What happens when a trust appoints income to a private company beneficiary but does not actually make the payment?
The tax treatment of this unpaid amount was at the centre of a recent case before the Administrative Appeals Tribunal (AAT) that saw a taxpayer successfully challenge the ATO’s long held position (Bendel and Commissioner of Taxation [2023] AATA 3074). For many years, the ATO’s position has been that if a trust appoints income to a private company beneficiary but does not actually make the payment, this unpaid amount can be treated as a loan. Under Division 7A of the tax rules, these loans can be taxed as unfranked dividends unless they are managed using a complying loan agreement with annual principal and interest repayments.
This AAT decision challenges an important ATO position, with the tax outcomes being potentially significant for trust clients that currently owe (or may have owed in the past) unpaid trust entitlements to related private companies.
But this is not the end of this story. On 26 October 2023, the Tax Commissioner lodged a notice of appeal to the Federal Court. There is no guarantee that the Federal Court will reach the same conclusion as the AAT. We will need to wait and see.
As the case progresses, we will let you know about the impact.
For further information about trust distrubtions check out other Aspen Corp blog posts
https://www.aspencorp.com.au/the-atos-final-position-on-risky-trust-distributions
https://www.aspencorp.com.au/the-atos-attack-on-trusts-and-trust-distributions
https://www.aspencorp.com.au/ato-fires-warning-shot-on-trust-distributions
Thinking outside the box.
Our thinking doesn’t
just deliver value.
It saves you time.
It’s more than just reducing expenses or helping you improve profitability today. It's about fast tracking your success by taking the time to build a shared vision of your best future. Backed with dedicated and unparalleled team industry leading expertise, empowering you with the tools and guidance to make informed decisions, streamline your financial processes, raise the bar on what’s possible and help you achieve your business goals more efficiently.
The most valuable thing to our success is you. The most valuable thing to you is time.
Where knowledge meets
understanding in tax solutions.
With 35 years of experience, we know that a good business stems from the roots; from our people.
We offer a unique combination of taxation, accounting, financial and advisory services tailored to the individual requirements of your business.
The contents of this website should be read in conjunction with the Terms & Conditions and Privacy Policy.
LIABILITY LIMITED BY A SCHEME APPROVED UNDER PROFESSIONAL STANDARDS LEGISLATION
Liability Limited by a Scheme Approved under Professional Standards Legislation