Foreign income return form guide 2010

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Chapter 2: Transferor trust and related measures

This chapter:

• helps Australian residents who have transferred, or are deemed to have transferred, property or services to a non-resident trust estate to:
  • determine whether, under the transferor trust measures, any income or capital gains derived by the trust estate should be attributed to them for inclusion in their assessable income
  • work out the amount to be attributed
• helps Australian beneficiaries who have received a distribution from a non-resident trust estate to determine whether an interest charge applies to the distribution.

Introduction

Under the transferor trust measures, residents of Australia who have transferred property (including money) or services to a non-resident trust estate, are subject to accruals taxation on certain profits derived by the trust. The reference to transfer of property or services to a trust includes the transfer of property or services by way of creation of a trust.

Related measures also operate to impose an interest charge on certain trust distributions from non-resident trusts that are included in the assessable income of a resident beneficiary. Broadly, the interest charge applies if the profits of the trust from which the distribution was made were not subject to tax:

• in a listed country, or
• because of attribution under the transferor trust provisions.

See the glossary at the start of this guide to find the meaning of certain words and expressions used in this chapter.

Part 1	Are you subject to the transferor trust measures?
Part 2	Interest charge for beneficiaries of non-resident trust estates.

Part 1: Are you subject to the transferor trust measures?

This part helps you determine whether you are subject to the transferor trust measures. It also shows how to work out the amount to include in your assessable income if the measures do apply.

Section 1	Are you a transferor in relation to a non-resident trust estate?
Section 2	Are you subject to the transferor trust measures?
Section 3	What amount do you have to include in your assessable income? Subsection 1 : Working out your assessable income where information is available from the trust Subsection 2 : Working out your assessable income where you do not have sufficient information to work out attributable income Subsection 3 : What happens if there is more than one transferor?

S ection 1: Are you a transferor in relation to a non-resident trust estate?

Transfers of property or services

If you have transferred property or services to a non-resident trust estate, the profits of the trust may be attributed to you - that is, the profits may be included in your assessable income even though you have not received a distribution from the trust.

You will be regarded as a transferor if you:

• have at any time transferred property or services to a non-resident discretionary trust estate, or
• transferred property or services after 7.30pm on 12   April 1989 to a non-resident trust estate that is non-discretionary for either no consideration or for consideration less than an arm's length amount.

Deemed transfers

Certain transfers of property or services made to another entity may be deemed to have been made to a trust estate if the transfer is connected with a transfer to the trust estate.

Example 1

Deemed transfer to a trust estate

Entity A transfers property to Entity B on condition that Entity   B transfers the property to a trust estate. In this case, Entity   A would be deemed to have transferred to the trust estate the property transferred by Entity   B.

Example 2

Marketing of units in a unit trust

The trustee of a unit trust issues units to Entity A, which acts as manager, underwriter or dealer for the placement of the units. Entity A transfers property or services to the trust for the purpose of acquiring the units. Entity   A then disposes of the units to Entity   B, which transfers property or services to Entity   A as consideration for the acquisition of the units.

In this case, Entity B is deemed to have transferred the property or services that Entity   A originally transferred to the unit trust. In the circumstances, Entity   A will not be taken to have transferred property or services to the trust estate.

Where a partnership has transferred property or services to a non-resident trust estate, each partner is deemed to have transferred property or services in proportion to their interest in the partnership.

Where a trust estate, being a discretionary trust that is an Australian trust or a controlled foreign trust, has transferred property or services to a non-resident trust estate, each person who has transferred property or services to the first-mentioned trust estate is deemed to have transferred property or services to the second-mentioned trust estate.

If the partnership or trust estate is in existence at the end of the non-resident trust estate's year of income, any attributable income of the non-resident trust estate is attributed to the partnership or trust estate. If the partnership or trust estate is not in existence at the end of the non-resident trust estate's year of income, any attributable income of the non-resident trust estate is attributed to the partners of the partnership or the original transferors to the trust estate.

The ATO may also treat you as having transferred property or services to a trust if you benefited from a transfer by a company, partnership or trust that ceases to exist.

If you need further information on deemed transfers, contact the ATO.

S ection 2: Are you subject to the transferor trust measures?

The amount to be included in the assessable income of a resident transferor for profits derived by a non-resident trust estate is called 'attributable income' and the resident transferor to whom it is attributed is called an 'attributable taxpayer'.

Exemptions from the transferor trust measures

A number of exemptions are provided from the transferor trust measures. These exemptions depend on the type of trust estate to which you have transferred property or services.

Public unit trusts

The transferor trust measures do not apply to a transfer of property or services to a non-resident trust estate if:

• the trust estate is a public unit trust at all times during the transferor's year of income,
• the transfer was made for arm's length consideration, or
• the sole purpose of the transfer was the arm's length acquisition of units in the unit trust.

A unit trust will be a public unit trust if, at any time during the income year, any of the units were listed on a stock exchange in Australia or elsewhere or were offered to the public. A unit trust will also be a public unit trust if, at all times during the income year, the units in the unit trust were held by 50 or more individuals.

The transferor trust measures will apply to you if you make a transfer of property or services to a non-resident public unit trust on or after 12   April 1989 for less than an arm's length consideration.

Deceased estates

The transferor trust measures generally do not apply to a trustee of a deceased estate who transfers property or services to a non-resident trust estate according to directions contained in the deceased person's will or codicil, or according to a court order which varies the will or codicil. The measures will apply, however, if:

• the transfer is made through the exercise of the power of appointment or of a discretion by the trustee or any other person - for example, where the trustee of a deceased estate has a discretion to invest money of the trust estate and decides to transfer the money to a discretionary trust estate, or
  
   
• the trustee transfers property or services to a non-resident trust estate but the transfer was caused by another entity - other than a deceased person - in which case, the entity that caused the transfer is treated as a transferor, or
  
   
• under a scheme, the trustee transfers property or services to an entity, and another entity transfers property or services to a trust. In this case, the trustee is treated as having transferred the property or services to the trust.

Non-resident family trusts

The transferor trust measures do not apply to an individual who has transferred property or services to a non-resident family trust. However, the trust must be a non-resident family trust at all times when it is in existence after the beginning of the transferor's 1990-91 income year until the end of the current income year - that is, the income year for which the transferor is working out assessable income.

An exemption from the transferor trust measures is also available to an individual who:

• first becomes an Australian resident after 12   April 1989
• makes a transfer to a non-resident family trust before taking up residency in Australia.

To qualify, the trust estate must be a non-resident family trust at all times after the transferor becomes a resident of Australia.

The exception does not apply to an individual who, as trustee, transferred any property or services to the non-resident family trust from any other trust estate.

Two types of non-resident family trusts are covered by this exception - post-marital family trusts and family relief trusts.

Post-marital family trusts

Post-marital family trusts come into existence after a decree or order of dissolution or annulment of a marriage or a decree or order of judicial separation or similar instrument. Trusts resulting from the breakdown of a de facto marriage also qualify. The beneficiaries of the trust estate must be non-resident individuals and:

• the spouse or former spouse of the individual, or
• a child of the individual or the individual's spouse, or
• a child of the individual's former spouse during the marriage.

Family relief trusts

Family relief trusts are established and operated to help non-resident family members. Trusts with Australian or non-family beneficiaries do not qualify as family trusts. The only beneficiaries permitted are non-residents who are related to the transferor. The following persons are treated as related to the transferor for this purpose:

• a spouse or former spouse
• a parent of the transferor or of the transferor's spouse or former spouse
• a child of the transferor or of the transferor's spouse or former spouse
• a grandparent of the transferor
• a grandchild of the transferor
• a brother or sister of the transferor or of the transferor's spouse or former spouse
• a child of the transferor's brother or sister
• a child of a brother or sister of the transferor's spouse or former spouse.

A trust estate will generally not qualify as a family trust if the assets of the trust are excessive given the requirements of the beneficiaries. The exception to this rule is if there have been no transfers of property or services to the trust after 12   April 1989. In this case the trust can have excessive assets and still qualify as a family trust.

Contingent beneficiaries

A trust estate can still be a family trust estate if, in the event of the death of a family member, one or more individuals benefit or are capable of benefiting under the trust. These persons must, however, be:

• non-residents, and
• children of the deceased family member.

If all beneficiaries die, the trust estate can still be a family trust estate if there are one or more funds, authorities or institutions covered by an item in the tables in Subdivision   30-B of the ITAA   1997 or item   2 of the table in section   30-15 of the ITAA 1997 - the gift provisions - that would benefit or be capable of benefiting under the trust.

Migrant transferors

An individual who first became an Australian resident after 12   April 1989 will not be subject to the transferor trust measures if they transferred property or services to a non-resident trust estate before becoming a resident and they were not in a position to control the trust estate.

Discretionary trust estates

The transferor trust measures do not apply to a transferor who has transferred property or services to a discretionary trust estate if both of the following conditions are satisfied:

• the transfer was made in the course of carrying on a business, and
• the transfer was made in terms identical or similar to those that relate to transactions undertaken by the transferor, at or about the time of the transfer, in the ordinary course of business with ordinary clients or customers - that is, on an arm's length basis and subject to similar terms and conditions.

If the transfer was not made on an arm's length basis in the course of carrying on a business, the transferor trust measures will normally apply if at any time after the transfer the transferor or the transferor's associates were in a position to control the trust estate. However, if the transfer was made before 12   April 1989, the transferor trust measures will only apply if the transferor or the transferor's associates were in a position to control the trust after 12   April 1989.

If a transferor subsequently gains control of the discretionary trust estate, all years before the commencement of the transferor trust measures become subject to the measures.

A transferor is taken to be in a position to control a non-resident trust estate if the transferor or any associates:

• have power, by whatever means, to obtain the beneficial enjoyment of the corpus or income of the trust estate
• were able to control, directly or indirectly, the application of the income or corpus of the trust estate
• were capable, under a scheme, of gaining the enjoyment or control referred to in the above two points
• could expect the trustee to follow their directions, instructions or wishes, or
• have the ability to remove or appoint any trustees of the trust estate.

All factors must be taken into account in determining whether the trustee of a trust estate was accustomed, or might reasonably be expected, to follow directions, instructions or wishes of a transferor or an associate of the transferor.

For example, a requirement in a trust deed for the trustee to ignore directions, instructions or wishes would not pre-empt the examination of the actual circumstances to determine whether the transferor or an associate controls the trustee. The way in which the trustee has acted in the past, the relationship between the transferor or transferor's associate and the trustee and the amount of property or services transferred to the trust estate, are some of the other matters that need to be considered.

Non-discretionary trust estates

The transferor trust measures will not apply to a transferor who transferred property or services to a non-discretionary trust estate before 12   April 1989. Moreover, the measures will not apply to a transfer of property or services after 12   April 1989 if:

• the trust estate was a non-discretionary trust estate at all times during the transferor's current year of income, and
• the transfer was made for an arm's length consideration.

If:

• one transferor - the original transferor - makes transfers of property or services to a non-resident non-discretionary trust estate which were all made for consideration at an arm's length amount, and
• another transferor - the second transferor - makes a transfer of property or services to the same non-resident trust estate on or after 12   April 1989 which is made for no consideration or consideration at less than an arm's length amount

the second transferor - but not the original transferor - would become an attributable taxpayer in relation to the trust estate. Therefore, all the attributable income of the trust estate would be attributed to the second transferor.

S ection 3: What amount do you have to include in your assessable income?

This section is relevant only if you are an attributable taxpayer in relation to a non-resident trust estate.

You must follow the steps in subsection 1 to work out your attributable income if you can obtain the necessary information.

If you cannot reasonably be expected to have access to the necessary information, work out the amount to be included in your assessable income following the steps in subsection   2 .

Once you have worked out the amount to include in your assessable income, you may be able to apply for a reduction of this amount. Subsection   3 explains how to do this.

Subsection 1: Working out your assessable income where information is available

Working out the attributable income of a non-resident trust estate

To determine the attributable income of a non-resident trust estate you must first work out its net income. The net income of a trust estate is worked out as though the trust estate were an Australian resident and taxpayer.

In working out the net income of a non-resident trust estate, you need to identify whether it is a listed country trust estate.

If it is a listed country trust estate, only the trust's eligible designated concession income and foreign investment fund income are taken into account when working out the net income. The balance of the income of the trust estate is treated as exempt income.

If it is an unlisted country trust estate, all its income or gains are included in working out its net income.

A non-resident trust estate is treated as a listed country trust estate if all the income of the trust estate - other than eligible designated concession income - is either subject to tax in a listed country or is assessable in Australia in the hands of the trustee or a beneficiary.

Amounts that may be excluded from attributable income

In determining the attributable amount, the net income of a non-resident trust estate is reduced by the following amounts to the extent they relate to amounts included in the net income of the trust estate:

• amounts that have been included in the assessable income of a beneficiary under section   97 of the Act - that is, amounts to which a beneficiary is presently entitled
• amounts where the trustee of the non-resident trust estate has been assessed and is liable to pay tax under section   98 of the Act - for example, on behalf of a resident beneficiary under a legal disability
• amounts where the trustee of the non-resident trust estate has been assessed and is liable to pay tax under section   99 or 99A - for example, where the trust has undistributed Australian source income
• amounts paid to beneficiaries who are residents of a listed country if those amounts are paid during the non-resident trust estate's income year or within one month after the end of the income year. These amounts must be subject to tax in a listed country in a tax accounting period ending before the income year or commencing during the income year
• franked dividends - that is, dividends paid by Australian companies or similar amounts paid by corporate unit trusts and public trading trusts, out of profits that have been subject to Australian tax
• amounts included in the assessable income of the trustee of a trust estate where a dividend is grossed up for dividend imputation purposes  
• amounts received by a trustee from another trust estate to the extent that the amount has already been attributed to a transferor
• amounts received by the trustee that are referable to the income or profits of a CFC that have been included in the assessable income of any resident taxpayer under the CFC measures
• income or profits of the trust estate - other than eligible designated concession income - that are subject to tax in any listed country in a tax accounting period ending before the end of, or commencing during, the non-resident trust estate's income year
• FIF income attributed to the trust estate for a notional accounting period of a company FIF if a share of the attributable income of the company FIF is included in your assessable income under the CFC measures for:
  • a statutory accounting period coinciding with the notional accounting period of the company FIF, or
  • statutory accounting periods ending and commencing during the notional accounting period of the company FIF
• amounts of foreign tax or Australian tax paid by the trustee or a beneficiary on amounts included in the attributable income of the trust estate.

For a listed country trust estate, exclude only the amounts that relate to the part of the net income that consists of eligible designated concession income.

Modifications made to Australian tax law

Rules that do not apply in working out the attributable income of a trust estate

The following rules do not apply in working out the attributable income of a trust estate:

• the exemption for distributions from profits that have been taxed under the CFC measures
• the exemption for amounts that have been subject to withholding tax in Australia
• the CFC measures, and
• conduit foreign income.

Conversion of income and expenses to Australian dollars

When calculating attributable income you must convert all amounts into Australian currency. This conversion is done using the conversion rules under the usual operation of the Act. For more information see the fact sheet Foreign exchange (forex): the general translation rule .

Choice to use functional currency

The transferor trust may choose to have its attributable income calculated in the sole or predominant currency in which it keeps its accounts (ledgers, journals, statements of financial performance, etc). This sole or predominant currency is called the 'applicable functional currency'.

When calculating attributable income in functional currency, all amounts that are not in the applicable functional currency (including Australian currency amounts) must be converted into the applicable functional currency. This conversion is done using the conversion rules under the usual operation of the Act. However, when applying these rules, the applicable functional currency is taken not to be foreign currency and all other amounts (including Australian currency amounts) are taken to be foreign currency.

Once the attributable income is calculated, it is converted into Australian currency in accordance with the relevant conversion rules.

The choice of applicable functional currency must be in writing but the transferor trust is not required to notify the Commissioner. The transferor trust must keep written evidence of the choice for as long as it is required to keep its tax records.

Generally, the choice will apply to the income year immediately following the one in which the choice is made. However, it will apply to the income year in which the choice is made where the choice is made within 90   days of the beginning of that income year.

The choice to use the applicable functional currency applies until you withdraw it. You can only withdraw a choice where the functional currency has ceased to be the sole or predominant currency in which the trust keeps its accounts. The withdrawal has effect from immediately after the end of the income year in which the choice is withdrawn. The withdrawal must be in writing and retained with your tax records. You may make a new choice applicable to subsequent income years.

Modified application of trading stock provisions

All items of trading stock are to be valued at cost when brought to account by a non-resident trust estate.

Modified application of depreciation provisions

A non-resident trust estate is allowed depreciation on the same basis as a resident taxpayer. However, assets are treated as having been held for the production of assessable income in income years where there was no calculation of attributable income.

Where the trustee has used a property during an income year partly for producing exempt income and partly for producing assessable income, the ATO can determine the amount that is an allowable deduction.

Modified application of the transfer pricing rules

The ATO can make adjustments reflecting arm's length values to amounts used in working out the attributable income of a trust estate. To avoid double taxation, the ATO can make a corresponding adjustment to an amount in determining the taxable income of another taxpayer.

Modifications relating to capital gains tax

The capital gains tax provisions of the Act - that is, Parts 3-1 and 3-3 of the Income Tax Assessment Act 1997 - apply as if the non-resident trust estate were a resident trust for CGT purposes. This ensures that a capital gain on the disposal of a CGT asset which is not taxable Australian property is taken into account under the transferor trust measures. It also ensures that the pre-20   September 1985 status of assets is retained.

Special rules apply to prevent double taxation of capital gains where a trust estate was formerly a resident of Australia. In this case, the cost base of assets that were taxed under the capital gains tax provisions at the residence change time is taken to be the market value of the assets at that time.

Modification of loss provisions

Losses are not available for income years before the year starting 1   July 1990.

De minimis exemption

The de minimis exemption ensures that the transferor trust measures do not apply to small amounts derived by a trust estate in a listed country.

The de minimis exemption is worked out having regard to the total of the attributable incomes of all trust estates for which a taxpayer is an attributable taxpayer. The de minimis exemption will be satisfied if the total of the attributable incomes of all the trust estates is equal to or less than the lesser of:

• $20,000, or
• 10% of the total of the net incomes of those trust estates.

If these tests are satisfied, the attributable income of listed country trust estates will not be included in the assessable income of the attributable taxpayer. The attributable income from unlisted country trust estates would still be included.

Working out the amount of attributable income to include in your assessable income

If you are an attributable taxpayer in relation to a non-resident trust estate, all the attributable income of the non-resident trust estate for an income year coinciding with your income year is included in your assessable income.

If there is more than one attributable taxpayer, the ATO may allow a reduction of the amount of attributable income to be included in the assessable income of each attributable taxpayer. To obtain the reduction, the taxpayer must apply to the ATO - see subsection   3 for more information.

Resident for part of a year

If you are a resident for only part of the income year, the attributable income included in your assessable income is reduced. The amount included is worked out as follows:

Notional attributable income

x

the number of days during the period that you were a resident total number of days in the period

Example 3

Part-year residency

George is a resident of Australia for 200   days out of the 365   days in the relevant year of income. He is an attributable taxpayer in relation to YZ   trust that was a non-resident trust with the same income year. The attributable income of the trust estate was $40,000.

The amount George is required to include in assessable income for that year of income is:

$40,000 x (200/365) = $21,917

Overlapping years of income

If you are an attributable taxpayer and your income year is different from that of a non-resident trust estate, the trust estate's attributable income for the two income years which overlap your income year is apportioned using the number of days that fall within your current income year.

Example 4

Overlapping years of income

Helen's current income year is 1   July 2006 to 30   June 2007. She is an attributable taxpayer in relation to XY   trust estate. The trust estate's income years are 1   January 2006 to 31   December 2006 and 1   January 2007 to 31   December 2007. The attributable income of the trust estate is $30,000 for the 2006 income year and $40,000 for the 2007 income year.

The amount worked out for the trust estate's 2006 income year is:

$30,000 x (184/365) = $15,123

For the trust estate's 2007 income year, the amount is:

$40,000 x (181/365) = $19,835

Helen adds the amounts to give a total attributable income of $34,958 for her 2006-07 income year.

Partnerships and trusts

The attributable income from a trust estate is included in working out the net income of a partnership or a trust estate and is treated as having a foreign source.

Where a partner of a partnership or a beneficiary of a trust estate is an Australian resident for the whole income year, they are to include in their assessable income their share of the net income - including attributable income - of the partnership or trust estate.

Where a partner or beneficiary is a non-resident of Australia at all times during an income year, they would not include any attributable income of the partnership or trust estate in their assessable income.

Subsection 2: Working out your assessable income where you do not have sufficient information to work out attributable income

If you are unable to obtain the information necessary to work out the attributable income of a trust estate, you must include an amount worked out using the following formula in your assessable income.

The formula is to be used for each transfer of property or services you made to the trust estate that is subject to the transferor trust measures.

Work out the amount to include in your assessable income by applying the deemed rate of return to the market value of the property or services you transferred to the trust estate. The market value is adjusted for this calculation to reflect deemed returns for previous periods.

The deemed rate of return applicable to assessments for the income year commencing 1   July 2009 is 5% above the rate of interest that applies for that period under subsection   8AAD(2) of the Taxation Administration Act 1953 . If there are two or more rates of interest for 2009-10, you use the weighted average of these rates for the income year.

Use the following formulas to determine the amount to include in your assessable income for transfers of property or services after 12   April 1989.

Transfers made after 12   April 1989

Amount to be included in assessable income

=

Adjusted value of the transfer

x

Weighted statutory interest rate plus 5%

The adjusted value for transfers made during the current income year is worked out as follows.

Adjusted value of the transfer

=

Market value, immediately before the transfer of property or services of the transferred property or services

x

Days after the transfer to the end of the income year days in income year

Example 5

Transfer during current income year

An attributable taxpayer transferred property worth $30,000 to a non-resident trust estate on 31   May 2008. There are 30   days between the transfer on 31   May and the end of the year - 30   June 2008.

The adjusted value is worked out as follows:

$30,000 x (30/365) = $2,465

If the transfer occurred before the taxpayer's current income year, the adjusted value of the transfer is the total of:

• the market value, immediately before the transfer, of the property or services transferred, and
• the total of the amounts that would have been included in the transferor's assessable income for that transfer in the income years preceding the taxpayer's current income year, if this method had been used in those years.

Where more than one transfer was made after 12   April 1989, the formula is applied separately to each transfer and then the relevant amounts are added together.

Transfers made before 12   April 1989

Use the following formula to determine the amount to include in your assessable income for transfers of property or services before 12   April 1989.

Amount to be included in assessable income

=

Adjusted net worth of the trust estate

x

Weighted statutory interest rate plus 5%

The adjusted net worth of a trust estate is its net worth adjusted for the deemed return on the property or services transferred before 12   April 1989.

The net worth of the trust estate is determined on 1   July 1990. Its net worth on that date is the market value of its assets at 1   July 1990, reduced by its liabilities on 1   July 1990.

To determine the adjusted net worth, the net worth is increased by the total of amounts that would be worked out in each previous income year commencing on or after 1   July 1990 using the above formula.

When using the formula method to work out the amount to include in your assessable income, if two or more taxpayers have transferred property or services to the trust estate, the ATO is empowered to provide relief along lines similar to those referred to in sub sect ion   3 below.

Subsection 3: What happens if there is more than one transferor?

The assessable income of a transferor in relation to a non-resident trust estate will include the part of the attributable income of the trust estate relating to the period that the transferor was a resident of Australia. This can have the effect of subjecting more than one person to tax for the same income.

The ATO can reduce the amount included in your assessable income if there is more than one transferor. When determining the amount of the reduction, the ATO takes into account the amount of attributable income of the trust estate that relates to the property or services transferred to the trust estate and to any other matters that are considered relevant. You will need to apply to the ATO for the reduction.

Part 2: Interest charge for beneficiaries of non-resident trust estates

This part explains how distributions received by Australian residents from non-resident trusts are taxed under section   99B of the Act. It also explains when an interest charge will be payable on these distributions.

Section 1	Have you received an assessable distribution from a non-resident trust estate?
Section 2	Do you have to pay an interest charge?

S ection 1: Have you received an assessable distribution from a non-resident trust estate?

This section explains the tax treatment under section   99B of distributions made by a non-resident trust estate - whether or not the distribution was made out of income or gains which have previously been attributed to an attributable taxpayer.

Is the distribution assessable?

Under section 99B, distributions made by a non-resident trust estate to Australian resident beneficiaries are assessable in the hands of the beneficiaries, except in the following cases:

1.	the distribution is capital of the trust estate - an amount derived by the trust estate which would have been subject to tax if it had been derived by a resident taxpayer will not be taken to represent capital
2.	the distribution is an amount that has been taxed or is liable to tax in the hands of the beneficiary under section 97 or in the hands of the trustee under sections 98, 99 or 99A
3.	the distribution is an amount that is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of that other trust is assessed and liable to pay tax under subsection   98(4)
4.	an amount that is non-assessable non-exempt income of the beneficiary as conduit foreign income under section 802-17 of the ITAA 1997
5.	the distribution paid to or applied for the benefit of a resident taxpayer - other than a company not acting in the capacity as a trustee - represents an amount of attributable income of a non-resident trust estate that has previously been included in the assessable income of any taxpayer
6.	the distribution paid or applied for the benefit of a company represents an amount of attributable income of a non-resident trust estate that has previously been included in the assessable income of that same company. This exemption applies where the company is acting as a beneficiary, not as a trustee
7.	the distribution is from any amount that would not have been assessable income in the hands of a resident taxpayer - for example, exempt income or non-assessable non-exempt income. This would include an amount that, if it had been derived by a resident taxpayer, would have been not assessable under section   23AH.

Section 2: Do you have to pay an interest charge?

If you are an Australian resident beneficiary of a non-resident trust estate and section   99B includes a distribution of accumulated income from the non-resident trust estate in your assessable income, you may be liable to pay additional tax in the nature of an interest charge on the distribution.

The interest charge does not apply if the amount included in your assessable income was paid from profits that have previously been taxed on an accruals basis under the transferor trust measures.

The charge is also not applicable for distributions from a public unit trust unless it is a controlled foreign trust.

The interest charge may apply to a distribution of profits from a non-resident trust estate to the extent the distribution was made from profits that:

• are referable to eligible designated concession income derived in an income year when the trust was a resident of a listed country, or
• were not subject to tax in a listed country and were derived in an income year when the trust was a resident of an unlisted country.

Working out the amount of the interest charge

The amount on which interest is payable is worked out using the following formula:

Amount on which interest is payable

=

(distributed amount x applicable rate of tax)

_

foreign income tax offset

Distributed amount

The distributed amount is the amount of the distribution that is included in your assessable income under section   99B. This amount is grossed up for any foreign tax you can claim on that share.

Applicable rate of tax

The applicable rate of tax for a company is the general rate of Australian tax imposed on companies for the income year in which the company receives a trust distribution. The general rate will apply irrespective of the actual rate of tax applicable to the company.

For a taxpayer other than a company, the applicable rate of tax is the maximum marginal rate that applies for the income year of the taxpayer in which the trust distribution is received. The maximum rate would apply irrespective of the actual marginal rate of tax applicable to the taxpayer.

Foreign income tax offset

The foreign income tax offset is the amount you can claim for foreign income tax paid on an amount included in your assessable income for the distribution made by the non-resident trust.

Example 6

Unlisted country trust estate

During the 2008-09 income year, a resident individual received a distribution of $10,000 from an unlisted country trust estate. The entire amount was included in the taxpayer's assessable income under section   99B. The distribution was paid from $20,000 foreign income derived by the trust in the 1998-99 income year. The income was not subject to tax in a listed country and the trust paid foreign tax of $5,000.

Interest is payable on the distributed amount of $10,000 grossed up by the amount of foreign tax relating to the distributed amount - $3,333 - multiplied by the applicable rate of tax - 45% - less the amount of foreign tax credit.

($13,333 x 45%) - $3,333 = $2,666

Note: The foreign income tax offset is worked out by allocating, on a pro rata basis, the foreign tax paid by the trust estate on its foreign income. The profits and income of the trust estate that were available for distribution were:

$20,000 - $5,000		$15,000
Amount of the distribution		$10,000
Foreign tax attributable to the distribution =	$10,000   x   $5,000 15,000	$3,333

Period over which the interest charge accrues

The interest charge accrues as follows:

• where the trust distribution is paid out of trust income or profits accumulated before 1990-91, the charge will accrue from the start of the beneficiary's 1990-91 income year
• where the trust distribution is paid out of trust income accumulated by the non-resident trust estate in the 1990-91 or a subsequent income year, the charge will accrue from the start of the beneficiary's next income year - that is, the income year first following the income year of the trust estate for which the income would have been included in the assessable income of the trust if the trust had been a resident trust estate.

The interest charge will cease to accrue on the last day of the income year in which the distributed amount is included in the assessable income of the beneficiary.

What interest rate applies?

The rate of interest that applies from 14 September 2006 is the applicable rate under section   8AAD of the Taxation Administration Act 1953 . The applicable rate of interest prior to 14 September 2006 is:

• from 1 July 1999 until 14 September 2006 the rate applying under section 214A of the ITAA 1936
• from 1 July 1994 until 30 June 1999 the rate applying under section 214A of the ITAA 1936 less four (4) percentage points
• before 1 July 1994 the rate applying under section 10 of the Taxation (Interest on overpayments) Act 1983 .

ATO references:
NO NAT 1840