(ii) the remaining part, or each of the remaining parts, of the income or profit:
(A) is subject to tax in another listed country or in different listed countries, as the case may be, in a tax accounting period ending before the end of the year of income or commencing during the year of income; or
(B) is designated concession income in relation to any listed country.
(2) For the purposes of the application of subparagraph (1)(b)(ii) to a trust estate, if a particular part of an item of income or profit (which part is in this subsection called the item part) derived by the trust estate is included, or would apart from Subdivision 50‑A or section 51‑5, 51‑10 or 51‑30 of the Income Tax Assessment Act 1997 be included, in the assessable income of the trust estate of a year of income (in this subsection called the trust’s year of income) and one of the following paragraphs applies:
(a) both of the following conditions are satisfied:
(i) the trustee of the trust estate is liable to be assessed and pay tax under section 98, 99 or 99A in respect of a part of, or a share in, the net income of the trust estate of the trust’s year of income;
(ii) the whole or a part of the part or share of the net income is attributable to the item part;
(b) all of the following conditions are satisfied:
(i) an amount is included in the assessable income of another taxpayer of the trust’s year of income or the next following year of income (which taxpayer is in this subsection called the actual taxpayer) under subsection 92(1) or section 97, 98A or 100;
(ii) the actual taxpayer is:
(A) a company or a natural person (other than a company or a natural person in the capacity of a trustee); or
(B) the trustee of a complying superannuation fund, a non‑complying superannuation fund, a complying approved deposit fund, a non‑complying approved deposit fund or a pooled superannuation trust in relation to the year of income concerned; or
(D) the trustee of a public trading trust in relation to the year of income concerned; or
(E) the trustee of a trust estate who is liable to be assessed and pay tax under section 98, 99 or 99A in respect of a part of, or a share in, the net income of a trust estate;
(iii) if sub‑subparagraph (ii)(A), (B), (C) or (D) applies—the whole or a part of the amount so included in the actual taxpayer’s assessable income is attributable (either directly or indirectly through one or more interposed partnerships or trusts) to the item part;
(iv) if sub‑subparagraph (ii)(E) applies—the whole or a part of the part or share of the net income is attributable (either directly or indirectly through one or more interposed partnerships or trusts) to the item part;
(c) both of the following conditions are satisfied:
(i) trustee beneficiary non‑disclosure tax is payable under Division 6D on the whole or part (the net income amount) of a share of the net income of the trust estate of the trust’s year of income;
(ii) the whole or part of the net income amount is attributable to the item part;
the item part is to be treated as if it were subject to tax in a listed country in a tax accounting period ending before the end of the trust’s year of income.
(3) For the purposes of this section, where a part of a particular item of income or profits derived by an entity would, if it were a separate item of income or profits, be taken to be subject to tax in a listed country in a particular tax accounting period, that part is taken to be subject to tax in that listed country in that tax accounting period.
102AAF Public unit trusts
(1) Subject to this section, for the purposes of this Division, a unit trust is a public unit trust at all times during a year of income if either of the following conditions are satisfied:
(a) at any time during the year of income:
(i) any of the units in the unit trust were listed for quotation in the official list of a stock exchange in Australia or elsewhere; or
(ii) any of the units in the unit trust were offered to the public;
(b) at all times during the year of income, the units in the unit trust were held by not fewer than 50 persons.
(2) In determining whether a unit trust is a public unit trust at all times during a year of income for the purposes of this Division, subsections 102P(3) to (9) (inclusive) and (11) apply as if:
(a) a reference in those subsections to Division 6C were a reference to this Division; and
(b) a reference in those subsections to subsection 102P(1) were a reference to subsection (1) of this section; and
(c) a reference in those subsections to a public unit trust in relation to a year of income were a reference to a public unit trust at all times during a year of income.
(3) In determining whether a unit trust (in this subsection called the first unit trust) is a public unit trust at all times during a year of income for the purposes of this Division, the following provisions have effect:
(a) the following entities are taken to be one person:
(i) an entity, whether or not it holds units in the first unit trust; and
(ii) the entity or entities who are the associate or associates of the entity;
(b) where any units in the first unit trust are held by the trustee of another trust that, apart from this paragraph, is a public unit trust at all times during the year of income—a person who has a beneficial interest in property of that other trust that consists of those units is taken to hold those units;
(c) where any units in the first unit trust are held by the trustee of another trust that:
(i) apart from paragraph (b); or
(ii) by virtue of the application of paragraph (b);
is a public unit trust at all times during the year of income—a person who has a beneficial interest in the property of that other trust that consists of those units (whether or not that beneficial interest is taken to be held by virtue of the application of this paragraph) is taken to hold those units.
102AAG When entity is in a position to control a trust estate
(1) For the purposes of this Division, an entity is taken to be in a position to control a trust estate if, and only if:
(a) a group in relation to the entity had the power by means of the exercise by the group of any power of appointment or revocation or otherwise, to obtain, with or without the consent of any other entity, the beneficial enjoyment of the corpus or income of the trust estate; or
(b) a group in relation to the entity was able in any manner whatsoever, whether directly or indirectly, to control the application of the corpus or income of the trust estate; or
(c) a group in relation to the entity was capable under a scheme of gaining the enjoyment or the control referred to in paragraph (a) or (b); or
(d) a trustee of the trust estate was accustomed or under an obligation (whether formally or informally) or might reasonably be expected to act in accordance with the directions, instructions or wishes of a group in relation to the entity; or
(e) a group in relation to the entity was able to remove or appoint the trustee, or any of the trustees, of the trust estate.
(2) In subsection (1), a reference to a group in relation to an entity is a reference to:
(a) the entity acting alone; or
(b) an associate of the entity acting alone; or
(c) the entity and one or more associates of the entity acting together; or
(d) 2 or more associates of the entity acting together.
102AAH Non‑resident family trusts
(1) Subject to subsections (4) and (5), for the purposes of this Division, a trust estate is a non‑resident family trust in relation to a natural person at a particular time if, and only if, at that time:
(a) the trust estate is either:
(i) a post‑marital or post‑relationship family trust in relation to the natural person; or
(ii) a family relief trust in relation to the natural person; and
(b) the trust is constituted by:
(i) a deed of trust or other instrument; or
(ii) an order or declaration of a court.
(2) For the purposes of this section, a trust estate is a post‑marital or post‑relationship family trust in relation to a natural person at a particular time if:
(a) either of the following conditions is satisfied:
(i) the trust was created pursuant to:
(A) a decree or order of dissolution or annulment of marriage, being a dissolution or annulment that, because of the Family Law Act 1975, has effect, or continues to have effect in Australia or is recognised as valid in Australia; or
(B) a decree or order of judicial separation or a similar decree or order;
(ii) the trust was created in consequence of the break‑down of a de facto relationship; and
(b) at that time, the only persons who benefit, or are capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust (which persons are in subsections (4) and (5) called the primary potential beneficiaries) are natural persons who:
(i) are non‑residents at that time; and
(ii) are covered by any of the following categories:
(A) the spouse or former spouse of the natural person;
(B) a child of the natural person;
(C) a child of the former spouse of the natural person, being a child who was such a child at a time when the former spouse was the spouse of the natural person;
(D) a child of the spouse of the natural person.
(3) For the purposes of this section, a trust estate is a family relief trust in relation to a natural person at a particular time (in this subsection called the test time) if:
(a) the only persons who benefit, or are capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust (which persons are in subsections (4) and (5) called the primary potential beneficiaries) are natural persons who:
(i) are identified by name in the trust deed or instrument, or in the court order or declaration, constituting the trust; and
(ii) are non‑residents at that time; and
(iii) are covered by any of the following categories:
(A) the spouse or former spouse of the natural person;
(B) a parent of the natural person or of the natural person’s spouse or former spouse;
(C) a child of the natural person or of the natural person’s spouse or former spouse;
(D) a grandparent of the natural person;
(E) a grandchild of the natural person;
(F) a brother or sister of the natural person or of the natural person’s spouse or former spouse;
(G) a child of a brother or sister mentioned in sub‑subparagraph (F); and
(b) the trust was established, and is operated, for the relief of persons who are in necessitous circumstances; and
(c) any of the following conditions is satisfied:
(i) at the test time, the assets of the trust are not excessive having regard to the requirements, or likely requirements, of the primary potential beneficiaries;
(ii) no transfers of property or services to the trust estate were made during the period (in this paragraph called the test period) commencing at the IP time and ending at the test time;
(iii) immediately after each transfer of property or services to the trust estate made during the test period, the assets of the trust were not excessive having regard to the requirements, or likely requirements, of the beneficiaries at the time of the transfer.
Note: Section 960‑255 of the Income Tax Assessment Act 1997 may be relevant to determining relationships for the purposes of subparagraph (3)(a)(iii).
(4) Subsection (1) does not prevent a trust estate from being a non‑resident family trust in relation to a natural person at a particular time if, in the event of the death of a particular primary potential beneficiary at that time, one or more natural persons (which persons are in subsection (5) called the secondary potential beneficiaries) who:
(a) are non‑residents at that time; and
(b) are children of the primary potential beneficiary;
would benefit, or be capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust.
(5) Subsections (1) and (4) do not prevent a trust estate from being a non‑resident family trust in relation to a natural person at a particular time if, in the event of the death of all of the primary potential beneficiaries and all of the secondary potential beneficiaries at that time, there are one or more deductible gift recipients covered by an item in any of the tables in Subdivision 30‑B of the Income Tax Assessment Act 1997, or item 2 of the table in section 30‑15 of that Act, that would benefit, or be capable (whether by the exercise of a power of appointment or otherwise) of benefiting, under the trust.
(6) For the purposes of this section, if, at a particular time, an entity holds an interest in, or right to benefit under, a trust that is dependent on the death of one or more natural persons, then, the entity is taken to be an entity who, in the event of the death of that natural person or those natural persons immediately after that time, would benefit under the trust.
(7) A reference in this section to a natural person does not include a reference to a natural person in the capacity of a trustee.
102AAJ Transfer of property or services
(1) A reference in this Division to the transfer of property or services to a trust estate includes a reference to the transfer of such property or services by way of the creation of the trust estate.
(2) For the purposes of this Division, where an entity acquires property that did not previously exist, the property is taken to have existed immediately before the acquisition and to have been transferred by the entity who created the property.
(3) For the purposes of this Division, property or services are taken to have been transferred to an entity if the property or services have been applied for the benefit of, or in accordance with the directions of, the entity.
(4) Without limiting the generality of subsection (3), a reference in that subsection to the application of property or services for the benefit of an entity includes a reference to the application of property or services in the discharge, in whole or in part, of a debt due by the entity.
(5) Unless the contrary intention appears, a reference in this Division to a transfer of property or services includes a reference to a transfer made before the commencement of this Division.
(6) A reference in this Division to a transfer of property or services made before the IP time includes a reference to a transfer made at the IP time.
102AAK Deemed transfers of property or services to trust estate
(1) For the purposes of this Division, where an entity (in this subsection called the prime entity) causes another entity to actually transfer property or services to a trust estate, the prime entity is taken to have transferred the property or services (instead of the other entity).
(2) For the purposes of this Division, where:
(a) the trustee of a trust estate issues units in the trust to an entity (in this subsection called the first entity) in the first entity’s capacity as a manager, underwriter or dealer in relation to the marketing or placement of the units; and
(b) in the course of the marketing or placement of the units, the units are disposed of by the first entity to another entity (in this subsection called the second entity); and
(c) at a particular time (in this subsection called the second entity’s transfer time), the second entity transfers property or services to the first entity as consideration for the acquisition of the units; and
(d) the first entity has actually transferred, or actually transfers, property or services (in this subsection called the original property or services) to the trust estate for the sole purpose of acquiring the units;
the second entity is taken to have transferred the original property or services (instead of the first entity) at the second entity’s transfer time.
(3) A reference in subsection (2) to a unit in a trust estate is a reference to an interest (however described) in any of the income or property of the trust estate.
(4) Subsections (1) and (2) do not limit the operation of subsection (5).
(5) Where, under a scheme:
(a) an entity (in this subsection called the scheme entity) actually transfers property or services to another entity; and
(b) property or services are actually transferred to a trust estate at a particular time otherwise than by the scheme entity;
the Commissioner may, for the purposes of this Division, treat the property or services mentioned in paragraph (b) as having been transferred by the scheme entity to the trust estate (instead of by any other entity) at that time to such extent as the Commissioner considers reasonable.
(6) For the purposes of this Division, if (apart from subsections (8), (10) and (11)) an entity, being a partnership, transfers property or services to a trust estate at a particular time:
(a) each partner in the partnership is taken to have transferred a part of the property or services to the trust estate at that time; and
(b) the market value of the part transferred by a particular partner is calculated using the formula:
Start formula Market value times Partner's interest end formula
where:
Market value means the market value, immediately before the transfer, of the property or services transferred by the partnership.
Partner’s interest means:
(i) the partner’s percentage interest in the profits of the partnership as at that time; or
(ii) the partner’s percentage interest in the property of the partnership as at that time;
or, if they are different, whichever is the higher.
(7) Nothing in paragraph (6)(a) affects the application of this Division to the transfer made by the partnership concerned.