Income Tax Assessment Act 1997

Pt 3-1 inserted by No 46 of 1998.

Div 115 inserted by No 169 of 1999.

S 115-230(1) substituted by No 62 of 2011, s 3 and Sch 2 item 13, effective 29 June 2011. For application provisions see note under s 115-200 . S 115-230(1) formerly read:

115-230(1)
The purpose of this section is to allow a trustee of a resident testamentary trust to make a choice that has the effect that the trustee will be assessed on *capital gains of the trust in situations where:

(a) the gains would otherwise form part of a share of the net income of the trust estate that would be included in the assessable income of a beneficiary who could not benefit from them; or

(b) the trustee would otherwise be liable to tax on the gains on behalf of such a beneficiary under section 98 of the Income Tax Assessment Act 1936 .

S 115-230(2) substituted by No 62 of 2011, s 3 and Sch 2 item 14, effective 29 June 2011. For application provisions see note under s 115-200 . S 115-230(2) formerly read:

115-230(2)
A trustee can only make a choice under this section in relation to a trust estate:

(a) that results 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; and

(b) that is, in the income year in respect of which the choice is made, a resident trust estate within the meaning of Division 6 of Part III of the Income Tax Assessment Act 1936 .

S 115-230(3) amended by No 62 of 2011, s 3 and Sch 2 items 15 and 16, by substituting paras (a) and (b) for paras (a) to (c), and substituting " capital gain " for " beneficiary's share " , effective 29 June 2011. For application provisions see note under s 115-200 . Paras (a) to (c) formerly read:

(a) apart from this section:

(i) a share of the net income of a trust estate that is attributable to *capital gains would be included in the assessable income of a beneficiary for an income year under section 97 of the Income Tax Assessment Act 1936 ; or

(ii) a trustee would, on behalf of a beneficiary, be assessed and liable to pay tax for an income year under section 98 of the Income Tax Assessment Act 1936 in respect of a share of the net income of a trust estate that is attributable to capital gains; and

(b) the beneficiary does not have a vested and indefeasible interest in trust property representing that share; and

(c) trust property representing that share has not been paid to or applied for the benefit of the beneficiary;

S 115-230(4) substituted by No 62 of 2011, s 3 and Sch 2 item 17, effective 29 June 2011. For application provisions see note under s 115-200 . S 115-230(4) formerly read:

115-230(4)
These are the consequences if the trustee makes a choice that this subsection applies in respect of a beneficiary ' s share:

(a) for the purposes of sections 97 , 98A and 100 of the Income Tax Assessment Act 1936 , the share is taken not to be included in the assessable income of the beneficiary;

(b) the trustee is not assessed, and is not liable to pay tax, in respect of the share under section 98 of the Income Tax Assessment Act 1936 .

Note 1:

Because of these consequences in relation to sections 97 and 98 of the Income Tax Assessment Act 1936 , the trustee will be assessed on the beneficiary ' s share under section 99A or (at the Commissioner ' s discretion) 99 of that Act.

Note 2:

Section 115-215 does not apply in relation to an amount to which this subsection applies.

S 115-230 inserted by No 79 of 2007 , s 3 and Sch 3 item 2, applicable in relation to the 2005-2006 income year and later income years. No 79 of 2007 , s 3 and Sch 3 items 3 and 4 also contains the following application provisions, effective 21 June 2007:

Application  
3(2)
Despite subsection 115-230(5) of the Income Tax Assessment Act 1997 , a choice under subsection 115-230(3) of that Act may be made no later than 2 years after the commencement of section 115-230 (or a later time allowed by the Commissioner) if the choice is in respect of the 2005-2006 income year.

3(3)
Despite subsection 115-230(5) of the Income Tax Assessment Act 1997 , a choice under subsection 115-230(3) of that Act may be made no later than 2 years after the commencement of section 115-230 (or a later time allowed by the Commissioner) if:

(a) section 115-230 commences after the end of the 2006-2007 income year; and

(b) the choice is in respect of the 2006-2007 income year.
Amendment of assessments  
4
Section 170 of the Income Tax Assessment Act 1936 does not prevent the amendment of an assessment if:

(a) the assessment was made before the commencement of this item; and

(b) an application to amend the assessment is made, in the form approved for the purposes of subsection 170(5) , within 2 years of the commencement of this item; and

(c) the amendment is made for the purpose of giving effect to a choice under subsection 115-230(3) of the Income Tax Assessment Act 1997 .