In the final determination TD 2011/21, the ATO has confirmed its position that:
- The trustee must conduct a "wide survey and exact scrutiny of all of the relevant factors" to determine whether the trustee's activities constitute a business or profit making scheme.
- The gain or loss may be on revenue account for tax purposes if no provision of the income tax law specifically treats it as being on capital account.
- The mere fact that a gain or loss from an investment is made by an entity in its capacity as trustee of a trust is not conclusive as to whether the gain or loss is on revenue or capital account for tax purposes.
Set out in the table below is a summary of submissions the ATO received in the consultation period, and the ATO's response to the submissions.
A ClearLaw article on the draft ruling in April 2011 discussed the draft determination in detail and the relevant factors to consider in characterising whether the gain or loss has been made on revenue or capital account. You can read the article here.
Gain or loss on revenue account
The ATO consider that a gain or loss is likely to be on revenue account if the gain or loss was from any one of the following:
- a normal operation in the course of carrying on a business of investment;
- an extraordinary operation by reference to the ordinary course of that business but one entered into with the intention of making a profit or gain; or
- a one off, or isolated, transaction where the investment was acquired in a business operation or commercial transaction for the purpose of profit making.
The ATO considers that although circumstances may point towards a capital account characterization, each case must involve an assessment of all relevant facts and circumstances.
For example, gains or losses from an investment may point towards a capital account characterisation if:
- a trust is established to provide for the family and for the retirement of the husband and wife; and
- the trustee's duties are to preserve the real value of the capital of the trust.
However, the ATO points out that one purpose of the trust in these circumstances is to provide for the needs of the family and that:
- this might be best achieved through buying and selling investments at a profit;
- the nature and extent of the trustee's trading activities would need to be considered when characterising any gain or loss;
- an assessment of all the facts may suggest that selling the investment is a normal operation in the course of carrying on a business of investment; and
- any gain will be income according to ordinary concepts and any loss will be deductible.
Below is a summary of some of the issues raised in the consultation process to the draft determination TD 2011/D1 and how the ATO clarified their views in the final determination:
ATO Response/Action taken
The preservation of the real value of the capital of a trust is a key factor for most (if not all) trustees. Therefore a presumption arises that the actions of a trustee which gives rise to income are caused by the trustee discharging their fiduciary obligations to maintain the capital. So there is an assumption that any gain made by a trustee will be on capital account.
Noted but not accepted. Case law establishes that each case will require an assessment of all relevant facts and circumstances to determine whether a gain or loss is on revenue or capital account.
In certain circumstances, although there may be factors that support the proposition that the investments are on capital account, the ATO may view that the gains or losses are on revenue account.
The Determination points out that:
In Example 1 in the draft determination, a trust is established to invest in listed securities and the trustee's investment policy is to invest in securities which display above-average earnings growth potential and therefore support the proposition that the investments are on capital account.
The ATO however, view that these factors support the conclusion that the gains and losses on the disposal of securities are in fact on revenue account.
In the example:
The ATO's view that any gains realised on securities together with interest and dividend income are on revenue account.
The ATO clarifies that:
Given that the trust was established to ensure a substantial annual return for unitholders in respect of share investments and the structure of the investments, a return of profits on share sales would have been contemplated.
The ATO considers that trustees need to consider why the variations have occurred and not simply focus on a generic turnover percentage. Recognising gains on securities at fair value is generally consistent with adopting appropriate accounting standards. Indeed, some unit trusts, particularly if they are managed investments, are required to do so.
In Example 4, a family trust is established by a husband and wife to have enough flexibility to provide for the family and ultimately for their retirement.
The trustee invested in securities which had a prospect of growing in value and over the years, the level of switching between stocks has generally been no more than 4 to 5% of the value of the trust's total portfolio. In the example, the ATO viewed that the nature of the trust and the trustee's duties do not point strongly to either a revenue or capital account characterisation.
During the consultation, comments were made that the following factors clearly pointed towards a capital account characterisation:
The ATO clarified that each case involves an assessment of all relevant facts and circumstances.
One purpose in establishing the trust in this example was to provide for the needs of the family. This might be best achieved through the buying and selling of investments at a profit. The nature and extent of the trustee's trading activities would need to be considered when characterising any gain or loss.
The draft determination noted that if a trust deed authorises the trustee to engage in business or undertake some profit making activity with a view to generating profits from which distributions to investors can be made, then that fact would lend support to a conclusion that the profits are made on revenue account.
During the consultation, comments were made that most trust deeds are likely to authorise a trustee to engage in a business. (The Cleardocs Discretionary trust deed does so.) The fact that a trustee is authorised to do something does not necessarily support a conclusion that the profits or losses made by the trust are on revenue account. To argue that is akin to arguing that any gain/loss made by an individual will be on revenue account because an individual is allowed to be a share trader. The issue must always be whether the individual/trustee is actually trading on revenue account.
The ATO noted the comment and amended the Determination. Its focus is now on a situation where, having regard to the purposes of the trust, it is clear that the trust exists with a view to generating profits from which distributions to investors can be made.
Date of effect
The Determination applies to years of income commencing before and after its date of issue.
More information from Maddocks
For more information, contact Maddocks on (03) 9288 0555 and ask to speak to a member of the Tax and Revenue or General Commercial Teams.
More Information from Cleardocs
For more information:
- about the Cleardocs:
- Discretionary Trust, see here. You can order a trust online from that page;
- Unit Trusts (fixed or non-fixed), see here. You can order a trust online from that page;
- Hybrid Trust, see here. You can order a trust online from that page.
- see a Guide by Maddocks dealing with:
- a comparison table of key benefits and things to be wary of in each type of trust, here; and
- a comparison table of the key features of each type of trust here.
- about Bamford's case, see here.