Income Tax Assessment Act 1936

SCHEDULE 2F - TRUST LOSSES AND OTHER DEDUCTIONS  

Division 269 - Concepts and tests applied in Divisions 266 and 267  

Subdivision 269-E - Control a non-fixed trust  

SECTION 269-95   CONTROL A NON-FIXED TRUST  

Basic meaning

269-95(1)    
Subject to this section, a group (see subsection (5)) controls a non-fixed trust if:

(a) the group has the power, by means of the exercise of a power of appointment or revocation or otherwise, to obtain beneficial enjoyment (directly or indirectly) of the capital or income of the trust; or

(b) the group is able (directly or indirectly) to control the application of the capital or income of the trust; or

(c) the group is capable, under a scheme, of gaining the beneficial enjoyment in paragraph (a) or the control in paragraph (b); or

(d) the trustee is accustomed, under an obligation or might reasonably be expected, to act in accordance with the directions, instructions or wishes of the group; or

(e) the group is able to remove or appoint the trustee; or

(f) the group acquires more than a 50% stake in the income or capital of the trust.

Replacement group after death etc.

269-95(2)    
The consequences set out in subsection (3) apply if:

(a) a group (the original group ) ceases to control a non-fixed trust only because of the death, incapacitation or breakdown in the marriage or relationship of the individual comprising, or an individual included in, the group; and

(b) another group (the replacement group ) begins to control the trust within the following period (whether or not any other group controlled the trust in the interim):

(i) one year after the death, incapacitation or breakdown in the marriage or relationship; or

(ii) such longer period as the Commissioner determines in relation to the death, incapacitation or breakdown in the marriage or relationship; and

(c) the replacement group consists of:

(i) if the individual who died or became incapacitated or whose marriage or relationship broke down comprised the original group - one or more individuals who are members of the individual ' s family (see section 272-95 ); or

(ii) in any other case - one or more such individuals together with all of the persons who were members of the original group, other than any individual who has died or become incapacitated or whose marriage or relationship has broken down; and

(d) the replacement group began to control the trust only because of the death, incapacitation or breakdown in the marriage or relationship of the individual; and

(e) disregarding any individual who died or became incapacitated or whose marriage or relationship broke down and the one or more individuals covered by paragraph (c) - the beneficiaries of the trust immediately before the original group ceased to control the trust are the beneficiaries of the trust immediately after the replacement group begins to control the trust.

Consequences of subsection (2)

269-95(3)    
For the purposes of subsection (2), the consequences are that:

(a) the replacement group is taken to have controlled the trust from the time when the original group began to control it until the time when the replacement group actually began to control it; and

(b) the original group is taken not to have controlled the trust; and

(c) if:

(i) a person or persons (other than a replacement group) began to control the trust at some time during the period from the time the original group ceased to control the trust until the replacement group began to do so; and

(ii) the person or persons began to control the trust only because of the death, incapacitation or breakdown in the marriage or relationship of the individual; and

(iii) the control did not continue after the replacement group began to control the trust;

the person or persons are taken not to have controlled the trust.

Deemed absence of control

269-95(4)    
If:

(a) at a particular time, a group controls a non-fixed trust; and

(b) the Commissioner, having regard to:

(i) the identity of the beneficiaries of the trust at any time before and at any time after the group began to control the trust; and

(ii) all other relevant circumstances;

considers that it is reasonable that the group be taken not to control the trust at the particular time;

the group is taken not to control the trust at the particular time.

Group

269-95(5)    
A group is:

(a) a person; or

(b) a person and one or more associates; or

(c) 2 or more associates of a person.