(ii) conferred or attached any special right or privilege, or done any act or thing, either alone or together with another person or persons, that has resulted in the conferring or attaching of any special right or privilege, on or to property of the trust estate whether or not the right or privilege has been exercised;
has not, at any time, directly or indirectly:
(iii) transferred or lent any property (including money) to, or conferred any benefits on, another trust estate; or
(iv) conferred or attached any special right or privilege, or done any act or thing, either alone or together with another person or persons, that has resulted in the conferring or attaching of any special right or privilege, on or to property of another trust estate, whether or not the right or privilege has been exercised;
the Commissioner shall have regard to that fact; and
(c) the Commissioner shall have regard to such other matters, if any, as he or she thinks fit.
(3A) For the purposes of the application of paragraph (3)(a) in relation to a trust estate of the kind referred to in paragraph (2)(a), a reference in that first‑mentioned paragraph to the trust estate shall be read as including a reference to the person as a result of whose death the trust estate arose.
(4) Where there is no part of the net income of a resident trust estate:
(a) that is included in the assessable income of a beneficiary of the trust estate in pursuance of section 97;
(b) in respect of which the trustee of the trust estate is assessed and liable to pay tax in pursuance of section 98; or
(c) that represents income to which a beneficiary is presently entitled that is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia;
the trustee shall be assessed and is liable to pay tax on the net income of the trust estate at the rate declared by the Parliament for the purposes of this section.
Note: If the trust estate’s net income includes a net capital gain, Subdivision 115‑C of the Income Tax Assessment Act 1997 affects the assessment of the trustee.
(4A) Where there is a part of the net income of a resident trust estate:
(a) that is not included in the assessable income of a beneficiary of the trust estate in pursuance of section 97;
(b) in respect of which the trustee is not assessed and is not liable to pay tax in pursuance of section 98; and
(c) that does not represent income to which a beneficiary is presently entitled that is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia;
the trustee shall be assessed and is liable to pay tax on that part of the net income of the trust estate at the rate declared by the Parliament for the purposes of this section.
Note: If the trust estate’s net income includes a net capital gain, Subdivision 115‑C of the Income Tax Assessment Act 1997 affects the assessment of the trustee.
(4B) Where there is no part of the net income of a trust estate that is not a resident trust estate:
(a) that is included in the assessable income of a beneficiary of the trust estate in pursuance of section 97;
(b) in respect of which the trustee of the trust estate is assessed and liable to pay tax in pursuance of section 98; or
(c) that is attributable to sources out of Australia;
the trustee shall be assessed and is liable to pay tax on the net income of the trust estate at the rate declared by the Parliament for the purposes of this section.
Note: If the trust estate’s net income includes a net capital gain, Subdivision 115‑C of the Income Tax Assessment Act 1997 affects the assessment of the trustee.
(4C) Where there is a part of the net income of a trust estate that is not a resident trust estate:
(a) that is attributable to sources in Australia;
(b) that is not included in the assessable income of a beneficiary of the trust estate in pursuance of section 97; and
(c) in respect of which the trustee of the trust estate is not assessed and is not liable to pay tax in pursuance of section 98;
the trustee shall be assessed and is liable to pay tax on that part of the net income of the trust estate at the rate declared by the Parliament for the purposes of this section.
Note: If the trust estate’s net income includes a net capital gain, Subdivision 115‑C of the Income Tax Assessment Act 1997 affects the assessment of the trustee.
99B Receipt of trust income not previously subject to tax
(1) Where, at any time during a year of income, an amount, being property of a trust estate, is paid to, or applied for the benefit of, a beneficiary of the trust estate who was a resident at any time during the year of income, the assessable income of the beneficiary of the year of income shall, subject to subsection (2), include that amount.
(2) The amount that, but for this subsection, would be included in the assessable income of a beneficiary of a trust estate under subsection (1) by reason that an amount, being property of the trust estate, was paid to, or applied for the benefit of, the beneficiary shall be reduced by so much (if any) of the amount, as represents:
(a) corpus of the trust estate (except to the extent to which it is attributable to amounts derived by the trust estate that, if they had been derived by a taxpayer being a resident, would have been included in the assessable income of that taxpayer of a year of income);
(b) an amount that, if it had been derived by a taxpayer being a resident, would not have been included in the assessable income of that taxpayer of a year of income;
(ba) an amount that is non‑assessable non‑exempt income of the beneficiary because of section 802‑17 of the Income Tax Assessment Act 1997;
(c) an amount:
(i) that is or has been included in the assessable income of the beneficiary in pursuance of section 97; or
(ii) in respect of which the trustee of the trust estate is or has been assessed and liable to pay tax in pursuance of section 98, 99 or 99A; or
(iii) that is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of the other trust estate is assessed and is liable to pay tax under subsection 98(4);
(d) an amount that is or has been included in the assessable income of any taxpayer (other than a company) under section 102AAZD; or
(e) if the beneficiary is a company—an amount that is or has been included in the assessable income of the beneficiary under section 102AAZD.
(2A) An amount that is not included in a beneficiary’s assessable income because of paragraph (2)(d) or (e) is not assessable income and is not exempt income.
(3) In paragraphs (2)(d) and (e):
company means a company other than a company in the capacity of a trustee.
99C Determining whether property is applied for benefit of beneficiary
(1) In determining for the purposes of section 99B whether any amount has been applied for the benefit of a beneficiary of a trust estate, regard shall be had to all benefits that have accrued at any time to the beneficiary (whether or not the beneficiary had rights at law or in equity in or to those benefits) as a result of the derivation of, or in relation to, that amount, irrespective of the nature or form of the benefits.
(2) Without limiting the generality of subsection (1), an amount shall be taken, for the purposes of section 99B, to have been applied for the benefit of a beneficiary if:
(a) whether by re‑investment, accumulation, capitalization or otherwise, and whether directly or indirectly, the amount has been so dealt with that it will, at a future time, and whether in the form of income or not, enure for the benefit of the beneficiary;
(b) the derivation of the amount has operated to increase the value to the beneficiary of any property or rights of any kind held by or for the benefit of the beneficiary;
(c) the beneficiary has received or become entitled to receive any benefit (including a loan or a repayment, in whole or in part, of a loan, or any other payment of any kind) provided directly or indirectly out of that amount or out of property or money that was available for the purpose by reason of the derivation of the amount;
(d) the beneficiary has power, by means of the exercise by the beneficiary of any power of appointment or revocation or otherwise, to obtain, whether with or without the consent of any other person, the beneficial enjoyment of the amount; or
(e) the beneficiary has directly or indirectly assigned to another person his or her interest in the amount or is able, in any manner whatsoever, and whether directly or indirectly, to control the application of that interest.
99D Refund of tax to non‑resident beneficiary
(1) Where:
(a) a trustee of a trust estate has been assessed and was liable to pay tax in pursuance of subsection 99(2) or (3) or subsection 99A(4) or (4A) in respect of the net income or a part of the net income of the trust estate of a year of income (in this subsection referred to as the relevant year of income), being the year of income that commenced on 1 July 1978 or a subsequent year of income;
(b) the amount (in this subsection referred to as the relevant tax amount) of the tax so assessed in respect of that net income or that part of that net income has been paid;
(c) the trustee of the trust estate has, in accordance with the terms of the trust, paid an amount (in this subsection referred to as the distributed amount) of the income of the trust estate of the relevant year of income to a beneficiary of the trust estate;
(d) before the expiration of 60 days after the date on which the payment was made, or within such further period as the Commissioner allows, the beneficiary, by writing signed by or on behalf of the beneficiary, makes an application to the Commissioner for a refund under this section in relation to the distributed amount; and
(e) the beneficiary satisfies the Commissioner that the whole or a part (which whole or part, as the case may be, is in this subsection referred to as the non‑Australian distributed amount) of the distributed amount:
(i) is attributable to a period when the beneficiary was not a resident and is also attributable to sources out of Australia;
(ii) was taken into account in calculating the net income of the trust estate of the relevant year of income; and
(iii) is not income that, by the operation of section 100A, is deemed not to have been paid to or applied for the benefit of the beneficiary or to be income to which the beneficiary is not presently entitled;
the Commissioner shall, subject to subsection (2), refund to the beneficiary so much (if any) of the relevant tax amount as is attributable to the non‑Australian distributed amount, reduced by so much of any refund or credit to which the trustee is or was entitled in respect of the relevant tax amount as is attributable to the non‑Australian distributed amount.
(2) The Commissioner may refuse to make a refund of tax in relation to an amount paid to a beneficiary of a trust estate if the Commissioner considers that the whole or a part of that amount was paid to the beneficiary by the trustee for the purpose or for purposes that included the purpose of enabling the beneficiary to become entitled to a refund of tax under this section in relation to that amount.
99E Later trust not taxed on income already taxed under subsection 98(4)
Sections 98, 99 and 99A do not apply to so much of the net income of a trust estate of a year of income as is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of the other trust estate is assessed and is liable to pay tax under subsection 98(4).
99G Amounts covered by withholding requirement
Subsection 98(4) does not apply to so much of the net income of a trust estate as represents income to which a beneficiary is presently entitled and gives rise to an amount from which an entity is required to withhold an amount under Subdivision 12‑H in Schedule 1 to the Taxation Administration Act 1953.
99GA Amounts covered by sovereign immunity exemption
Subsection 98(3) does not apply to so much of the net income of a trust estate as represents income to which a beneficiary is presently entitled and gives rise to an amount that is non‑assessable non‑exempt income because of:
(a) Division 880 of the Income Tax Assessment Act 1997; or
(b) Division 880 of the Income Tax (Transitional Provisions) Act 1997.
99H Late payments
(1) This section applies if:
(a) a beneficiary of a trust estate that is a managed investment trust is presently entitled to a share of the income of the trust estate of a year of income; and
(b) the beneficiary is a non‑resident at the end of the year of income; and
(c) all or part of that share of the net income of the trust estate (the late amount) has not been paid to the beneficiary by the end of the period applicable under subsection 12‑405(4) in Schedule 1 to the Taxation Administration Act 1953; and
Note: That subsection requires payments to be made before the end of 3 months after the end of the relevant year of income or within a longer period allowed by the Commissioner.
(d) if the late amount had been paid to the beneficiary within that period, the payment would have been a fund payment made by the trustee of the managed investment trust.
(2) This Division applies as if that portion of the beneficiary’s income that represents the late amount were income to which no beneficiary was presently entitled.
(3) In working out the net income of the trust estate for the year of income for the purposes of subsection (1), disregard these amounts (excluded amounts):
(a) a dividend (as defined in Division 11A of Part III) that is subject to, or exempted from, a requirement to withhold under Subdivision 12‑F in Schedule 1 to the Taxation Administration Act 1953;
(b) interest (as so defined) that is subject to, or exempted from, such a requirement;
(c) a royalty that is subject to, or exempted from, such a requirement;
(d) a capital gain or capital loss from a CGT event that happens in relation to a CGT asset that is not taxable Australian property;
(e) amounts that are not from a source in Australia;
and disregard deductions relating to excluded amounts.
100 Beneficiary assessable in respect of certain trust income
(1) The assessable income of any beneficiary who:
(a) is under a legal disability or is deemed to be presently entitled to any of the income of a trust estate by virtue of the operation of subsection 95A(2); and
(b) is a beneficiary in more than one trust estate or derives income from any other source;
shall include:
(c) so much of the individual interest of the beneficiary in the net income of the trust estate or of each of the trust estates as is attributable to a period when the beneficiary was a resident; and
(d) so much of the individual interest of the beneficiary in the net income of the trust estate or of each of the trust estates as is attributable to a period when the beneficiary was not a resident and is also attributed to sources in Australia.
Note: An amount is not included in assessable income under this section to the extent that subsection 98A(3) already includes it: see subsection 98A(4).
(1AA) If an amount is included in the assessable income of a beneficiary of a trust estate because of Subdivision 115‑C or 207‑B of the Income Tax Assessment Act 1997, for the purposes of paragraph (1)(b), treat the beneficiary as deriving income from another source.
(1A) If:
(a) a beneficiary in a trust estate is under a legal disability or is deemed to be presently entitled to any of the income of the trust estate by virtue of the operation of subsection 95A(2); and
(b) the beneficiary is not a beneficiary in any other trust estate and does not derive income from any other source; and
(c) the beneficiary would receive a refund of tax offsets under Division 67 of the Income Tax Assessment Act 1997 for a particular year of income if the following amounts were included in the assessable income of the beneficiary for that year:
(i) so much of the individual interest of the beneficiary in the net income of the trust estate for that year as is attributable to a period when the beneficiary was a resident;
(ii) so much of the individual interest of the beneficiary in the net income of the trust estate for that year as is attributable to a period when the beneficiary was not a resident and is also attributable to sources in Australia;
then those amounts are included in the assessable income of the beneficiary for that year.
(1B) If a beneficiary in a trust estate who is under a legal disability or is deemed to be presently entitled to any of the income of the trust estate by virtue of the operation of subsection 95A(2):
(a) is a resident at the end of the year of income; and
(b) is not a beneficiary in any other trust estate and does not derive income from any other source;
the assessable income of the beneficiary includes so much of the individual interest of the beneficiary in the net income of the trust estate as is reasonably attributable to a part of the net income of another trust estate in respect of which the trustee of the other trust estate is assessed and is liable to pay tax under subsection 98(4).
Note 2: A credit is available under section 98B for an appropriate part of the subsection 98(4) tax.
Note 3: An amount is not included in assessable income under this section to the extent that subsection 98A(3) already includes it: see subsection 98A(4).
(1C) If a beneficiary in a trust estate who is under a legal disability or is deemed to be presently entitled to any of the income of the trust estate by virtue of the operation of subsection 95A(2):
(a) is a resident at the end of the year of income; and
(b) is not a beneficiary in any other trust estate and does not derive income from any other source;