Trusts

Appointment of public officer

If a trust carries on a business in Australia or derives income from property in Australia and there is no trustee who is an Australian resident, the trustee generally appoints a public officer. The public officer must be a natural person of at least 18 years of age residing in Australia and who is capable of understanding the nature of their appointment as the public officer. The appointment of a public officer is made by giving written notice, specifying the name and address of the public officer, to the Commissioner.

The trust does not need to appoint a public officer if the Australian income of the trust consists solely of dividends, interest and/or royalties subject to withholding tax, or the Commissioner has granted an exemption in writing.

If the trustee does not appoint a public officer they may be prosecuted. A fine of up to $110 (one penalty unit) may be imposed for each day that the trustee fails or neglects to meet the requirements.

The public officer is answerable for doing everything required to be done by the trustee under the ITAA 1936, the ITAA 1997 or the Regulations. If the public officer defaults on any of these duties, they are liable to the same penalties as the trustee.

Lodging a trust tax return

A notice advising which entities are required to lodge tax returns is published annually in the Federal Register of Legislative Instruments.

Irrespective of the amount of income derived, a trust tax return is lodged by the trustees resident in Australia or by any one of them if required by the Commissioner.

If no trustee is resident in Australia, the trust tax return is lodged by the public officer of the trust or, if a public officer does not need to be appointed, by an agent for the trustees in Australia.

However, a trust tax return is not required if the trust was a subsidiary member of a consolidated group for the full income year, or if the trust is a corporate unit trust or a public trading trust. In the latter two cases, the trusts are taxed as companies and are therefore required to lodge a Company tax return 2010.

For children's saving accounts, see Taxation Ruling IT 2486 Income tax: children's savings accounts.

Keep a copy of the trust tax return and related documents, as there may be a charge for obtaining a copy from the Tax Office.

The address for lodging tax returns is:

Australian Taxation Office
GPO Box 9845
[insert the name and postcode of your capital city]

For example;

Australian Taxation Office
GPO Box 9845
SYDNEY NSW 2001

The following are the only schedules that are sent with the trust tax return:

• Capital gains tax (CGT) schedule 2010 (NAT 3423)
• Family trust election, revocation or variation 2010 (NAT 2787)
• Interposed entity election or revocation 2010 (NAT 2788)
• Losses schedule 2010 (NAT 3425)
• Non-individual PAYG payment summary schedule 2010 (NAT 3647)
• Personal services income schedule 2010 (NAT 3421)
• Schedule 25A 2010 (NAT 1125).

Some schedules, such as the Thin capitalisation schedule, must be posted to a specific address.

Do not send other schedules or documents with your tax return unless instructed to attach them as 'other attachments'. Keep any other schedules or documents with the trust's tax records. Tax returns lodged without all the required schedules may not be considered to have been lodged in the approved form. Unless the trust tax return and all required schedules are lodged by the due date, a failure to lodge on time penalty may be applied.

Tax offsets

A beneficiary may be entitled to claim certain tax offsets, such as those for:

• a dependent spouse (without dependent child or student)
• medical expenses
• private health insurance
• senior Australians
• pensioners
• education tax refund
• national rental affordability scheme tax offset
• foreign income tax offset.

If a trustee is assessable on behalf of a beneficiary who is presently entitled but under a legal disability, the trustee may be entitled to tax offsets to which that beneficiary would be entitled. Provide a statement on a separate sheet of paper showing the type and amounts of any claim for a tax offset. Sign the statement, attach it to the tax return and print X in the Yes box at Have you attached any 'other attachments'? at the top of page 1 of the tax return.

Private health insurance tax offset

If you are a trustee who is assessable on behalf of a beneficiary who is presently entitled but under a legal disability (see section 98 of the ITAA 1936) and the beneficiary is entitled to a tax offset under the private health insurance rebate, you can claim the tax offset for this rebate up to the value of any tax payable. To do this, provide a statement on a separate sheet of paper showing:

• trust's name
• trust's TFN
• beneficiary's name
• beneficiary's TFN
• amount of tax offset claimed
• health insurer membership number
• health insurer identification (ID) code
• type of health cover provided.

Sign the statement, attach it to the trust tax return and print X in the Yes box at Have you attached any 'other attachments'? at the top of page 1 of the tax return.

If the value of the private health insurance tax offset exceeds the amount of tax payable, you cannot claim a refund of any of the excess. To claim these excess amounts, the beneficiary must lodge their own personal tax return and make a claim for the full amount there.

Age-based percentage rebates apply to premiums paid for appropriate private health insurance cover provided on or after 1 April 2005. Details of the rebate levels are on the annual Private Health Insurance Statement issued by your health insurer.

Special cases

All trusts lodge a trust tax return except corporate unit trusts and public trading trusts, which are taxed as companies and are therefore required to lodge a Company tax return 2010. These entities are defined below and must apply for a company TFN.

The trust loss provisions of Schedule 2F to the ITAA 1936 apply to corporate unit trusts and public trading trusts (even though they are taxed as companies), except where the corporate unit trust or public trading trust is participating in the consolidation regime for taxing wholly owned groups as a single income tax entity. For more information about the trust loss provisions, see appendix 8. For detailed information about the treatment of losses under consolidation, see Consolidation.

Corporate unit trusts

A trust is a corporate unit trust for an income year if:

• the trust is a public unit trust
• under an arrangement, a business or property previously carried on or owned by a company is transferred to the unit trust and the shareholders of the company are entitled to take up units in the unit trust, and
• the trust is either a resident unit trust or was a corporate unit trust in a previous income year.

A public unit trust for this purpose is a trust whose units are listed on a stock exchange or offered to the public or held by 50 or more persons. A unit trust is not a public unit trust if 20 or fewer persons hold 75% or more of the beneficial interest of the income or the property of the trust.

A unit trust is a resident unit trust for an income year if, at any time during the income year:

• either
• • any property of the unit trust was situated in Australia, or
  • the trustee of the unit trust carried on business in Australia, and
   
• either
• • the central management and control of the unit trust was in Australia, or
  • one or more persons who were residents held more than 50% of the beneficial interests in the income or the property of the unit trust.
   

Public trading trusts

A trust is a public trading trust if:

• the trust is a public unit trust
• the trust is a trading trust
• either:
• • the trust is a resident unit trust, defined as above under corporate unit trust, or
  • the trust was a public trading trust in a previous income year, and
   
• the trust is not a corporate unit trust.

A public unit trust for this purpose is a trust any of whose units are listed on a stock exchange or offered to the public or whose units are held by 50 or more persons except where 20 or fewer persons hold or have the right to hold 75% or more of the beneficial interests in the income or property of the trust and the Commissioner does not consider it reasonable to treat the trust as a public unit trust.

In addition, a unit trust is a public unit trust if one or more entities exempt from tax, or complying superannuation funds, complying approved deposit funds (ADF), or pooled superannuation trusts (PST) hold or have the right to hold 20% or more of the beneficial interests in the income or property of the trust, or are paid or credited with 20% or more of the moneys paid or credited by the trustee to the unit holders, or an arrangement exists whereby the two outcomes just outlined could have been obtained.

Broadly speaking, a trading trust for this purpose is a trust whose trustee:

• carries on a trading business, or
• controls, or is able to control, the carrying on of a trading business by another person.

A trading business for this purpose is a business that does not consist wholly of:

• investing in land for rent
• investing or trading in loans, securities, shares, units in a unit trust, futures contracts, forward contracts, interest rate swap contracts, currency swap contracts, forward exchange rate contracts, forward interest rate contracts, life assurance policies, or rights or options in any of these, or
• investing or trading in other financial instruments that arise under financial arrangements (other than certain excepted arrangements).

From the 2008-09 income year there is a 2% safe harbour allowance at the whole of trust level for non-trading income and for investments in land there is a 25% safe harbour allowance for non-rental, non-trading income from those investments. However, the trustee of a unit trust may choose not to apply those safe harbours.

Annual investment income reporting

Managers of unit trusts that are investment bodies for the purposes of Part VA of the ITAA 1936 may be required under regulation 56 of the Income Tax Regulations 1936 (ITR 1936) to lodge an Annual investment income report if they made distributions to unit holders during the year. The report requires details of distributions, including the amounts paid and the names of the payees. For more information, phone 1800 072 681.

Payment arrangements

Paying your tax debt

Income tax debts must be paid by the due date.

We offer you a range of convenient payment options, both in Australia and overseas. Go to www.ato.gov.au/howtopay for more information.

If the trust tax return is lodged on time, any tax payable by the trustee is due on the later of:

• 21 days after the due date for lodgment of the tax return specified in the legislative instrument registered on the Federal Register of Legislative Instruments, or
• 21 days after receipt of the notice of assessment.

If the trust tax return is lodged late or not at all, any tax payable by the trustee is due 21 days after the due date for lodgment.

The general interest charge (GIC) accrues on outstanding amounts from the due date for payment.

For more information on the GIC, phone the Business Infoline 13 28 66.

What if you cannot pay your tax debt by the due date?

If you cannot pay your tax debt by the due date, phone the Account Management Infoline 13 11 42 to avoid action being taken to recover the debt.

We expect you to organise your affairs to ensure that you can pay your debt on time. Nevertheless, we may allow you to pay your debt under a mutually agreed payment plan if you have genuine difficulty paying your debt on time but have the capacity to eventually pay the debt. The GIC will continue to accrue on any outstanding amounts of tax during any payment arrangement.

In some circumstances the trustee may need to provide details of the trust's financial position, including a statement of its assets and liabilities and details of income and expenditure. We will also want to know what steps the trustee has taken to obtain funds to pay its tax debt and the steps the trustee is taking to meet future tax debts on time.