasonably be expected to act in accordance with the directions, instructions or wishes of a group in relation to the entity; or (e) a group in relation to the entity was able to remove or appoint the trustee, or any of the trustees, of the trust estate. (2) In subsection (1), a reference to a group in relation to an entity is a reference to: (a) the entity acting alone; or (b) an associate of the entity acting alone; or (c) the entity and one or more associates of the entity acting together; or (d) 2 or more associates of the entity acting together.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2)

s 102AAH — Non ‑ resident family trusts

(1) Subject to subsections (4) and (5), for the purposes of this Division, a trust estate is a non ‑ resident family trust in relation to a natural person at a particular time if, and only if, at that time: (a) the trust estate is either: (i) a post ‑ marital or post ‑ relationship family trust in relation to the natural person; or (ii) a family relief trust in relation to the natural person; and (b) the trust is constituted by: (i) a deed of trust or other instrument; or (ii) an order or declaration of a court. (2) For the purposes of this section, a trust estate is a post ‑ marital or post ‑ relationship family trust in relation to a natural person at a particular time if: (a) either of the following conditions is satisfied: (i) the trust was created pursuant to: (A) a decree or order of dissolution or annulment of marriage, being a dissolution or annulment that, because of the Family Law Act 1975 , has effect, or continues to have effect in Australia or is recognised as valid in Australia; or (B) a decree or order of judicial separation or a similar decree or order; (ii) the trust was created in consequence of the break ‑ down of a de facto relationship; and (b) at that time, the only persons who benefit, or are capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust (which persons are in subsections (4) and (5) called the primary potential beneficiaries ) are natural persons who: (i) are non ‑ residents at that time; and (ii) are covered by any of the following categories: (A) the spouse or former spouse of the natural person; (B) a child of the natural person; (C) a child of the former spouse of the natural person, being a child who was such a child at a time when the former spouse was the spouse of the natural person; (D) a child of the spouse of the natural person. (3) For the purposes of this section, a trust estate is a family relief trust in relation to a natural person at a particular time (in this subsection called the test time ) if: (a) the only persons who benefit, or are capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust (which persons are in subsections (4) and (5) called the primary potential beneficiaries ) are natural persons who: (i) are identified by name in the trust deed or instrument, or in the court order or declaration, constituting the trust; and (ii) are non ‑ residents at that time; and (iii) are covered by any of the following categories: (A) the spouse or former spouse of the natural person; (B) a parent of the natural person or of the natural person’s spouse or former spouse; (C) a child of the natural person or of the natural person’s spouse or former spouse; (D) a grandparent of the natural person; (E) a grandchild of the natural person; (F) a brother or sister of the natural person or of the natural person’s spouse or former spouse; (G) a child of a brother or sister mentioned in sub ‑ subparagraph (F); and (b) the trust was established, and is operated, for the relief of persons who are in necessitous circumstances; and (c) any of the following conditions is satisfied: (i) at the test time, the assets of the trust are not excessive having regard to the requirements, or likely requirements, of the primary potential beneficiaries; (ii) no transfers of property or services to the trust estate were made during the period (in this paragraph called the test period ) commencing at the IP time and ending at the test time; (iii) immediately after each transfer of property or services to the trust estate made during the test period, the assets of the trust were not excessive having regard to the requirements, or likely requirements, of the beneficiaries at the time of the transfer. Note: Section 960 ‑ 255 of the Income Tax Assessment Act 1997 may be relevant to determining relationships for the purposes of subparagraph (3)(a)(iii). (4) Subsection (1) does not prevent a trust estate from being a non ‑ resident family trust in relation to a natural person at a particular time if, in the event of the death of a particular primary potential beneficiary at that time, one or more natural persons (which persons are in subsection (5) called the secondary potential beneficiaries ) who: (a) are non ‑ residents at that time; and (b) are children of the primary potential beneficiary; would benefit, or be capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust. (5) Subsections (1) and (4) do not prevent a trust estate from being a non ‑ resident family trust in relation to a natural person at a particular time if, in the event of the death of all of the primary potential beneficiaries and all of the secondary potential beneficiaries at that time, there are one or more deductible gift recipients covered by an item in any of the tables in Subdivision 30 ‑ B of the Income Tax Assessment Act 1997 , or item 2 of the table in section 30 ‑ 15 of that Act, that would benefit, or be capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust. (6) For the purposes of this section, if, at a particular time, an entity holds an interest in, or right to benefit under, a trust that is dependent on the death of one or more natural persons, then, the entity is taken to be an entity who, in the event of the death of that natural person or those natural persons immediately after that time, would benefit under the trust. (7) A reference in this section to a natural person does not include a reference to a natural person in the capacity of a trustee.

Amendment history: Inserted by No 5 of 1991, item 18, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 18 of 1993, item 11, effective s 8–29, 54–57, 59 and Sch: 9 June 1993 (s 2(1)) s 30–53: 1 Jan 1993 (s 2(2)) | Amended by No 121 of 1997, Sch 9 item 39, effective s 4: 8 July 1997 (s 2(1)) Sch 2 (items 18–37), Sch 3 (items 31–61), Sch 4 (items 63–138), Sch 5 (items 43–93), Sch 6 (items 68–132), Sch 7 (items 5–7), Sch 8 (items 32–51), Sch 9 (items 16–40), Sch 10 (items 12–15), Sch 11 (items 37–57) and Sch 12 (items 15–23): 1 July 1997 (s 2(3), (5)) | Amended by No 144 of 2008, Sch 14 item 18 | Sch 14 item 20, effective Sch 14 (items 7–58): 10 Dec 2008 (s 2(1) item 36) | Amended by No 169 of 2012, effective Sch 2 (items 1–3, 26, 27): 3 Dec 2012 (s 2(1) item 3)

s 102AAJ — Transfer of property or services

(1) A reference in this Division to the transfer of property or services to a trust estate includes a reference to the transfer of such property or services by way of the creation of the trust estate. (2) For the purposes of this Division, where an entity acquires property that did not previously exist, the property is taken to have existed immediately before the acquisition and to have been transferred by the entity who created the property. (3) For the purposes of this Division, property or services are taken to have been transferred to an entity if the property or services have been applied for the benefit of, or in accordance with the directions of, the entity. (4) Without limiting the generality of subsection (3), a reference in that subsection to the application of property or services for the benefit of an entity includes a reference to the application of property or services in the discharge, in whole or in part, of a debt due by the entity. (5) Unless the contrary intention appears, a reference in this Division to a transfer of property or services includes a reference to a transfer made before the commencement of this Division. (6) A reference in this Division to a transfer of property or services made before the IP time includes a reference to a transfer made at the IP time.

Amendment history: Inserted by No 5 of 1991, item 44, effective s 4–61: 8 Jan 1991 (s 2)

s 102AAK — Deemed transfers of property or services to trust estate

(1) For the purposes of this Division, where an entity (in this subsection called the prime entity ) causes another entity to actually transfer property or services to a trust estate, the prime entity is taken to have transferred the property or services (instead of the other entity). (2) For the purposes of this Division, where: (a) the trustee of a trust estate issues units in the trust to an entity (in this subsection called the first entity ) in the first entity’s capacity as a manager, underwriter or dealer in relation to the marketing or placement of the units; and (b) in the course of the marketing or placement of the units, the units are disposed of by the first entity to another entity (in this subsection called the second entity ); and (c) at a particular time (in this subsection called the second entity’s transfer time ), the second entity transfers property or services to the first entity as consideration for the acquisition of the units; and (d) the first entity has actually transferred, or actually transfers, property or services (in this subsection called the original property or services ) to the trust estate for the sole purpose of acquiring the units; the second entity is taken to have transferred the original property or services (instead of the first entity) at the second entity’s transfer time. (3) A reference in subsection (2) to a unit in a trust estate is a reference to an interest (however described) in any of the income or property of the trust estate. (4) Subsections (1) and (2) do not limit the operation of subsection (5). (5) Where, under a scheme: (a) an entity (in this subsection called the scheme entity ) actually transfers property or services to another entity; and (b) property or services are actually transferred to a trust estate at a particular time otherwise than by the scheme entity; the Commissioner may, for the purposes of this Division, treat the property or services mentioned in paragraph (b) as having been transferred by the scheme entity to the trust estate (instead of by any other entity) at that time to such extent as the Commissioner considers reasonable. (6) For the purposes of this Division, if (apart from subsections (8), (10) and (11)) an entity, being a partnership, transfers property or services to a trust estate at a particular time: (a) each partner in the partnership is taken to have transferred a part of the property or services to the trust estate at that time; and (b) the market value of the part transferred by a particular partner is calculated using the formula: where: Market value means the market value, immediately before the transfer, of the property or services transferred by the partnership. Partner’s interest means: (i) the partner’s percentage interest in the profits of the partnership as at that time; or (ii) the partner’s percentage interest in the property of the partnership as at that time; or, if they are different, whichever is the higher. (7) Nothing in paragraph (6)(a) affects the application of this Division to the transfer made by the partnership concerned. (8) For the purposes of this Division, if: (a) apart from this subsection, subsections (6), (10) and (11), an entity being the trustee of a trust estate (in this subsection called the transferor trust estate ) transfers property or services (in this subsection called the transferred property or services ) to another trust estate (in this subsection called the transferee trust estate ) at a particular time (in this subsection called the transfer time ); and (b) the transferor trust estate was an Australian trust, or a controlled foreign trust, at the transfer time; and (c) the transferor trust estate was a discretionary trust estate at the transfer time; and (d) apart from this subsection, subsections (6), (10) and (11), one or more other entities transferred property or services to the transferor trust estate at or before the transfer time; each of those other entities is taken to have transferred the transferred property or services to the transferee trust estate at the transfer time. (9) Nothing in subsection (8) affects the application of this Division to the transfer mentioned in paragraph (8)(a). (10) For the purposes of this Division, where: (a) any of the following subparagraphs applies: (i) any of the following events occurs in relation to a company (which company is in this subsection called the transferor ): (A) the company passes a resolution for its winding ‑ up; (B) an order is made for the winding ‑ up of the company; (C) any similar event; (ii) a partnership (in this subsection also called the transferor ) ceases to exist for the purposes of this Act; (iii) either of the following sub ‑ subparagraphs applies in relation to the trustee of a trust estate (in this subsection also called the transferor ): (A) the trust estate commences to be wound ‑ up; (B) the trust estate ceases to exist for the purposes of this Act; and (b) an actual transfer of property or services is made to a trust estate (in this subsection called the transferee ) as a consequence of the transferor being wound ‑ up or ceasing to exist; the transferor is taken to have transferred to the transferee the property or services concerned. (11) For the purposes of this Division, where: (a) the following subparagraphs apply to an entity (in this subsection called the defunct entity ): (i) the defunct entity is a company, a partnership or the trustee of a trust estate; (ii) the defunct entity transferred property or services to a trust estate (including a transfer that was taken to have been made because of another application or other applications of this subsection) at a particular time; (iii) if the defunct entity is a company—any of the following events occurs: (A) the company passes a resolution for its winding ‑ up; (B) an order is made for the winding ‑ up of the company; (C) any similar event; (iv) if the defunct entity is a partnership—the partnership ceases to exist for the purposes of this Act; (v) if the defunct entity is a trustee of a trust estate—either of the following sub ‑ subparagraphs applies: (A) the trust estate commences to be wound ‑ up; (B) the trust estate ceases to exist for the purposes of this Act; and (b) the Commissioner is satisfied that another entity (in this subsection called the successor entity ) has benefited or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting (either directly or indirectly through one or more interposed companies, partnerships or trusts) by, or as a result of: (i) a transfer of property or services made by the defunct entity; or (ii) a transfer of property or services made as a consequence of the defunct entity being wound ‑ up or ceasing to exist; and (c) the Commissioner is of the opinion that it is appropriate to apply this subsection to the successor entity; the assessable income of the successor entity of the year of income in which the event, or the earliest event, mentioned in subparagraph (a)(iii), (iv) or (v) occurred and of each subsequent year of income is to be determined as if the successor entity had transferred to the trust estate mentioned in subparagraph (a)(ii), at the time mentioned in that subparagraph: (d) the whole of the property or services mentioned in that subparagraph; or (e) if the Commissioner thinks it appropriate—a part of the property or services referred to in that subparagraph.

Amendment history: Inserted by No 5 of 1991, item 18 | item 78 | item 100, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 101 of 2006, Sch 2 item 277, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3)

s 102AAL — Division not to apply to transfers by trustees of deceased estates

A reference in this Division to a transfer of property or services to a trust estate does not include a reference to a transfer made by the trustee of the estate of a deceased person under: (a) the terms of the deceased person’s will or codicil; or (b) an order of a court that varied or modified the provisions of the deceased person’s will or codicil; unless: (c) the transfer was made in or as the result of the exercise (by the trustee or any other person) of a power of appointment or any other discretion; or (d) under subsection 102AAK(1), the property or services are taken to have been transferred by an entity other than the trustee, instead of by the trustee; or (e) under subsection 102AAK(5), the Commissioner treats the property or services as having been (to any extent) transferred by an entity other than the trustee, instead of by the trustee.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2)

s 102AAM — Payment of interest by taxpayer on distributions from certain non ‑ resident trust estates

(1) For the purposes of this section, if: (a) an amount is included in the assessable income of a taxpayer of a year of income (which year of income is in this section called the current year of income ), being the year of income commencing on 1 July 1990 or a subsequent year of income, under section 99B in relation to a trust estate; and (b) the whole or a part of the amount so included in the taxpayer’s assessable income (which whole or part is in this section called the distributed amount ) is attributable to: (i) if the trust estate was a listed country trust estate in relation to a particular non ‑ resident year of income of the trust estate (in this section called the non ‑ resident trust’s year of income )—so much of the income and profits of the trust estate of the non ‑ resident trust’s year of income as represents eligible designated concession income in relation to any listed country in relation to the non ‑ resident trust’s year of income; or (ii) if the trust estate was not a listed country trust estate in relation to a particular non ‑ resident year of income of the trust estate (in this section also called the non ‑ resident trust’s year of income )—so much of the income and profits of the trust estate of the non ‑ resident trust’s year of income as has not been subject to tax in any listed country in a tax accounting period: (A) ending before the end of the non ‑ resident trust’s year of income; or (B) commencing during the non ‑ resident trust’s year of income; then: (c) the distributed amount is the distributed amount of the non ‑ resident trust’s year of income; and (d) the taxpayer is the original taxpayer in relation to the distributed amount of the non ‑ resident trust’s year of income. (1A) For the purposes of subsection (1), unless the contrary is established by the taxpayer: (a) a distributed amount in relation to a listed country trust estate in relation to a non ‑ resident trust’s year of income is taken to be wholly attributable to income and profits of the trust estate of that year of income that represent eligible designated concession income in relation to a listed country; and (b) a distributed amount in relation to a trust estate that was not a listed country trust estate in relation to a non ‑ resident trust’s year of income is taken to be wholly attributable to income and profits of the trust estate of that year of income that have not been subject to tax in any listed country in a tax accounting period. (1B) This section does not apply to a distributed amount that is attributable to income or profits of the estate of a deceased person if the amount was paid to, or applied for the benefit of, the taxpayer within 3 years after the death of that person. (1C) This section does not apply to a distributed amount that was included in the assessable income of a taxpayer of a year of income under section 99B in relation to a trust estate if, at all times during the year of income, the trust: (a) was a public unit trust; and (b) was not a controlled foreign trust. (2) Subject to this section, if the original taxpayer in relation to the distributed amount of the non ‑ resident trust’s year of income is: (a) a company or a natural person (other than a company or a natural person in the capacity of a trustee); or (c) the trustee of a public trading trust in relation to the current year of income; or (d) the trustee of a complying superannuation fund, a non ‑ complying superannuation fund, a complying approved deposit fund, a non ‑ complying approved deposit fund or a pooled superannuation trust in relation to the current year of income; the taxpayer is liable to pay interest to the Commissioner in respect of the distributed amount of the non ‑ resident trust’s year of income, calculated under subsection (5), on the amount calculated using the formula: where: Distributed amount means the distributed amount of the non ‑ resident trust’s year of income. Applicable rate of tax has the meaning given by subsection (10). FITO (Foreign income tax offset) means so much of any tax offset under Division 770 of the Income Tax Assessment Act 1997 to which the taxpayer is entitled as is attributable to the distributed amount of the non ‑ resident trust’s year of income. (3) Subject to this section, if: (a) the original taxpayer in relation to the distributed amount of the non ‑ resident trust’s year of income is the trustee of a trust estate who is liable to be assessed and pay tax under section 98, 99 or 99A in respect of a part of, or a share in, the net income of the trust estate; and (b) the whole or a part (which whole or part is in this subsection called the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income ) of the part or share of the net income is attributable to the distributed amount of the non ‑ resident trust’s year of income; the taxpayer is liable to pay interest to the Commissioner in respect of the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income, calculated under subsection (5), on the amount calculated using the formula: where: Taxpayer’s portion of the distributed amount means the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income. Applicable rate of tax has the meaning given by subsection (10). FITO (Foreign income tax offset) means so much of any tax offset under Division 770 of the Income Tax Assessment Act 1997 to which the taxpayer is entitled as is attributable to the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income. (4) Subject to this section, if: (a) the original taxpayer in relation to the distributed amount of the non ‑ resident trust’s year of income is the trustee of a trust estate or a partnership; and (b) the following conditions are satisfied in relation to another taxpayer (in this subsection called the actual taxpayer ): (i) an amount is included in the assessable income of the actual taxpayer of a year of income under subsection 92(1) or section 97, 98A or 100; (ii) the actual taxpayer is: (A) a company or a natural person (other than a company or a natural person in the capacity of a trustee); or (B) the trustee of a complying superannuation fund, a non ‑ complying superannuation fund, a complying approved deposit fund, a non ‑ complying approved deposit fund or a pooled superannuation trust in relation to the year of income; or (D) the trustee of a public trading trust in relation to the year of income; or (E) the trustee of a trust estate who is liable to be assessed and pay tax under section 98, 99 or 99A in respect of a part of, or a share in, the net income of a trust estate; (iii) if sub ‑ subparagraph (ii)(A), (B), (C) or (D) applies—the whole or a part of the amount so included in the actual taxpayer’s assessable income (which whole or part is in this subsection called the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income ) is attributable (either directly or indirectly through one or more interposed partnerships or trusts) to the distributed amount of the non ‑ resident trust’s year of income; (iv) if sub ‑ subparagraph (ii)(E) applies—the whole or a part (which whole or part is in this subsection also called the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income ) of the part or share of the net income is attributable (either directly or indirectly through one or more interposed partnerships or trusts) to the distributed amount of the non ‑ resident trust’s year of income; the actual taxpayer is liable to pay interest to the Commissioner in respect of the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income, calculated under subsection (5), on the amount calculated using the formula: where: Taxpayer’s portion of the distributed amount means the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income. Applicable rate of tax has the meaning given by subsection (10). FITO (Foreign income tax offset) means so much of any tax offset under Division 770 of the Income Tax Assessment Act 1997 to which the taxpayer is entitled as is attributable to the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income. (4A) If: (a) paragraph 102UK(2)(b) or 102UM(2)(b) has the effect that the whole or a part of a share of the net income of a trust estate (the first trust estate ) is not included in the assessable income of the trustee of another trust estate (the second trust estate ); and (b) the whole or the part of the share (which whole or part is in this subsection called the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income ) is attributable (either directly or indirectly through one or more interposed partnerships or trusts) to the distributed amount of the non ‑ resident trust’s year of income; and (c) if paragraph 102UK(2)(b) or 102UM(2)(b) were ignored, the second trust estate would be an interposed trust mentioned in applying subparagraph (4)(b)(iii) or (iv) of this section; and (d) this subsection does not also apply to the trustee of a trust interposed between the first trust estate and the non ‑ resident trust; the trustee of the first trust estate is liable to pay interest to the Commissioner in respect of the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income, calculated under subsection (5), on the amount calculated using the formula: where: applicable rate of tax has the meaning given by subsection (10). FITO (Foreign income tax offset) means so much of any tax offset under Division 770 of the Income Tax Assessment Act 1997 to which the trustee of the first trust would be entitled, in respect of the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income, if the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s income were an amount in respect of which the trustee were liable to be assessed and to pay tax under section 99A. taxpayer’s portion of the distributed amount means the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income. (5) Interest payable by a taxpayer under this section is to be calculated: (a) in respect of the period commencing at whichever of the following times is the latest: (i) the beginning of the first year of income of the taxpayer that begins after the end of the non ‑ resident trust’s year of income; (ii) the beginning of the year of income of the taxpayer commencing on 1 July 1990; (iii) if the taxpayer is a natural person (other than a natural person in the capacity of a trustee) who first commenced to be a resident of Australia at a time (in this subparagraph called the first residence time ) on or after 1 July 1990—the beginning of the year of income of the taxpayer next following the year of income of the taxpayer in which the first residence time occurred; and ending at the end of the assessment year of income; and (b) at the base interest rate. (6) Where the assessable income of a taxpayer of a year of income includes one or more of the following amounts in relation to one or more non ‑ resident years of income of a particular trust estate (which amounts are in this subsection called the principal amounts ): (a) the distributed amount of the non ‑ resident trust’s year of income; (b) the taxpayer’s portion of the distributed amount of the non ‑ resident trust’s year of income; the aggregate of the interest payable by the taxpayer in respect of the principal amounts is not to exceed the difference between: (c) the aggregate of the principal amounts; and (d) so much of the tax payable in respect of the year of income as is attributable to the aggregate of the principal amounts (ignoring any tax offset under Part 3 ‑ 6 of the Income Tax Assessment Act 1997 ). (7) For the purposes of this section, the extent to which an amount (in this subsection called the section 99B amount ) included in the assessable income of a taxpayer of a year of income under section 99B in relation to a trust estate is attributable to an amount (in this subsection called the trust amount ) covered by subparagraph (1)(b)(i) or (ii) is to be determined in accordance with the following paragraphs: (a) in all cases—distributions of income and profits of the trust estate are to be taken to have been made in the following order: (i) first, from income and profits of the earliest non ‑ resident year of income; (ii) then, successively from income and profits of successive subsequent years of income; (b) if subparagraph (1)(b)(i) applies—the extent to which the amount (in this paragraph called the adjusted section 99B amount ), being so much of the section 99B amount as is attributable to the income and profits of the trust estate of the non ‑ resident trust’s year of income, represents eligible designated concession income in relation to any listed country in relation to the non ‑ resident trust’s year of income is calculated using the formula: where: Adjusted section 99B amount means the adjusted section 99B amount. Eligible designated concession income means the number of dollars in the amount, being so much of the income and profits of the trust estate of the non ‑ resident trust’s year of income as represents eligible designated concession income in relation to any listed country in relation to the non ‑ resident trust’s year of income. Total income means the number of dollars in the income and profits of the trust estate of the non ‑ resident trust’s year of income. (c) if subparagraph (1)(b)(ii) applies—the extent to which the amount (in this paragraph called the adjusted section 99B amount ), being so much of the section 99B amount as is attributable to the income and profits of the trust estate of the non ‑ resident trust’s year of income, represents income and profits that have not been subject to tax in a listed country in a tax accounting period mentioned in that subparagraph is calculated using the formula: where: Adjusted section 99B amount means the adjusted section 99B amount. Untaxed income means the number of dollars in the amount, being so much of the income and profits of the trust estate of the non ‑ resident trust’s year of income as is not subject to tax in any listed country in a tax accounting period mentioned in that subparagraph. Total income means the number of dollars in the income and profits of the trust estate of the non ‑ resident trust’s year of income. (8) For the purposes of subsection (7), an amount of income or profits of a trust estate is to be taken to be distributed if the amount is paid to, or applied for the benefit of (within the meaning of section 99B), a beneficiary of the trust estate. (9) Where, apart from this subsection, the amount of interest that would be payable under this section by a taxpayer in respect of the distributed amount of a non ‑ resident trust’s year of income, or in respect of the taxpayer’s portion of the distributed amount of a non ‑ resident trust’s year of income, is less than 50 cents, interest is not payable by the taxpayer under this section. (10) For the purposes of this section, the applicable rate of tax in relation to a taxpayer is: (a) if the taxpayer is a company (other than a company in the capacity of a trustee)—the corporate tax rate for the year of tax to which the assessment year of income relates; or (b) in any other case—the maximum rate specified in the table in Part I of Schedule 7 of the Income Tax Rates Act 1986 that applies for the assessment year of income. (10A) Paragraph (10)(b) has effect as if the maximum rate specified as mentioned in that paragraph was increased by 2 percentage points for assessment years of income that correspond to the temporary budget repair levy years (within the meaning of section 4 ‑ 11 of the Income Tax (Transitional Provisions) Act 1997 ). (11) For the purposes of the application of this section to a taxpayer, the assessment year of income is: (a) if subsection (2) or (3) applies—the current year of income; or (b) if subsection (4) applies—the year of income referred to in subparagraph (4)(b)(i). (12) For a taxpayer who is not a full self ‑ assessment taxpayer for the assessment year of income, the Commissioner must make an assessment of the interest payable by the taxpayer under this section. (13A) If: (a) a taxpayer is a full self ‑ assessment taxpayer for the assessment year of income; and (b) the taxpayer lodges a return for that year; then: (c) the Commissioner is taken to have made an assessment of the interest payable by the taxpayer under this section for the year, equal to the amount specified in the return as the interest so payable; and Note: If any interest is so payable, the return must specify the amount: see section 161AA. (d) the assessment is taken to have been made on the day on which the return is lodged; and (e) the return is taken to be a notice of that assessment given to the taxpayer by the Commissioner on that day.

Amendment history: Inserted by No 5 of 1991, item 4 | item 45, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 100 of 1991, Sch 2 item 34, effective s 15–28, 30–32, 33(b), (e), (f), 34–76 and 79–84): 27 June 1991 (s 2(1)) s 29 and 77: 24 Apr 1991 (s 2(3), (6)) s 33(a): 16 June 1990 (s 2(4)) s 33(c) and (d): 30 June 1989 (s 2(5)) s 78: 8 Jan 1991 (s 2(7)) | Amended by No 216 of 1991, Sch 4 item 23A, effective s 10, 12–39, 41, 43, 44, 67–81, 83–86, 89(1), (3)–(19), 91, 92, 102, 103 and Sch 1–4: 24 Dec 1991 (s 2(1)) s 11 and 89(2): 22 Jan 1991 (s 2(2)) s 40 and 42: 6 Jan 1992 (s 2(3)) s 45, 46, 48–51, 54–58, 60–66, 90(1), (3)–(14), 93–96 and 98–101: 21 Aug 1991 (s 2(4)) s 47, 52, 53, 59, 90(2) and 97: 3 pm (A.C.T) 20 Aug 1991 (s 2(5)) s 82(2): 25 Dec 1991 (s 2(6)) | Amended by No 101 of 1992, effective s 16–32, 34 and Sch 1–4: 30 June 1992 (s 2) | Amended by No 190 of 1992, item 12, effective 1 Jan 1993 (s 2) | Amended by No 181 of 1994, Sch 5 item 11 | Sch 5 item 22 | Sch 5 item 24 | Sch 5 item 8A | Sch 5 item 27, effective Sch 1 (items 1–21, 86–91), Sch 2 (items 5–23, 23 (2nd occurring)), Sch 3 (items 6–100), Sch 4 (items 9–23) and Sch 5 (items 25–30, 46(10)): 19 Dec 1994 (s 2(1)) Sch 1 (items 22–85): 13 Oct 1994 (s 2(2)) | Amended by No 155 of 1997, Sch 1 item 65 | Sch 1 item 66 | Sch 1 item 67 | Sch 1 item 68, effective 24 Oct 1997 (s 2) | Amended by No 41 of 1998, Sch 1 item 8 | Sch 1 item 9 | Sch 1 item 10 | Sch 1 item 11 | Sch 1 item 12 | Sch 1 item 19 | Sch 1 item 20 | Sch 1 item 21, effective s 4, Sch 1 (items 4–16, 18–26), Sch 2 (items 1–4), Sch 3 (items 1–3, 7(1)), Sch 4 (items 4, 5), Sch 5 (items 16, 18) and Sch 6 (items 1, 2, 4, 5, 7–13, 15–18, 27): 4 June 1998 (s 2(1)) Sch 1 (item 17): 9 Apr 1999 (s 2(2)) Sch 5 (items 17, 19): 12 Dec 1995 (s 2(5)) Sch 6 (item 3): 16 Dec 1985 (s 2(6)) Sch 6 (item 6): 1 Jan 1993 (s 2(7)) Sch 6 (item 14): never commenced (s 2(9)) Sch 6 (item 16): 1 July 1998 (s 2(10)) | Amended by No 11 of 1999, item 17 | item 18 | item 354, effective Sch 1 (items 12–276, 398–404): 1 July 1999 (s 2(3), (4)) Sch 2: 9 Apr 1999 (s 2(2)) Sch 3 (items 1, 2): 31 Mar 1999 (s 2(1)) | Amended by No 70 of 1999, Sch 2 item 8, effective Sch 1 and Sch 2 (items 1–12): 8 July 1999 (s 2) | Amended by No 179 of 1999, Sch 18 item 4 | Sch 18 item 5 | Sch 18 item 6 | Sch 18 item 7, effective Sch 2 (items 20–47), Sch 3 (items 3–6), Sch 5 (item 74), Sch 6 (items 1–13, 24(1)–(4)), Sch 10 (items 22–24), Sch 11 (item 44), Sch 16 (items 3–17, 37) and Sch 17 (items 1, 2): 22 Dec 1999 (s 2(1), (4), (7)(b)–(d)) Sch 5 (items 1–64), Sch 11 (items 14–43, 45–79) and Sch 12 (item 3): 1 July 2000 (s 2(9), (12)) | Amended by No 67 of 2003, Sch 9 item 340 | Sch 9 item 6, effective Sch 10 (item 13): 14 Oct 2003 (s 2(1) item 8) | Amended by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6) | Amended by No 23 of 2005, Sch 3 item 27, effective s 4 and Sch 3 (items 14–74, 111(3)–(5), 112–114): 21 Mar 2005 (s 2(1) items 1, 6) | Amended by No 58 of 2006, Sch 7 item 43 | Sch 7 item 3C, effective s 4 and Sch 7 (items 35–50, 241–256): 22 June 2006 (s 2(1) items 1, 6, 24) Sch 7 (items 173, 175): 30 June 2000 (s 2(1) items 9, 11) Sch 7 (item 174): 24 Oct 2002 (s 2(1) item 10) Sch 7 (items 176, 178): 30 June 2004 (s 2(1) items 12, 14) Sch 7 (item 177): 24 Dec 1992 (s 2(1) item 13) | Amended by No 101 of 2006, Sch 2 item 278 | Sch 2 item 279 | Sch 2 item 280 | Sch 2 item 281 | Sch 2 item 282 | Sch 2 item 283 | Sch 2 item 284, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3) | Amended by No 15 of 2007, Sch 1 item 86, effective Sch 1 (items 1–8, 22–149, 406(1)–(3)) and Sch 3 (items 6, 7): 15 Mar 2007 (s 2(1) items 2, 6) | Amended by No 143 of 2007, Sch 1 item 39 | Sch 1 item 40 | Sch 1 item 41 | Sch 1 item 42 | Sch 1 item 43 | Sch 1 item 44 | Sch 1 item 45 | Sch 1 item 46 | Sch 1 item 47 | Sch 1 item 48 | Sch 1 item 49 | Sch 1 item 50, effective Sch 1 (items 2, 3, 18–127, 222, 223, 224(1), (2), 225, 226), Sch 4 (items 1–46, 51, 52), Sch 7 (items 9–17, 104(2)) and Sch 8: 24 Sept 2007 (s 2(1) items 2, 4, 11, 12) | Amended by No 79 of 2010, Sch 1 item 17 | Sch 1 item 18 | Sch 1 item 31 | Sch 1 item 44, effective Sch 1 (items 1, 2, 17–26, 53, 57, 66), Sch 3 (item 1), Sch 4 (items 1, 9–37, 51) and Sch 5 (items 1, 3–5, 13): 1 July 2010 (s 2(1) items 2, 4) Sch 2 (items 1, 10–15): 1 July 2010 (s 2(1) item 3) | Amended by No 47 of 2014, Sch 1 item 1, effective 25 June 2014 (s 2(1) items 1, 2) | Amended by No 53 of 2016, Sch 5 item 15, effective Sch 3 (item 1), Sch 5 (items 1, 3, 6–28, 75), Sch 6 (items 1–20) and Sch 8 (item 1): 5 May 2016 (s 2(1) items 2, 4) | Amended by No 81 of 2016, Sch 10 item 67, effective Sch 10 (items 66–71, 93): 1 Jan 2017 (s 2(1) item 6)

s 102AAN — Collection etc. of interest

Sections 170, 172, 174, 254 and 255 of this Act, and Division 5 of the Income Tax Assessment Act 1997 (How to work out when to pay your income tax), apply to interest payable under section 102AAM in the same way as they apply to income tax.

Amendment history: Inserted by No 5 of 1991, item 78 | item 47, effective s 4–61: 8 Jan 1991 (s 2) | Repealed by No 101 of 2006, Sch 2 item 277 | Sch 2 item 278 | Sch 2 item 431, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3) | Inserted by No 79 of 2010, effective Sch 1 (items 1, 2, 17–26, 53, 57, 66), Sch 3 (item 1), Sch 4 (items 1, 9–37, 51) and Sch 5 (items 1, 3–5, 13): 1 July 2010 (s 2(1) items 2, 4) Sch 2 (items 1, 10–15): 1 July 2010 (s 2(1) item 3)

s 102AAS — Object of Subdivision

The object of this Subdivision is to set out rules relating to the following: (a) the determination of attributable taxpayer status (section 102AAT); (b) the calculation of the attributable income of a trust estate (sections 102AAU to 102AAZC (inclusive)); (c) the inclusion of amounts in assessable income (sections 102AAZD, 102AAZE and 102AAZF); (d) the keeping of associated records (section 102AAZG).

s 102AAT — Accruals system of taxation—attributable taxpayer

(1) Subject to this Division, for the purposes of this Division, an entity is an attributable taxpayer in relation to a year of income of the entity (which year of income is in this section called the entity’s current year of income ) and in relation to a particular trust estate if, and only if: (a) either of the following subparagraphs applies: (i) all of the following conditions are satisfied: (A) the trust estate was a discretionary trust estate at any time during the entity’s current year of income; (B) the trust estate was not a public unit trust at all times during the entity’s current year of income; (C) the entity has transferred property or services to the trust estate at a time (in this subparagraph called the transfer time ) before or during the entity’s current year of income; (D) if the underlying transfer was made in the course of carrying on a business—it is not the case that, at or about the time of the underlying transfer, identical or similar property or services were transferred by the underlying transferor in the ordinary course of business to ordinary clients or customers under arm’s length transactions and in similar circumstances and subject to identical or similar terms and conditions as those that applied in relation to the underlying transfer of the property or services concerned; (E) if the underlying transfer was made under an arm’s length transaction otherwise than in the course of carrying on a business—the entity was in a position, at any time after the transfer time and before the end of the entity’s current year of income, to control the trust estate; (F) if the transfer was made before the IP time and the trust estate was in existence, and was a discretionary trust estate, at the IP time—the entity was in a position, at any time after the IP time and before the end of the entity’s current year of income, to control the trust estate; (ii) all of the following conditions are satisfied: (A) the trust estate was a non ‑ discretionary trust estate, or a public unit trust, at all times during the entity’s current year of income when the trust estate was in existence; (B) the entity has transferred property or services to the trust estate after the IP time and before or during the entity’s current year of income; (C) the underlying transfer was made for no consideration or for a consideration less than the arm’s length amount in relation to the underlying transfer; (D) it is not the case that the sole purpose of the underlying transfer was the acquisition of units in the trust estate where the parties to the underlying transfer were at arm’s length with each other in relation to the underlying transfer and the trust estate was a public unit trust at all times during the entity’s current year of income when the trust estate was in existence; and (b) if the entity is a natural person (other than a natural person in the capacity of a trustee): (i) if: (A) the natural person first commenced to be a resident of Australia at a time (in this subparagraph called the first residence time ) after the IP time and before the end of the entity’s current year of income; and (B) the transfer, or each of the transfers, covered by paragraph (a) was made before the first residence time; the trust estate was not a non ‑ resident family trust in relation to the natural person at all times: (C) after the beginning of the first year of income of the natural person after the first residence time; and (D) before the end of the entity’s current year of income; when the trust estate was in existence; or (ii) in any other case—the trust estate was not a non ‑ resident family trust in relation to the natural person at all times after the beginning of the year of income of the taxpayer commencing on 1 July 1990 and before the end of the entity’s current year of income when the trust estate was in existence; and (c) it is not the case that: (i) the entity is a natural person (other than a natural person in the capacity of a trustee) who first commenced to be a resident of Australia at a time (in this paragraph called the first residence time ) after the IP time and before the end of the entity’s current year of income; and (ii) the transfer was made before the first residence time; and (iii) the entity was not in a position to control the trust estate at any time during the period: (A) commencing at the beginning of the first year of income of the entity after the first residence time; and (B) ending at the end of the entity’s current year of income. (2) For the purposes of this section, if: (a) an entity (in this subsection called the transferor ) being a partnership is an attributable taxpayer in relation to the entity’s current year of income and in relation to a particular trust estate (in this subsection called the transferee trust estate ) because of one or more transfers (being actual transfers or transfers taken to have been made because of subsection 102AAK(1), (2) or (5)) of property or services made by the transferor to the transferee trust estate; or (b) an entity (in this subsection also called the transferor ) being a trust estate is an attributable taxpayer in relation to the entity’s current year of income and in relation to another trust estate (in this subsection also called the transferee trust estate ) because of one or more transfers (being actual transfers or transfers taken to have been made because of subsection 102AAK(1), (2) or (5)) of property or services made by the transferor to the transferee trust estate; the question whether any other entity is an attributable taxpayer in relation to the same year of income and in relation to the transferee trust estate is to be determined as if: (c) if paragraph (a) applies—subsection 102AAK(6) did not apply in relation to any of the transfers mentioned in that paragraph; or (d) if paragraph (b) applies—subsection 102AAK(8) did not apply in relation to any of the transfers mentioned in that paragraph. (3) If: (a) apart from this subsection, an entity, being a natural person (other than a natural person in the capacity of a trustee), is not an attributable taxpayer in relation to the entity’s current year of income and in relation to a trust estate; and (b) apart from paragraph (1)(b), the entity would have been such an attributable taxpayer; and (c) apart from subparagraph 102AAH(2)(b)(i) or (3)(a)(ii), the trust estate was not a non ‑ resident family trust in relation to the natural person at some time after the entity’s current year of income when the natural person was alive and the trust estate was in existence; the following provisions have effect: (d) subsection (1) has effect as if paragraph (1)(b) had applied; (e) section 170 does not prevent the amendment of an assessment at any time for the purposes of giving effect to this subsection. (4) If: (a) apart from this subsection, an entity is not an attributable taxpayer in relation to the entity’s current year of income and in relation to a trust estate; and (b) apart from sub ‑ subparagraph (1)(a)(i)(E) or (F) or paragraph (1)(c), the entity would have been such an attributable taxpayer; and (c) the entity was in a position to control the trust estate at some time after the entity’s current year of income when the trust estate was in existence; the following provisions have effect: (d) subsection (1) has effect as if sub ‑ subparagraph (1)(a)(i)(E) or (F) or paragraph (1)(c), as the case may be, had applied; (e) section 170 does not prevent the amendment of an assessment at any time for the purposes of giving effect to this subsection.

s 102AAU — Attributable income of a trust estate

(1) Subject to this Subdivision, the attributable income of a non ‑ resident trust estate of a year of income is: (a) if the non ‑ resident trust estate is not a listed country trust estate in relation to the year of income—the net income of the non ‑ resident trust estate of the year of income; or (b) if the non ‑ resident trust estate is a listed country trust estate in relation to the year of income—the amount that would have been the net income of the non ‑ resident trust estate of the year of income if the exempt income of the trust estate included all income and profits of the trust estate, other than eligible designated concession income in relation to any listed country in relation to the year of income; reduced by: (c) so much (if any) of the amount covered by paragraph (a) or (b) 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, 99 or 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 (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 trust estate 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’s year of income; or (vii) if: (A) an attribution account payment is made to the trustee of the trust estate 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 the payment; the amount of the attribution debit; or (viii) an amount of income or 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 country in relation to the year of income; and (d) so much of any foreign tax or Australian tax paid by 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). (2) The attributable income of a resident trust estate of a year of income is 0. (3) For the purposes of sub ‑ subparagraph (1)(c)(ii)(A), a beneficiary is to be taken to be a resident of a listed country if, and only if, the beneficiary is treated as a resident of the listed country for the purposes of the tax law of the listed country. (4) If the tax law of a listed country adopts some criterion other than treatment as a resident as the criterion for applying a worldwide source tax base to a beneficiary, then, subsection (3) has effect, in relation to that tax law, as if that criterion were the same as treatment as a resident of the listed country for the purposes of that tax law. (5) For the purposes of this section, where, because of section 101, a beneficiary is presently entitled to a particular amount, the amount is taken to have been paid to the beneficiary. (6) For the purposes of this section, the extent to which an amount referred to in subparagraph (1)(c)(i) or (ii) (in this subsection called the taxed amount ) represents the amount covered by paragraph (1)(b) (in this subsection called the listed country trust amount ) is calculated using the formula: where: Listed country trust amount means the number of dollars in the listed country trust amount. Taxed amount means the taxed amount. Net income means the number of dollars in the net income of the non ‑ resident trust estate concerned of the year of income concerned.

Amendment history: Inserted by No 5 of 1991, item 18 | item 41, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 138 of 1994, item 13 | item 15, effective s 4, 5, 8–10, 14–16, 21–24, 27–33, 44–92, 99–116 and Sch: 28 Nov 1994 (s 2(1)) s 11–13, 17–20, 25, 26 and 34–43: 1 Jan 1993 (s 2(2)) s 93–98: 28 Nov 1994 (s 2(3)) | Amended by No 155 of 1997, Sch 1 item 12 | Sch 1 item 13 | Sch 1 item 14 | Sch 1 item 15 | Sch 1 item 69 | Sch 1 item 70 | Sch 1 item 75 | Sch 1 item 76, effective 24 Oct 1997 (s 2) | Amended by No 70 of 1999, effective Sch 1 and Sch 2 (items 1–12): 8 July 1999 (s 2) | Amended by No 93 of 1999, effective s 4, Sch 1 (items 1–35, 39–48), Sch 2, Sch 3 (items 26–33), Sch 4 (items 1–23, 25), Sch 5 and 7: 16 July 1999 (s 2(1)) Sch 4 (item 24): 16 Apr 1998 (s 2(2)) | Amended by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6) | Amended by No 23 of 2005, effective s 4 and Sch 3 (items 14–74, 111(3)–(5), 112–114): 21 Mar 2005 (s 2(1) items 1, 6) | Amended by No 143 of 2007, effective Sch 1 (items 2, 3, 18–127, 222, 223, 224(1), (2), 225, 226), Sch 4 (items 1–46, 51, 52), Sch 7 (items 9–17, 104(2)) and Sch 8: 24 Sept 2007 (s 2(1) items 2, 4, 11, 12) | Amended by No 114 of 2010, Sch 1 item 10, effective Sch 1 (items 1–39, 93–96): 14 July 2010 (s 2(1) items 2, 4) Sch 1 (items 88–92): 14 Sept 2006 (s 2(1) item 3) | Amended by No 62 of 2011, effective Sch 1 (items 4, 5, 14), Sch 2 (items 1–7, 28–44, 51) and Sch 4 (items 1–32, 34): 29 June 2011 (s 2(1) items 2, 6)

s 102AAV — Double tax agreements to be disregarded

In calculating the attributable income of a trust estate, the International Tax Agreements Act 1953 is to be disregarded, except for the purpose of references in this Act to that Act.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 22 of 1995, item 19, effective Sch (items 16–35): 29 Mar 1995 (s 2)

s 102AAW — Certain provisions to be disregarded in calculating attributable income

(1) For the purpose of applying this Act in calculating the attributable income of a trust estate, sections 23AI, 128D, 456, 457, and 459A of this Act and section 802 ‑ 15 of the Income Tax Assessment Act 1997 are to be disregarded. (2) For the purpose of applying this Act in calculating the attributable income of a trust estate: (aa) Division 230 of the Income Tax Assessment Act 1997 ; and (a) Division 974 of the Income Tax Assessment Act 1997 ; and (b) the operation of any provision of this Act to the extent to which that operation depends on an expression whose meaning is given by a Division mentioned in paragraph (aa) or (a); are to be disregarded.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 48 of 1991, item 15, effective s 9, 15, 33, 70 and 81–83: 8 Jan 1991 (s 2(2)) s 10–14, 16–31, 34(a), 35, 37–39, 41–51(1), 52–59(1), 60, 61,67, 68(1), 69, 71–80, 84(1)–(8), (10), (11), (13)–(17), 85, 86 and 88–90: 24 Apr 1991 (s 2(1)) s 32 and 84(9): 1 July 1991 (s 2(4)) s 34(b), 36, 40 and 87: 21 Aug 1990 (s 2(3)) s 51(2), 59(2), 62–66, 68(2) and 84(12): 25 Apr 1991 (s 2(5)) | Amended by No 163 of 2001, Sch 1 item 72, effective Sch 1 (items 35–116, 118(1), (2), (6)–(13)): 1 July 2001 (s 2) | Amended by No 133 of 2003, Sch 4 item 23 | Sch 4 item 78, effective Sch 1 (items 1–3, 17(1)) and Sch 4 (items 21–37, 77, 78): 17 Dec 2003 (s 2) | Amended by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6) | Amended by No 147 of 2005, Sch 2 item 4, effective Sch 1 (items 1–3, 169(1)), Sch 2 (items 2–11, 27(1)–(4), 28(1)–(3)), Sch 4 (items 1–3, 12), Sch 5 (items 1–12, 20) and Sch 7 (items 1–13, 19, 20): 14 Dec 2005 (s 2(1) items 2, 3, 5, 6) | Amended by No 101 of 2006, Sch 2 item 285, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3) | Amended by No 136 of 2010, Sch 3 item 1 | Sch 3 item 2, effective s 4 and Sch 5: 7 Dec 2010 (s 2(1) items 1, 10) Sch 3 (items 1, 2: 26 Mar 2009 (s 2(1) item 3)

s 102AAY — Modified application of trading stock provisions

When applying this Act and the Income Tax Assessment Act 1997 in calculating the attributable income of the trust estate, Division 70 of the Income Tax Assessment Act 1997 has effect as if the cost of the item of trading stock were the value to be taken into account at the start of the year of income.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Repealed and substituted by No 121 of 1997, Sch 1 item 70 | Sch 5 item 80, effective s 4: 8 July 1997 (s 2(1)) Sch 2 (items 18–37), Sch 3 (items 31–61), Sch 4 (items 63–138), Sch 5 (items 43–93), Sch 6 (items 68–132), Sch 7 (items 5–7), Sch 8 (items 32–51), Sch 9 (items 16–40), Sch 10 (items 12–15), Sch 11 (items 37–57) and Sch 12 (items 15–23): 1 July 1997 (s 2(3), (5))

s 102AAZ — Modified application of depreciation provisions

(1) For the purpose of determining the attributable income of a trust estate of a year of income (in this section called the attributable year of income ), where property has been held by the trustee of the trust estate in a non ‑ attributable year of income before the attributable year of income, then, in relation to the application of a depreciation provision to the property, subsection (2) applies. (2) Such amount as the Commissioner considers appropriate to take account of the holding of the property as mentioned in subsection (1) is, under the depreciation provision: (a) an allowable deduction to the trustee of the trust estate; or (b) included in the assessable income of the trust estate; as the case requires, for the attributable year of income in substitution for any amount that would otherwise be so included or allowable. (4) For the purpose of exercising the Commissioner’s power under subsection (2) in relation to deductions allowable under Division 40 of the Income Tax Assessment Act 1997 , the Commissioner must assume that the property was used by the trustee of the trust estate during any non ‑ attributable year of income wholly and exclusively for a taxable purpose (within the meaning of that Division).

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 121 of 1997, Sch 6 item 84, effective s 4: 8 July 1997 (s 2(1)) Sch 2 (items 18–37), Sch 3 (items 31–61), Sch 4 (items 63–138), Sch 5 (items 43–93), Sch 6 (items 68–132), Sch 7 (items 5–7), Sch 8 (items 32–51), Sch 9 (items 16–40), Sch 10 (items 12–15), Sch 11 (items 37–57) and Sch 12 (items 15–23): 1 July 1997 (s 2(3), (5)) | Amended by No 79 of 2000, Sch 6 item 12, effective s 4: 30 June 2000 (s 2(1)) Sch 1 (items 1, 2, 4), Sch 2 (items 6A–6J, 7), Sch 3, Sch 4 (items 1–5) and Sch 6 (items 12–15): 1 July 2000 (s 2(2)) Sch 4 (items 6–10): 1 July 2001 (s 2(3)) Sch 5: 10 Dec 1999 (s 2(4)) | Amended by No 77 of 2001, Sch 2 item 60 | Sch 2 item 61, effective Sch 2 (items 20–148, 488(1)): 30 June 2001 (s 2(1)) | Amended by No 101 of 2006, Sch 1 item 105, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3)

s 102AAZB — General modifications—CGT

For the purposes of applying this Act in calculating the attributable income of a trust estate, Parts 3 ‑ 1 and 3 ‑ 3 of the Income Tax Assessment Act 1997 (about CGT) apply as if: (a) sections 118 ‑ 12 (about assets used to produce non ‑ assessable income) and 855 ‑ 50 (about a trust becoming a resident trust) were disregarded; and (b) the trust estate were a resident trust for CGT purposes.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Repealed and substituted by No 46 of 1998, Sch 10 item 118 | Sch 10 item 136 | Sch 10 item 145, effective s 4, Sch 2 (items 49–522), Sch 3 (items 13–20), Sch 4 (items 12–27), Sch 5 (items 6–10), Sch 6 (items 8–30), Sch 7 (items 12–19), Sch 8 (items 2–9) and Sch 9 (items 7, 8): 22 June 1998 (s 2(1)–(4)) | Amended by No 66 of 2003, Sch 3 item 33, effective s 4, Sch 1 and Sch 3 (items 1–46, 47, 48, 140(1), (5), (7)): 30 June 2003 (s 2(1) items 1, 2, 4–6, 14) Sch 3 (item 46A): 29 June 2002 (s 2(1) item 5A) | Amended by No 168 of 2006, Sch 4 item 855 | Sch 4 item 17, effective s 4 and Sch 4 (items 14–28, 112): 12 Dec 2006 (s 2(1) items 1, 5) Sch 3 (items 3–5): 13 Dec 2005 (s 2(1) item 4)

s 102AAZBA — Modified application of CGT—effect of certain changes of residence

For the purposes of applying this Act in calculating the attributable income of a trust estate of a year of income (in this section called the attributable income year ), where: (a) disregarding the assumption in paragraph 102AAZB(b), at any time (in this section called the residence ‑ change time ) during the attributable income year or an earlier year of income, the trust estate ceased to be a resident trust for CGT purposes and became a non ‑ resident trust estate; and (b) the trust estate owned a CGT asset at the residence ‑ change time; and (c) a CGT event happens in relation to the asset during the attributable income year; and (d) section 104 ‑ 170 of the Income Tax Assessment Act 1997 (CGT event I2) applies to the asset in respect of the change of residence for the purposes of the application of this Act apart from this Subdivision; then sections 411 to 414 (inclusive) apply to the asset as if: (e) those sections had effect for the purposes of calculating attributable income under this Subdivision instead of Part X; and (f) any reference in those sections to an eligible CFC were a reference to the trust estate; and (g) any reference in those sections to a commencing day asset were a reference to the asset; and (h) any reference in those sections relating to the eligible CFC’s commencing day or the day following the eligible CFC’s commencing day were a reference relating respectively to the residence ‑ change time or a time immediately after the residence ‑ change time; and (j) subsections 412(2) and (3), and paragraphs 414(3)(b) and (4)(b), referred only to the market value of the asset concerned.

Amendment history: Inserted by No 48 of 1991, effective s 9, 15, 33, 70 and 81–83: 8 Jan 1991 (s 2(2)) s 10–14, 16–31, 34(a), 35, 37–39, 41–51(1), 52–59(1), 60, 61,67, 68(1), 69, 71–80, 84(1)–(8), (10), (11), (13)–(17), 85, 86 and 88–90: 24 Apr 1991 (s 2(1)) s 32 and 84(9): 1 July 1991 (s 2(4)) s 34(b), 36, 40 and 87: 21 Aug 1990 (s 2(3)) s 51(2), 59(2), 62–66, 68(2) and 84(12): 25 Apr 1991 (s 2(5)) | Amended by No 170 of 1995, Sch 1 item 1, effective Sch 1 and Sch 2 (items 1–53), Sch 3 (items 15, 16): 16 Dec 1995 (s 2(1)) | Amended by No 46 of 1998, Sch 10 item 30 | Sch 10 item 112 | Sch 10 item 146 | Sch 10 item 148 | Sch 10 item 149 | Sch 10 item 150, effective s 4, Sch 2 (items 49–522), Sch 3 (items 13–20), Sch 4 (items 12–27), Sch 5 (items 6–10), Sch 6 (items 8–30), Sch 7 (items 12–19), Sch 8 (items 2–9) and Sch 9 (items 7, 8): 22 June 1998 (s 2(1)–(4)) | Amended by No 101 of 2006, Sch 2 item 286, effective Sch 1 (items 1, 5–199), Sch 2 (items 118–565, 1017, 1023–1037) and Sch 6 (items 1–4, 6–15): 14 Sept 2006 (s 2(1) items 2, 4) Sch 3 (items 1–10) and Sch 4 (items 1–11): 1 Jan 2008 (s 2(1) item 3)

s 102AAZC — Modified application of loss provisions—pre ‑ 1990 ‑ 91 losses

In calculating the attributable income of a trust estate of a year of income, no deductions are allowable under Division 36 of the Income Tax Assessment Act 1997 in respect of tax losses of a year of income earlier than the year of income commencing on 1 July 1990.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 39 of 1997, Sch 4 item 108 | Sch 4 item 109, effective Sch 1: 1 July 1997 (s 2) | Amended by No 143 of 2007, Sch 1 item 51 | Sch 1 item 52, effective Sch 1 (items 2, 3, 18–127, 222, 223, 224(1), (2), 225, 226), Sch 4 (items 1–46, 51, 52), Sch 7 (items 9–17, 104(2)) and Sch 8: 24 Sept 2007 (s 2(1) items 2, 4, 11, 12)

s 102AAZD — Assessable income of attributable taxpayer to include attributable income of trust estate to which taxpayer has transferred property or services

(1) Subject to section 102AAZE and to this section, if: (a) an entity is an attributable taxpayer: (i) in relation to the year of income of the taxpayer commencing on 1 July 1990 (which year of income is in this section called the taxpayer’s current year of income ) or in relation to a subsequent year of income of the taxpayer (which year of income is in this section also called the taxpayer’s current year of income ); and (ii) in relation to a trust estate; and (b) any part of a non ‑ resident year of income of the trust estate occurs during the taxpayer’s current year of income; and (c) the taxpayer is a resident at any time during the taxpayer’s current year of income; the assessable income of the taxpayer of the taxpayer’s current year of income includes: (d) if the taxpayer is a resident at all times during the taxpayer’s current year of income—the whole of the notional attributable income of the trust estate of the taxpayer’s current year of income; or (e) if the taxpayer is a resident for only part of the taxpayer’s current year of income—the amount calculated using the formula: where: Notional attributable income means the notional attributable income of the trust estate of the taxpayer’s current year of income. Days in residency period means the number of whole days during the taxpayer’s current year of income when the taxpayer was a resident. Days in year of income means the number of whole days in the taxpayer’s current year of income. (2) A reference in subsection (1) to the notional attributable income of the trust estate of the taxpayer’s current year of income is a reference to: (a) if there is a year of income of the trust estate that begins at the same time as the beginning of the taxpayer’s current year of income—the attributable income of the trust estate of that year of income; or (b) in any other case—the amount obtained: (i) by calculating, for each year of income of the trust estate (in this paragraph called the trust’s year of income ) any part of which occurs during the taxpayer’s current year of income, the amount calculated using the formula: where: Attributable income means the attributable income of the trust estate of the trust’s year of income. Days in overlapping period means the number of whole days in the trust’s year of income that occurred during the taxpayer’s current year of income. Days in trust’s year of income means the number of whole days in the trust’s year of income; and (ii) by adding together the amounts calculated under subparagraph (i). (3) If: (a) an amount is included in the assessable income of an attributable taxpayer of the taxpayer’s current year of income under subsection (1); and (b) before or during the taxpayer’s current year of income, one or more entities other than the taxpayer have transferred property or services to the trust estate concerned; and (c) the taxpayer gives to the Commissioner, in accordance with the approved form, such information in connection with the operation of this Division as is required by the form to be set out; the Commissioner may reduce the amount included in the taxpayer’s assessable income of the taxpayer’s current year of income under subsection (1) having regard to: (d) the extent to which the attributable income of the trust estate is, in the opinion of the Commissioner, attributable to property or services transferred by the taxpayer; and (e) such other matters as the Commissioner considers relevant. (4) If: (a) apart from this subsection, an amount would be included in the assessable income of an attributable taxpayer of the taxpayer’s current year of income under subsection (1) in relation to a particular trust estate; and (b) the taxpayer could not reasonably be expected to obtain the information required to determine the attributable income of the trust estate; the following provisions have effect: (c) no amount is to be included in the assessable income of the taxpayer of the taxpayer’s current year of income under subsection (1) in relation to the trust estate; (d) the assessable income of the taxpayer of the taxpayer’s current year of income includes the amount obtained: (i) if any of the transfers that were taken into account in determining whether the taxpayer was an attributable taxpayer in relation to the taxpayer’s current year of income and in relation to the trust estate were made by the taxpayer to the trust estate after the IP time—by calculating, for each such transfer, the amount calculated using the formula: where: Adjusted value of the transfer has the meaning given by subsection (5). Weighted statutory interest rate means the weighted statutory interest rate in relation to the taxpayer’s current year of income; and (ii) if any of the transfers that were taken into account in determining whether the taxpayer was an attributable taxpayer in relation to the taxpayer’s current year of income and in relation to the trust estate were made by the taxpayer to the trust estate before the IP time—the amount calculated using the formula: where: Adjusted net worth of trust estate has the meaning given by subsection (6). Weighted statutory interest rate means the weighted statutory interest rate in relation to the taxpayer’s current year of income; and (iii) by adding together the amounts calculated under subparagraphs (i) and (ii). (5) For the purposes of subsection (4), the adjusted value of a transfer of property or services made by an attributable taxpayer to a trust estate is: (a) if the transfer occurred during the taxpayer’s current year of income—the amount calculated using the formula: where: Market value of transferred property or services means the market value, immediately before the transfer, of the property or services. Days after transfer means the number of whole days in the taxpayer’s current year of income after the day on which the transfer took place. Days in year of income means the number of whole days in the taxpayer’s current year of income; or (b) if the transfer of the property or services occurred before the taxpayer’s current year of income—the sum of: (i) the market value, immediately before the transfer, of the property or services; and (ii) the amount obtained: (A) by calculating, in respect of the transfer, for each year of income preceding the taxpayer’s current year of income, the amount ascertained using the formula in subparagraph (4)(d)(i); and (B) by adding together the amounts calculated under sub ‑ subparagraph (A). (6) For the purposes of the application of subsection (4) in relation to a transfer of property or services made by an attributable taxpayer to a trust estate, the adjusted net worth of the trust estate is: (a) if the taxpayer’s current year of income is the year of income commencing on 1 July 1990—the 1 July 1990 net worth of the trust estate; or (b) in any other case—the sum of: (i) the 1 July 1990 net worth of the trust estate; and (ii) the amount obtained: (A) by calculating, in respect of the transfer, for each year of income preceding the taxpayer’s current year of income, the amount ascertained using the formula in subparagraph (4)(d)(ii); and (B) by adding together the amounts calculated under sub ‑ subparagraph (A). (7) If: (a) subsection (4) applies to an attributable taxpayer in relation to the taxpayer’s current year of income; and (b) any of the transfers taken into account in determining whether the taxpayer was an attributable taxpayer in relation to the taxpayer’s year of income and in relation to the trust estate concerned were made before the IP time; and (c) the taxpayer gives to the Commissioner, in accordance with the approved form, such information in connection with the operation of this Division as is required by the form to be set out; the Commissioner may reduce the amount included in the taxpayer’s assessable income of the taxpayer’s current year of income under subsection (4) having regard to: (d) the extent to which the market value, as at the beginning of the taxpayer’s current year of income, of the assets of the trust estate is, in the opinion of the Commissioner, attributable to property or services transferred by the taxpayer before the IP time; and (e) such other matters as the Commissioner considers relevant.

Amendment history: Inserted by No 5 of 1991, item 5 | item 16 | item 17 | item 100 | item 1990 | item 29 | item 371, effective s 4–61: 8 Jan 1991 (s 2)

s 102AAZE — Accruals system of taxation does not apply to small amounts

An amount is not to be included in the assessable income of the taxpayer of a year of income under section 102AAZD in relation to a trust estate that is a listed country trust estate in relation to the year of income if the amount obtained by: (a) identifying each trust estate in relation to which the taxpayer is an attributable taxpayer in relation to the year of income; and (b) calculating the attributable income of the year of income of each such trust estate; and (c) adding the amounts calculated under paragraph (b); does not exceed the lesser of the following amounts: (d) $20,000; (e) 10% of the total of the net incomes of each of those trust estates of the year of income.

Amendment history: Inserted by No 5 of 1991, item 100, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 155 of 1997, Sch 1 item 77, effective 24 Oct 1997 (s 2) | Amended by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6)

s 102AAZF — Only resident partners, beneficiaries etc. liable to be assessed as a result of attribution

Section 460 applies to an amount included in the assessable income of a taxpayer under section 102AAZD in a corresponding way to the way in which section 460 applies to an amount included in the assessable income of a taxpayer under section 456 or 457 and, for the purposes of that corresponding application, references in sections 336, 338 and 460 to a Part X Australian resident are to be read as references to a resident within the meaning of section 6.

Amendment history: Inserted by No 5 of 1991, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 96 of 2004, effective Sch 2 (items 1–80, 85–138, 140, 141) and Sch 3: 29 June 2004 (s 2(1) items 3, 5, 6)

s 102AAZG — Keeping of records

(1) Subject to this section, a person who is an attributable taxpayer: (a) in relation to the year of income of the person commencing on 1 July 1990 or in relation to a subsequent year of income of the person; and (b) in relation to a particular trust estate; must keep records (in Australia or elsewhere) containing particulars of: (c) the acts, transactions and other circumstances that resulted in the person being an attributable taxpayer in relation to that year of income and in relation to that trust estate; and (d) except where subsection 102AAZD(4) applies in relation to the trust estate and in relation to the year of income of the person—the basis of the calculation of the attributable income of the trust estate for each year of income of the trust estate any part of which occurred during the year of income of the person; and (e) the basis of the calculation of the amounts (including nil amounts) included in the assessable income of the person of the year of income of the person under section 102AAZD. Note: There is an administrative penalty if you do not keep or retain records as required by this section: see section 288 ‑ 25 in Schedule 1 to the Taxation Administration Act 1953 . (2) A person who contravenes subsection(1) commits an offence punishable on conviction by a fine not exceeding 30 penalty units. Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit. (2A) An offence under subsection (2) is an offence of strict liability. Note: For strict liability , see section 6.1 of the Criminal Code . (3) A person who is required by this section to keep records must: (a) keep the records in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and (b) keep the records so as to enable the person’s liability under this Act to be readily ascertained. (4) This section does not require a person to keep a record of information if: (a) the person did not know, and had no reasonable grounds to suspect, that the person was an attributable taxpayer of the kind mentioned in subsection (1); or (b) the person did not know that, and made all reasonable efforts to ascertain whether, the person was an attributable taxpayer as mentioned in subsection (1); or (c) the person did not know, and made all reasonable efforts to obtain, the information. Note: A defendant bears an evidential burden in relation to the matters in subsection (4), see subsection 13.3(3) of the Criminal Code . (5) Subject to subsections (6) and (7), the following provisions apply to a partnership as if the partnership were a person: (a) subsections (1) to (4) (inclusive) of this section; (b) subsections 262A(4) and (5), in so far as those subsections apply to records kept under or for the purposes of this section; (c) Part III of the Taxation Administration Act 1953 , in so far as that Part of that Act relates to the provisions covered by paragraph (a) or (b) of this subsection. (6) Where, by virtue of subsection (5), an offence is taken to have been committed by a partnership, that offence is taken to have been committed by each of the partners. (7) In a prosecution of a person for an offence by virtue of subsection (6), it is a defence if the person proves that the person: (a) did not aid, abet, counsel or procure the act or omission by virtue of which the offence was taken to have been committed; and (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, an act or omission by virtue of which the offence is taken to have been committed. Note 1: The defence under subsection (7) does not apply in relation to offences under Part 2.4 of the Criminal Code . Note 2: A defendant bears a legal burden in relation to the matters in subsection (7), see section 13.4 of the Criminal Code .

Amendment history: Inserted by No 5 of 1991, item 100, effective s 4–61: 8 Jan 1991 (s 2) | Amended by No 91 of 2000, Sch 2 item 16 | Sch 2 item 17 | Sch 2 item 18, effective Sch 2 (items 13–48, 130–142, 144(1), 145–147): 1 July 2000 (s 3(1)) | Amended by No 146 of 2001, Sch 4 item 60 | Sch 4 item 61 | Sch 4 item 62, effective Sch 4 (items 41–91): 15 Dec 2001 (s 2(1)) | Amended by No 4 of 2016, effective Sch 4 (items 1, 188, 397–399): 10 Mar 2016 (s 2(1) item 6)

s 102AA — Interpretation

(1) In this Division, unless the contrary intention appears: agreement means any agreement, arrangement, understanding or scheme, whether formal or informal, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings. occupation includes any office, employment, trade, business, profession, vocation or calling, but does not include a course of education at a school, college, university or similar institution. property means property whether real or personal, and includes money. (2) In this Division: (a) a reference to the derivation by a person of assessable income shall be read as including a reference to the inclusion of an amount in the assessable income of the person; and (b) a reference to the derivation by a person of any assessable income from particular property shall be read as including a reference to the inclusion of an amount in the assessable income of the person in respect of that property. (3) In this Division, a reference to the share of a beneficiary of the net income of a trust estate shall be read as a reference to a share of the beneficiary of the net income of a trust estate: (a) that is included in the assessable income of the beneficiary under section 97 or 100; or (b) in respect of which the trustee of the trust estate is liable to be assessed and to pay tax in pursuance of section 98. (4) A reference in this Division to income that is derived from particular property shall be read as including a reference to income that is derived from property that, in the opinion of the Commissioner, represents that property.

Amendment history: Inserted by No 50 of 1942, effective s 26: 28 July 1942 (s 26(2)) Remainder: 6 Oct 1942 (s 2) | Amended by No 4 of 1945, effective 15 June 1945 | Repealed by No 85 of 1959, effective s 3–36: 2 Dec 1959 (s 2(1))

s 102AB — Application of Division

This Division applies in relation to the year of income that commenced on 1 July 1979 and in relation to all subsequent years of income.

s 102AC — Persons to whom Division applies

(1) For the purposes of this Division, a person is a prescribed person in relation to a year of income if: (a) the person is less than 18 years of age on the last day of the year of income; and (b) the person is not an excepted person in relation to the year of income. (2) Subject to this section, a person (in this subsection referred to as the minor ) is an excepted person in relation to a year of income for the purposes of this Division if, and only if: (b) the minor was engaged in a full ‑ time occupation on the last day of the year of income; (c) the minor is a person: (i) in respect of whom a carer allowance under the Social Security Act 1991 was payable in respect of a period that included the last day of the year of income; or (ii) to whom a disability support pension under that Act was payable in respect of a period that included the last day of the year of income; or (d) the Commissioner: (i) has received a certificate issued by a legally qualified medical practitioner certifying that the minor is: (A) a disabled child, or a disabled adult, within the meaning of Part 2.19 of the Social Security Act 1991 ; or (B) a person who has a continuing inability to work within the meaning of Part 2.3 of the Social Security Act 1991 or is permanently blind; and (ii) is satisfied that, on the last day of the year of income, the minor was a person of the kind mentioned in sub ‑ subparagraph (i)(A) or (B); (da) the minor is the principal beneficiary of a special disability trust; (e) a double orphan pension was payable in respect of the minor under the Social Security Act 1991 in respect of a period that included the last day of the year of income; (f) but for section 1003 of the Social Security Act 1991 , a double orphan pension would have been payable in respect of the minor under that Act in respect of a period that included the last day of the year of income; or (g) the Commissioner: (i) has received a certificate issued by a legally qualified medical practitioner certifying that the minor is a person who, by reason of a permanent disability, is unlikely to be able to engage in a full ‑ time occupation; and (ii) is satisfied that, on the last day of the year of income, the minor was such a person. (3) Where: (a) a double orphan pension was payable, or would, but for section 1003 of the Social Security Act 1991 , have been payable, in respect of a person under that Act in respect of a period during a year of income, being a period that included the last day of the year of income; and (b) during the whole of the period referred to in paragraph (a), the person was wholly or substantially dependent for support on a relative or relatives of the person; that person shall not be taken by virtue of paragraph (2)(e) or (f) to be an excepted person in relation to the year of income. (4) Where: (a) the Commissioner is of the opinion that, during a period during a year of income, being a period that included the last day of the year of income, a person was a person who, by reason of a permanent disability, was unlikely to be able to engage in a full ‑ time occupation; and (b) during the whole of the period referred to in paragraph (a), the person was wholly or substantially dependent for support on a relative or relatives of the person; that person shall not be taken, by virtue of paragraph (2)(g), to be an excepted person in relation to the year of income. (5) For the purposes of subsections (3) and (4), a person shall be taken to have been wholly or substantially dependent for support on a relative or relatives of the person during any period during which that person resided with a relative or relatives of the person unless the contrary is established to the satisfaction of the Commissioner. (6) Subject to this section, a person shall be taken, for the purposes of subsection (2), to have been engaged in a full ‑ time occupation on the last day of a year of income if, and only if: (a) the person was, on the last day of the year of income, a person engaged in a full ‑ time occupation; or (b) in a case to which paragraph (a) does not apply—the person was engaged in a full ‑ time occupation during the year of income for a period of not less than 3 months or for periods the aggregate of which is not less than 3 months. (7) Where: (a) during a period during a year of income, a person was engaged in a full ‑ time occupation; and (b) during the year of income and after the expiration of that period, the person was engaged in a course of full ‑ time education at a school, college, university or similar institution; no regard shall be had to that period in determining whether the person is to be taken, by virtue of paragraph (6)(b), to have been engaged in a full ‑ time occupation on the last day of the year of income. (8) A person shall not be taken to have been engaged in a full ‑ time occupation on the last day of a year of income unless the Commissioner is satisfied that, on that day: (a) the person had the intention of engaging in a full ‑ time occupation or full ‑ time occupations during the whole or a substantial part of the next succeeding year of income; and (b) the person did not have the intention of engaging in a course of full ‑ time education at a school, college, university or similar institution at any time during the next succeeding year of income.

Amendment history: Inserted by No 19 of 1980, effective 30 Apr 1980 (s 2) | Amended by No 108 of 1981, effective s 4–25: 24 June 1981 (s 2) | Amended by No 106 of 1982, effective 30 Oct 1982 (s 2) | Amended by No 78 of 1988, item 66, effective s 8–13, 14(1), 16–36, 38, 55(1)–(14), 56, 57 and Sch: 24 June 1988 (s 2(1)) s 14(2): 1 July 1988 (s 2(2)) s 15: 22 Dec 1986 (s 2(3)) s 37, 39–53 and 55(15)–(25):1 Nov 1988 (s 2(4) and gaz 1988, No S331) | Amended by No 107 of 1989, Sch 1 item 15 | Sch 1 item 21, effective s 9–23, 32 and Sch 1: 30 June 1989 (s 2(1)) | Amended by No 135 of 1990, item 39, effective s 7–33, 38(1), (2), 39(1) and Sch (Pt 1): 28 Dec 1990 (s 2(1)) s 38(3), 39(2) and Sch (Part 3): 1 July 1993 (s 2(3)) s. 38(4), 39(3) and Sch (Part 4): 8 Jan 1991 (s 2(4)) | Amended by No 100 of 1991, Sch 2 item 35, effective s 15–28, 30–32, 33(b), (e), (f), 34–76 and 79–84): 27 June 1991 (s 2(1)) s 29 and 77: 24 Apr 1991 (s 2(3), (6)) s 33(a): 16 June 1990 (s 2(4)) s 33(c) and (d): 30 June 1989 (s 2(5)) s 78: 8 Jan 1991 (s 2(7)) | Amended by No 216 of 1991, effective s 10, 12–39, 41, 43, 44, 67–81, 83–86, 89(1), (3)–(19), 91, 92, 102, 103 and Sch 1–4: 24 Dec 1991 (s 2(1)) s 11 and 89(2): 22 Jan 1991 (s 2(2)) s 40 and 42: 6 Jan 1992 (s 2(3)) s 45, 46, 48–51, 54–58, 60–66, 90(1), (3)–(14), 93–96 and 98–101: 21 Aug 1991 (s 2(4)) s 47, 52, 53, 59, 90(2) and 97: 3 pm (A.C.T) 20 Aug 1991 (s 2(5)) s 82(2): 25 Dec 1991 (s 2(6)) | Amended by No 13 of 1999, effective Sch 1 (items 126–128): 1 July 1997 (s 2(3)) Sch 2 (items 56–64): 1 July 1999 (s 2(2)(b)) | Amended by No 33 of 2010, effective Sch 2 (items 1–5): 13 Apr 2010 (s 2(1) item 3) | Amended by No 90 of 2010, Sch 4 item 4, effective Sch 4 (items 1–4, 8): 29 June 2010 (s 2(1) item 3)

s 102AD — Taxable income to which Division applies

The eligible taxable income of a year of income of a person who is a prescribed person in relation to the year of income is the amount (if any) remaining after deducting from the eligible assessable income of the person of the year of income: (a) any deductions allowable to the person in relation to the year of income that relate exclusively to that eligible assessable income; (b) so much of any other deductions (other than apportionable deductions) allowable to the person in relation to the year of income as, in the opinion of the Commissioner, may appropriately be related to that eligible assessable income; and (c) the amount that bears to the apportionable deductions allowable to the person in relation to the year of income the same proportion as the amount that, but for this paragraph, would be the eligible taxable income of the person of the year of income bears to the sum of: (i) the taxable income of the person of the year of income; and (ii) the apportionable deductions allowable to the person in relation to the year of income.

Amendment history: Inserted by No 19 of 1980, effective 30 Apr 1980 (s 2)