Income Tax Assessment Act 1936

PART III - LIABILITY TO TAXATION

Division 6D - Provisions relating to certain closely held trusts

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Subdivision C - Trustee beneficiary non-disclosure tax on share of net income

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SECTION 102UK TRUSTEE BENEFICIARY NON-DISCLOSURE TAX WHERE NO CORRECT TB STATEMENT

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102UK(1)

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Subject to subsection (2A), this section applies if:

(a) a share of the net income of a closely held trust for a year of income is included in the assessable income of a trustee beneficiary of the trust under section 97 ; and

(b) the share comprises or includes an untaxed part; and

(c) the trustee of the closely held trust is not covered by a determination under subsection (1A) for the year of income; and

(ca) the closely held trust is none of the following:

(i) a family trust (within the meaning of section 272-75 in Schedule 2F );

(ii) a trust in relation to which an interposed entity election has been made and is in force in accordance with section 272-85 in Schedule 2F ;

(iii) a trust covered by subsection 272-90(5) in Schedule 2F ; and

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(d) during the TB statement period in relation to the year of income, the trustee of the closely held trust does not make and give to the Commissioner a correct TB statement about the share.

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Determination that a class of trustees is not required to give a correct TB statement

102UK(1A)

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The Commissioner may, by legislative instrument, determine that a specified class of trustees is not required to make a correct TB statement for a year of income.

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102UK(1B)

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A determination under subsection (1A):

(a) may be expressed to be subject to conditions; and

(b) may be for one or more years of income.

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Consequences of section applying

102UK(2)

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If this section applies:

(a) either:

(i) if the trustee of the closely held trust is the only person in the trustee group (see subsection (3)) - the trustee is liable to pay tax; or

(ii) if the trustee of the closely held trust is not the only person in the trustee group - the persons in the trustee group are jointly and severally liable to pay tax;

as imposed by the Taxation (Trustee Beneficiary Non-disclosure Tax) Act (No 1) 2007 , on the untaxed part; and

(b) except for the purposes of sections 99 , 99A and 99B and this Division, the untaxed part is not included in the assessable income of the trustee beneficiary under section 97 .

Note:

Provisions dealing with the payment etc of the tax under paragraph (a) (known as trustee beneficiary non-disclosure tax) are set out in Subdivision D .

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Amendment of incorrect statement

102UK(2A)

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If:

(a) during the TB statement period in relation to a year of income, the trustee of a closely held trust makes and gives to the Commissioner a statement, that the trustee believes on reasonable grounds is a correct TB statement, about a share of the net income of the trust; and

(b) the statement is not a correct TB statement about the share, with the result that, apart from this subsection, this section applies; and

(c) either:

(i) the trustee could not reasonably have foreseen the event that caused the statement not to be a correct TB statement; or

(ii) the statement is not a correct TB statement because of an inadvertent error; and

(d) either:

(i) before any trustee beneficiary non-disclosure tax becomes due and payable on the untaxed part as a result of this section applying; or

(ii) before the end of 4 years after any such tax becomes due and payable;

the trustee advises the Commissioner in writing of any change that is necessary to make the statement a correct TB statement about the share;

this section does not apply, and is taken never to have applied, to the untaxed part.

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History

S 102UK(1), (1A), (1B), (2) and (2A) substituted for s 102UK(1), (2) and (2A) by No 143 of 2007 , s 3 and Sch 4 item 19, applicable to the first income year starting on or after 24 September 2007 and later income years. S 102UK(2A) formerly read:

102UK(2A) Amendment of incorrect statement.
If:

(a) during the UB statement period in relation to a year of income, the trustee of a closely held trust makes and gives to the Commissioner a statement, that the trustee believes on reasonable grounds is a correct UB statement, about the whole or part of a share of the net income of the closely held trust; and

(b) the statement is not a correct UB statement about some or all (the amount subject to the error ) of the whole or the part of the share, with the result that, apart from this subsection, this section applies; and

(c) the trustee could not reasonably have foreseen the event that caused the statement not to be a correct UB statement; and

(d) either:

(i) before any ultimate beneficiary non-disclosure tax becomes due and payable on the amount subject to the error as a result of this section applying; or

(ii) before the end of 4 years after any such tax becomes due and payable;
the trustee advises the Commissioner in writing of any change that is necessary to make the statement a correct UB statement about the whole or part of the amount subject to the error;
this section does not apply, and is taken never to have applied, to the whole or the part of the amount subject to the error.

S 102UK(2A) inserted by No 43 of 2000.

102UK(3) Trustee group.

The trustee group consists of the following:

(a) the trustee of the closely held trust;

(b) if the trustee of the closely held trust is a company - the directors of the company.

[ CCH Note: No 143 of 2007 , s 3 and Sch 4 item 52, contains the following transitional provision:

Transitional

(1)
This item applies in relation to income years starting on or after 1 July 2006 and before the first income year to which the amendments apply.
[ CCH Note: The amendments apply to the first income year starting on or after 24 September 2007 and later income years.]

(2)
The trustee of a closely held trust is not liable to pay tax under section 102UK or 102UM of the Income Tax Assessment Act 1936 in respect of a share of the net income of the trust to the extent to which:

(a) the trustee of the closely held trust is assessed and liable to pay tax under subsection 98(4) of that Act in respect of the share; or

(b) the share 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 liable to pay tax under that subsection; or

(c) the share is represented by or reasonably attributable to an amount from which an entity was required to withhold an amount under Subdivision 12-H in Schedule 1 to the Taxation Administration Act 1953 ; or

(d) the share is represented by or reasonably attributable to an amount which was liable to tax under section 255 of the Income Tax Assessment Act 1936 .

]

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