The ATO’s Attack on Trusts and Trust Distributions
Late last month, the Australian Taxation Office (ATO) released a package of new guidance material that directly targets how trusts
distribute income. Many family groups will pay higher taxes (now and potentially retrospectively) as a result of the ATO’s more aggressive
Family trust beneficiaries at risk
The tax legislation contains an integrity rule, section 100A, which is aimed at situations where income of a trust is appointed in favour
of a beneficiary but the economic benefit of the distribution is provided to another individual or entity. If trust distributions are
caught by section 100A, then this generally results in the trustee being taxed at penalty rates rather than the beneficiary being taxed at
their own marginal tax rates.
The latest guidance suggests that the ATO will be looking to apply section 100A to some arrangements that are commonly used for tax planning
purposes by family groups. The result is a much smaller boundary on what is acceptable to the ATO which means that some family trusts
are at risk of higher tax liabilities and penalties.
ATO redrawing the boundaries of what is acceptable
Section 100A has been around since 1979 but to date, has rarely been invoked by the ATO except where there is obvious and deliberate trust
stripping at play. However, the ATO’s latest guidance suggests that the ATO is now willing to use section 100A to attack a wider range of
There are some important exceptions to section 100A, including where income is appointed to minor beneficiaries and where the arrangement is
part of an ordinary family or commercial dealing. Much of the ATO’s recent guidance focuses on whether arrangements form part of an ordinary
family or commercial dealing. The ATO notes that this exclusion won’t necessarily apply simply because arrangements are commonplace or they
involve members of a family group. For example, the ATO suggests that section 100A could apply to some situations where a child gifts money
that is attributable to a family trust distribution to their parents.
The ATO’s guidance sets out four ‘risk zones’ – referred to as the white, green, blue and red zones. The risk zone for a particular
arrangement will determine the ATO’s response:
We are happy to assist you in preparation of your Trust Distribution Resolution.