Income Tax Assessment Act 1936

PART III - LIABILITY TO TAXATION  

Division 6AAA - Special provisions relating to non-resident trust estates etc.  

Subdivision D - Accruals system of taxation of certain non-resident trust estates  

SECTION 102AAT   ACCRUALS SYSTEM OF TAXATION - ATTRIBUTABLE TAXPAYER  

102AAT(1)   [Entity an attributable taxpayer]  

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.

102AAT(2)   [Partnerships and trust estates]  

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.

102AAT(3)   [Natural persons]  

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.

102AAT(4)   [Entity deemed an attributable taxpayer]  

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.