Tax Laws Amendment (2007 Measures No. 3) Act 2007 (79 of 2007)

Schedule 9   Non-resident trustee beneficiaries

Income Tax Rates Act 1986

32   Transitional provision - managed investment trusts

(1) This item applies in relation to the following income years:

(a) the first income year starting on or after 1 July 2006;

(b) the income year immediately prior to the first income year starting on or after the first 1 July after the day on which this Act receives the Royal Assent;

(c) each intervening income year (if any).

(2) In this item, expressions mean the same as in the Income Tax Assessment Act 1997.

(3) Subsection 98(4) of the Income Tax Assessment Act 1936, as inserted by item 1 of this Schedule, does not apply in relation to a trustee of a trust in relation to an income year to which this item applies if the conditions in subitems (4) to (6) are satisfied for the trust for the income year.

(4) The trust must be a resident trust estate for the purposes of Division 6 of Part III of the Income Tax Assessment Act 1936 for the income year.

(5) At each of the times in the income year mentioned in subitem (9), the trust must be a managed investment scheme (as defined by section 9 of the Corporations Act 2001) and be operated by a financial services licensee (as defined by section 761A of that Act) whose licence covers operating such a managed investment scheme.

(6) At each of the times in the income year mentioned in subitem (9), one of the following must be satisfied:

(a) units in the trust must be listed for quotation in the official list of an approved stock exchange in Australia;

(b) the trust must have at least 50 members (ignoring objects of a trust);

(c) one of the entities covered by subitem (7) must be a member of the trust.

(7) These are the entities:

(a) a life insurance company;

(b) a complying superannuation fund, a complying approved deposit fund or a foreign superannuation fund, being a fund that has at least 50 members;

(c) a trust that satisfies the conditions in subitems (4) and (5) and also satisfies the condition in paragraph (a) or (b) of subitem (6);

(d) an entity that is recognised, under a foreign law relating to corporate regulation, as an entity with a similar status to a managed investment scheme and that has at least 50 members;

(e) a trust:

(i) interests in which are owned directly by an entity covered by an earlier paragraph; or

(ii) interests in which are held indirectly by an entity covered by an earlier paragraph through a *chain of trusts;

where the conditions in subitems (4) and (5) are satisfied for the trust, or for each trust in the chain.

(8) The condition in subitem (6) is not satisfied for a trust at a time if, at that time, one foreign resident individual, directly or indirectly:

(a) held, or had the right to acquire, interests representing 10% or more of the value of the interests in the trust; or

(b) had the control of, or the ability to control, 10% or more of the rights attaching to membership interests in the trust; or

(c) had the right to receive 10% or more of any distribution of income that the trustee may make.

(9) The times in an income year are:

(a) for a trust that was in existence throughout the income year - the first day and the last day of the income year; and

(b) for a trust that comes into existence in the income year - the time that is 1 month after the time the trust comes into existence, and the last day of the income year; and

(c) for a trust that ceases to exist in the income year - the first day of the income year and the time that is 1 month before the time the trust ceases to exist.