Trusts – Generally Discretionary from James Nott

By November 29, 2017 News

Many years ago someone said to me …”if you go to a conference and you learn one important facet then the conference was certainly a worthwhile event.”
I recently attended the 2017 Tax Institute “Tax Intensive Conference” and I think I did a little better than this…. on saying that I will outline just one important matter raised regarding Trusts.

Trusts were very rarely created for conducting a business (including primary production) until the 1970’s and 1980’s. They originated in the middle ages in the UK and of course have long existed for investment purposes in many countries.
Australia is one of a very few countries where trusts are permitted to carry on business.

Unlike a company, a Trust must have an end date (the vesting date), except those formed in South Australia, and generally have a life of around 80 years. This rule is to stop the testator effectively “ruling from the grave”. The important point to note is that many early trusts were settled with only a 30 or 40 year life. This means that many of the them are now coming to an end.

Some of them were pre-CGT trusts, (Capital Gains Tax) also some families kept the life of the Trust relatively short as it was thought that generation change should lead to the end of a Trust. As a Trust comes to an end, CGT has to be considered. CGT event E5 means that a capital gain may be made if a beneficiary becomes entitled to an asset and the market value is more than its cost base.

The speaker on this subject mentioned that many trusts are passing the vesting date, without anyone being aware of this important date. It may be possible to extend the vesting date, depending on whether the deed allows it. If it does, action must be taken before the vesting date shown in the deed. This is according to the ATO although the ruling is disputed by some lawyers.

Last point, READ THE DEED.