A trustee of a unit trust that would, apart from this section, carry on a trading business at a time during a year of income is taken for the purposes of this Division not to carry on a trading business at a time during that year if, for that year, not more than 2% of the gross revenue of the trustee (as trustee of the unit trust) was income from things other than eligible investment business (except from the carrying on of a business that is not incidental and relevant to the eligible investment business).
102MD Exempt institution that is eligible for a refund not treated as exempt entity
For the purposes of this Division, treat an entity as not being an exempt entity if:
(a) the entity is an exempt institution that is eligible for a refund (within the meaning of the Income Tax Assessment Act 1997); or
(b) the entity is treated as such an exempt institution that is eligible for a refund.
Example: The Future Fund Board is treated as an exempt institution that is eligible for a refund for the purposes of the Income Tax Assessment Act 1997 (see section 84B of the Future Fund Act 2006).
102N Trading trusts
(1) For the purposes of this Division, a unit trust is a trading trust in relation to a year of income if, at any time during the year of income, the trustee:
(a) carried on a trading business; or
(b) controlled, or was able to control, directly or indirectly, the affairs or operations of another person in respect of the carrying on by that other person of a trading business.
(2) Despite paragraph (1)(b), a unit trust is not a trading trust only because it has acquired ownership interests (including a controlling interest) in, or controls:
(a) a foreign entity whose business, when considered together with the businesses of entities that the foreign entity controls or is able to control, directly or indirectly, consists primarily of investing in land outside Australia for the purpose, or primarily for the purpose, of deriving rent; or
(b) a foreign entity controlled, or able to be controlled, directly or indirectly, by an entity covered by paragraph (a).
(3) In this section:
entity has the same meaning as in the Income Tax Assessment Act 1997.
102NA Certain interposed trusts not trading trusts
(1) A unit trust is not a trading trust for the purposes of this Division in relation to a year of income if:
(a) the trust is an interposed trust in relation to a scheme for reorganising the affairs of stapled entities referred to in Subdivision 124‑Q of the Income Tax Assessment Act 1997 in relation to the year of income or an earlier year of income; and
(b) a roll‑over was obtained by any entity under that Subdivision of that Act in relation to the scheme for the year of income or that earlier year of income; and
(c) the condition in subsection (2) is satisfied.
(2) The trustee of the trust must not, at any time during the year of income:
(a) carry on a trading business; or
(b) control, or be able to control, directly or indirectly, the affairs or operations of another entity that carries on a trading business, other than:
(i) a company that was, before the scheme was completed, one of the stapled entities referred to in Subdivision 124‑Q of the Income Tax Assessment Act 1997; or
(ii) a subsidiary of one of those stapled entities that is a company, or an entity that is controlled or able to be controlled, directly or indirectly, by that company; or
(iii) a trust whose trustee was, before the scheme was completed, assessed and liable to pay tax under this Division (or under former Division 6B, before its repeal by the Tax Laws Amendment (New Tax System for Managed Investment Trusts) Act 2016 and that was, before the scheme was completed, one of those stapled entities; or
(iv) an entity that is controlled or able to be controlled, directly or indirectly, by the trust referred to in subparagraph (iii);
in relation to the year of income or an earlier year of income.
(3) In this section:
entity has the same meaning as in the Income Tax Assessment Act 1997.
102P Public unit trusts
(1) For the purposes of this Division, but subject to the succeeding provisions of this section, a unit trust is a public unit trust in relation to a year of income if, at any time during the year of income:
(a) any of the units in the unit trust were listed for quotation in the official list of a stock exchange in Australia or elsewhere;
(b) any of the units in the unit trust were offered to the public; or
(c) the units in the unit trust were held by not fewer than 50 persons.
(2) For the purposes of this Division, but subject to the succeeding provisions of this section, a unit trust is also a public unit trust in relation to a year of income if:
(a) at any time during the year of income, an exempt entity or exempt entities held, or had the right to acquire or become the holder or holders of, a unit or units in the unit trust that entitled the holder or holders to not less than 20% of:
(i) the beneficial interests in the income of the unit trust; or
(ii) the beneficial interests in the property of the unit trust;
(b) not less than 20% of the total of money paid or credited by the trustee of the unit trust during the year of income to unitholders as unitholders was paid or credited to an exempt entity or exempt entities; or
(c) by reason of:
(i) any provision in the instrument by which the trust was created, or any contract agreement or instrument authorising the variation or abrogation of the rights attaching to any of the units in the unit trust or relating to the conversion, cancellation, extinguishment or redemption of any such units;
(ii) any contract, agreement, option or instrument under which a person has power to acquire a unit or units in the unit trust; or
(iii) any power, authority or discretion in a person in relation to the rights attaching to any of the units in the unit trust;
the rights attaching to any of the units in the unit trust were, at any time during the year of income, capable of being varied or abrogated in such a manner (notwithstanding that they were not in fact varied or abrogated in that manner) that:
(iv) units in the unit trust that entitled the holder or holders to not less than 20% of:
(A) the beneficial interests in the income of the unit trust; or
(B) the beneficial interests in the property of the unit trust;
would have been held by an exempt entity or exempt entities;
(v) not less than 20% of the total of money paid or credited by the trustee of the unit trust during the year of income to unitholders as unitholders would have been paid or credited to an exempt entity or exempt entities; or
(vi) in the case where no money was paid or credited by the trustee of the unit trust during the year of income to unitholders as unitholders—if money had been so paid or credited by the trustee of the unit trust during the year of income, not less than 20% of the amount of that money would have been paid or credited to an exempt entity or exempt entities.
(3) A unit trust shall not be taken to be a public unit trust in relation to a year of income by reason that units in the unit trust were offered to the public at any time during the year of income if the Commissioner is of the opinion that any of those units were offered to the public for the purpose, or for purposes that included the purpose, of enabling the unit trust to be treated as a public unit trust for the purposes of this Division in relation to the year of income.
(4) Subject to subsection (5), a unit trust that, but for this subsection and subsection (7), would be a public unit trust in relation to a year of income by virtue only of subsection (1) shall be deemed not to be a public unit trust in relation to the year of income if, at any time during the year of income, one person or persons not more than 20 in number held, or had the right to acquire or become the holder or holders of, a unit or units in the unit trust that entitled the holder or holders thereof to not less than 75% of:
(a) the beneficial interests in the income of the unit trust; or
(b) the beneficial interests in the property of the unit trust.
(5) Subject to subsection (7), where by virtue of subsection (4), a unit trust would, but for this subsection, be deemed not to be a public unit trust in relation to a year of income by reason that, at any time during the year of income, one person or persons not more than 20 in number held, or had the right to acquire or become the holder or holders of, the unit or units referred to in subsection (4) and the Commissioner is of the opinion that, having regard to:
(a) the length of the period or the aggregate of the lengths of the periods in the year of income during which one person or persons not more than 20 in number held, or had the right to acquire or become the holder or holders of, the unit or units referred to in subsection (4); and
(b) any other matters that the Commissioner considers relevant;
it is reasonable that the unit trust should be treated as a public unit trust in relation to the year of income, the unit trust shall be deemed to be a public unit trust in relation to the year of income.
(6) For the purposes of subsections (4) and (5), a person (in this subsection referred to as the transferee) to whom a right to acquire or become the holder of a unit in a unit trust is granted or transferred shall be deemed not to have such a right if the Commissioner is of the opinion, having regard to the financial circumstances of the transferee and to any other matters that the Commissioner considers relevant, that it was not intended by the person who granted or transferred the right to the transferee that the right would be exercised by the transferee.
(7) Subject to subsection (8), a unit trust that, but for this subsection, would be a public unit trust in relation to a year of income by virtue only of subsection (1), shall be deemed not to be a public unit trust in relation to that year of income if:
(a) not less than 75% of the total of money paid or credited by the trustee of the unit trust during the year of income to unitholders as unitholders was paid or credited to one person or persons not more than 20 in number; or
(b) by reason of:
(i) any provision in the instrument by which the trust was created, or any contract, agreement or instrument authorising the variation or abrogation of the rights attaching to any of the units in the unit trust or relating to the conversion, cancellation, extinguishment or redemption of any such units;
(ii) any contract, agreement, option or instrument under which a person has power to acquire a unit or units in the unit trust; or
(iii) any power, authority or discretion in a person in relation to the rights attaching to any of the units in the unit trust;
the rights attaching to any of the units in the unit trust were, at any time during the year of income, capable of being varied or abrogated in such a manner (notwithstanding that they were not in fact varied or abrogated in that manner) that:
(iv) units in the unit trust that entitled the holder or holders thereof to not less than 75% of:
(A) the beneficial interests in the income of the unit trust; or
(B) the beneficial interests in the property of the unit trust;
would have been held by one person or persons not more than 20 in number;
(v) not less than 75% of the total of money paid or credited by the trustee of the unit trust during the year of income to unitholders as unitholders would have been paid or credited to one person or persons not more than 20 in number; or
(vi) in the case where no money was paid or credited by the trustee of the unit trust during the year of income to unitholders as unitholders—if money had been so paid or credited by the trustee of the unit trust during the year of income, not less than 75% of the amount of that money would have been paid or credited to one person or persons not more than 20 in number.
(8) A unit trust shall not be deemed by subsection (7) not to be a public unit trust in relation to a year of income by reason that rights attaching to any of the units in the unit trust were, at any time during the year of income, capable of being varied in the manner mentioned in paragraph (7)(b) if the Commissioner is of the opinion that the person or persons who were able to vary the rights in that manner intended not to vary the rights in that manner during the year of income.
(9) For the purposes of subsections (1) and (3), units in a unit trust shall be taken to be offered to the public if and only if:
(a) an offer is made to the public or to a section of the public to subscribe for or purchase the units; or
(b) an invitation is issued to the public or to a section of the public to make offers to subscribe for or purchase the units.
(10) For the purposes of this section, where any units in a unit trust (except a foreign entity to which subsection 102N(2) applies) are held by the trustee of another trust estate, a person who has a beneficial interest in property of that other trust estate that consists of those units (whether or not that beneficial interest is deemed to be held by virtue of the application of this subsection) shall be deemed to hold those units.
(10A) Subsection (10) does not apply in relation to units in a unit trust that are held by the trustee of another trust estate if the other trust estate is a complying superannuation entity (within the meaning of the Income Tax Assessment Act 1997).
(11) For the purposes of this section, a distribution of property of a unit trust to a unitholder shall be taken to be a payment of money to the unitholder of an amount equal to the value of the property.
(12) For the purposes of this section:
(a) a person, whether or not he or she holds units in the unit trust concerned;
(b) his or her relatives; and
(c) in relation to any units in respect of which they are such nominees, his or her nominees and the nominees of any of his or her relatives;
shall be deemed to be one person.
102Q Resident unit trusts
For the purposes of this Division, a unit trust is a resident unit trust in relation to a year of income if, at any time during the year of income:
(a) either of the following conditions was satisfied:
(i) any property of the unit trust was situated in Australia;
(ii) the trustee of the unit trust carried on business in Australia; and
(b) either of the following conditions was satisfied:
(i) the central management and control of the unit trust was in Australia;
(ii) a person who was a resident or persons who were residents held more than 50% of:
(A) the beneficial interests in the income of the unit trust; or
(B) the beneficial interests in the property of the unit trust.
102R Public trading trusts
(1) A unit trust is a public trading trust in relation to a relevant year of income if:
(a) where the relevant year of income is the year of income that commenced on 1 July 1985, the year of income commencing on 1 July 1986 or the year of income commencing on 1 July 1987:
(i) the unit trust was established after 19 September 1985;
(ii) the unit trust is a public unit trust in relation to the relevant year of income;
(iii) the unit trust is a trading trust in relation to the relevant year of income;
(iv) either of the following conditions is satisfied:
(A) the unit trust is a resident unit trust in relation to the relevant year of income;
(B) the unit trust was a public trading trust in relation to a year of income preceding the relevant year of income; or
(b) where the relevant year of income is the year of income commencing on 1 July 1988 or a subsequent year of income:
(i) the unit trust is a public unit trust in relation to the relevant year of income;
(ii) the unit trust is a trading trust in relation to the relevant year of income;
(iii) either of the following conditions is satisfied:
(A) the unit trust is a resident unit trust in relation to the relevant year of income;
(B) the unit trust was a public trading trust in relation to a year of income preceding the relevant year of income.
(2) Where:
(a) a unit trust would, but for this subsection, be a unit trust established on or before 19 September 1985;
(b) the unit trust was not a trading trust on 19 September 1985; and
(c) the unit trust became a trading trust on a day after 19 September 1985;
the unit trust shall be taken, for the purposes of this section, to have been established after 19 September 1985.
(3) For the purposes of subsection (2), a unit trust is a trading trust on a particular day if, on that day, the trustee:
(a) carries on a trading business; or
(b) controls or is able to control, directly or indirectly, the affairs or operations of another person in respect of the carrying on by that other person of a trading business.
(4) Where:
(a) a unit trust would, but for this subsection, be a unit trust established on or before 19 September 1985;
(b) if the year of income in which 19 September 1985 occurred had ended on that date, the unit trust would not have been a public unit trust in relation to that year of income; and
(c) the Commissioner is satisfied that, at no time on or before that date, was it the intention of the trustee of the unit trust that the unit trust would become a public unit trust in relation to a year of income;
the unit trust shall be taken, for the purposes of this section, to have been established after 19 September 1985.
(5) In determining whether a unit trust is a public trading trust under this section, disregard any interest that the trust has that is disregarded under subsection 275‑10(4A) of the Income Tax Assessment Act 1997.
102S Taxation of net income of public trading trust