(b) the statement is not a correct TB statement about the share, with the result that, apart from this subsection, this section applies; and
(c) either:
(i) the trustee could not reasonably have foreseen the event that caused the statement not to be a correct TB statement; or
(ii) the statement is not a correct TB statement because of an inadvertent error; and
(d) either:
(i) before any trustee beneficiary non‑disclosure tax becomes due and payable on the untaxed part as a result of this section applying; or
(ii) before the end of 4 years after any such tax becomes due and payable;
the trustee advises the Commissioner in writing of any change that is necessary to make the statement a correct TB statement about the share;
this section does not apply, and is taken never to have applied, to the untaxed part.
Trustee group
(3) The trustee group consists of the following:
(a) the trustee of the closely held trust;
(b) if the trustee of the closely held trust is a company—the directors of the company.
102UL Exclusion of directors of closely held trust from liability to pay tax
(1) This section applies if a director of a company that is the trustee of the closely held trust is included in the trustee group under section 102UK.
Director not taking part in statement decision because of illness or other good reason
(2) If, because of illness or for some other good reason, the director did not take part in any decision not to make the correct TB statement, the director is not included in the trustee group.
Director otherwise not taking part in statement decision
(3) If:
(a) the director did not take part in any decision not to make the correct TB statement; and
(b) either:
(i) the director was not aware of the proposal to make such a decision; or
(ii) the director was aware and took reasonable steps to prevent the making of the decision;
the director is not included in the trustee group.
Director taking part in statement decision
(4) If:
(a) the director took part in any decision not to make a correct TB statement; and
(b) the director voted against, or otherwise disagreed with the decision; and
(c) the director took reasonable steps to ensure that a correct TB statement would be made;
the director is not included in the trustee group.
Where no statement decision
(5) If:
(a) no decision was made not to make a correct TB statement; and
(b) either:
(i) the director, because of illness or for some other good reason, was not involved in the management of the company during the TB statement period in relation to the year of income; or
(ii) the director took reasonable steps to ensure that a correct TB statement would be made;
the director is not included in the trustee group.
102UM Trustee beneficiary non‑disclosure tax where share is distributed to trustee of closely held trust
(1) This section applies if:
(a) a share of the net income of a closely held trust for a year of income is included in the assessable income of a trustee beneficiary of the trust under section 97; and
(b) the trustee of the closely held trust becomes presently entitled to an amount that is reasonably attributable to the whole or a part of the untaxed part of the share; and
(c) trustee beneficiary non‑disclosure tax is not payable by the trustee of the closely held trust on the untaxed part under paragraph 102UK(2)(a).
Consequences of section applying
(2) If this section applies:
(a) either:
(i) if the trustee of the closely held trust is the only person in the trustee group (see subsection (3))—the trustee is liable to pay tax; or
(ii) if the trustee of the closely held trust is not the only person in the trustee group—the persons in the trustee group are jointly and severally liable to pay tax;
as imposed by the Taxation (Trustee Beneficiary Non‑disclosure Tax) Act (No. 2) 2007, on the whole or that part of the untaxed part; and
(b) except for the purposes of sections 99, 99A and 99B and this Division, the whole or that part of the untaxed part is not included in the assessable income of the trustee beneficiary under section 97.
Note: Provisions dealing with the payment etc. of the tax under paragraph (a) (known as trustee beneficiary non‑disclosure tax) are set out in Subdivision D.
Trustee group
(3) The trustee group consists of the following:
(a) the trustee of the closely held trust;
(b) if the trustee of the closely held trust is a company—the directors of the company.
Subdivision D—Payment etc. of trustee beneficiary non‑disclosure tax
102UN Amount of trustee beneficiary non‑disclosure tax reduced by notional tax offset
(1) This section applies to trustee beneficiary non‑disclosure tax that a trustee group would otherwise be liable to pay on the whole or part of a share of the net income of a closely held trust.
(2) The amount of the trustee beneficiary non‑disclosure tax is reduced by the amount of any tax offset to which the trustee of the closely held trust would be entitled in an assessment under section 99A if it were assumed that the trustee were assessed and liable to pay tax under that section on the whole or the part of the share of the net income.
102UO Payment of trustee beneficiary non‑disclosure tax
Due date
(1) Trustee beneficiary non‑disclosure tax is due and payable at the end of:
(a) 21 days after the TB statement period concerned ends; or
(b) such later day as the Commissioner, in special circumstances, allows.
Debt due
(2) Trustee beneficiary non‑disclosure tax, when it becomes due and payable, is a debt due to the Commonwealth and payable to the Commissioner.
(3) Any unpaid trustee beneficiary non‑disclosure tax may be sued for and recovered in a court of competent jurisdiction by the Commissioner suing in his or her official name.
Application
(4) Subsections (2) and (3) do not apply in relation to any trustee beneficiary non‑disclosure tax that becomes due and payable on or after 1 July 2000.
Note: For provisions about collection and recovery of trustee beneficiary non‑disclosure tax and other amounts on or after 1 July 2000, see Part 4‑15 in Schedule 1 to the Taxation Administration Act 1953.
102UP Late payment of trustee beneficiary non‑disclosure tax
If any of the trustee beneficiary non‑disclosure tax which a person is liable to pay remains unpaid 60 days after the day by which it is due to be paid, the person is liable to pay the general interest charge on the unpaid amount for each day in the period that:
(a) started at the beginning of the 60th day after the day by which the trustee beneficiary non‑disclosure tax was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the trustee beneficiary non‑disclosure tax;
(ii) general interest charge on any of the trustee beneficiary non‑disclosure tax.
Note: The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
102UR Notice of liability
(1) The Commissioner may give a person or persons, by post or otherwise, a notice specifying:
(a) the amount of any trustee beneficiary non‑disclosure tax that the Commissioner has ascertained is payable by the person or persons; and
(b) the day on which that tax became or will become due and payable.
Effect of notice on liability etc.
(2) The amount of the liability of a person or persons to trustee beneficiary non‑disclosure tax, and the due date for payment of the tax, are not dependent on, or in any way affected by, the giving of a notice.
Amendment of notice
(3) The Commissioner may at any time amend a notice. An amended notice is a notice for the purposes of this section.
Inconsistency between notices
(4) If there is an inconsistency between notices that relate to the same subject matter, the later notice prevails to the extent of the inconsistency.
Objections
(5) A person who is or persons who are dissatisfied with a notice made in relation to the person or persons may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
102URA Request for notice of liability
(1) A person or persons may make a written request to the Commissioner to be given a notice under subsection 102UR(1) in respect of specified circumstances in which trustee beneficiary non‑disclosure tax may be payable.
Compliance with request
(2) The Commissioner must, subject to subsection (3) of this section, comply with the request.
Further information
(3) If the Commissioner considers that the notice cannot be given unless the person or persons give the Commissioner further information, the Commissioner must request the person or persons to give the Commissioner the information.
Failure to give information
(4) If the person or persons do not give the information, the Commissioner is not required to comply with the request to give the notice.
102USA Recovery of trustee beneficiary non‑disclosure tax from trustee beneficiaries providing incorrect information etc. to head trustee
(1) This section applies if the requirements in subsections (2) and (3) are satisfied.
Requirement for payment of trustee beneficiary non‑disclosure tax
(2) A requirement for this section to apply is that:
(a) the trustee of a closely held trust does not make a correct TB statement about a share of the net income of the trust of a year of income during the TB statement period in relation to the year of income; and
(b) as a result, the trustee becomes liable, or the persons in the trustee group become jointly and severally liable, under section 102UK to pay trustee beneficiary non‑disclosure tax; and
(c) the trustee or any of the persons in the trustee group pays an amount (the recoverable amount), being some or all of the tax or any general interest charge under section 102UP in relation to the tax.
Requirement for refusal etc. to provide information or for incorrect statement
(3) A requirement for this section to apply is that:
(a) either:
(i) the trustee of the closely held trust was unable to make a correct TB statement about the share of the net income during the TB statement period because the trustee beneficiary in whose assessable income the share is included under section 97, when requested to do so, refused or failed to give information to the trustee; or
(ii) the trustee of the closely held trust purported to make a correct TB statement about the share of the net income during the TB statement period but the statement was not a correct TB statement because it contained incorrect information given to the trustee of the closely held trust by the trustee beneficiary in whose assessable income the share is included under section 97, and the trustee honestly believed on reasonable grounds that the information was correct; and
(b) the trustee of the closely held trust distributed to the trustee beneficiary an amount representing some or all of the share of the net income without withholding an amount under section 254 in respect of the recoverable amount.
Consequences of section applying
(4) If this section applies, the trustee or the person in the trustee group mentioned in paragraph (2)(c) may, in a court of competent jurisdiction, sue for the recoverable amount and recover it from the trustee beneficiary.
Subdivision E—Making correct TB statement about trustee beneficiaries of tax‑preferred amounts
102UT Requirement to make correct TB statement about trustee beneficiaries of tax‑preferred amounts
(1) If, at the end of a year of income:
(a) a trustee beneficiary of a closely held trust is presently entitled to a share of a tax‑preferred amount of the trust; and
(b) the trustee of the closely held trust is not covered by a determination under subsection 102UK(1A) for the year of income; and
(c) the closely held trust is none of the following:
(i) a family trust (within the meaning of section 272‑75 in Schedule 2F);
(ii) a trust in relation to which an interposed entity election has been made and is in force in accordance with section 272‑85 in Schedule 2F;
(iii) a trust covered by subsection 272‑90(5) in Schedule 2F;
the trustee of the closely held trust must, during the TB statement period, make and send to the Commissioner a correct TB statement covering the share.
(2) For the purposes of the Taxation Administration Act 1953, if the trustee contravenes the requirement in subsection (1) of this section to make and send a statement to the Commissioner, then, subject to subsection (3) of this section, the trustee commits an offence against section 8C of that Act.
(3) The trustee does not commit an offence against section 8C of the Taxation Administration Act 1953 as a result of a contravention of the requirement if:
(a) the trustee did not know all the information required to be included in the statement; and
(b) the trustee had taken reasonable steps to ascertain the information that he or she did not know; and
(c) if the trustee did know some of the information, he or she included it in a statement that he or she sent to the Commissioner during the TB statement period.
(4) The only burden of proof that the trustee bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.
Subdivision F—Special provisions about tax file numbers
102UU Trustee beneficiary may quote tax file number to trustee of closely held trust
A trustee beneficiary in respect of:
(a) a share of the net income of a closely held trust for a year of income that is included in the assessable income of the trustee beneficiary of the trust under section 97; or
(b) a share of a tax‑preferred amount of a closely held trust to which the trustee beneficiary of the trust is presently entitled at the end of a year of income;
may quote his or her tax file number to the trustee of the closely held trust in connection with that trustee making a correct TB statement about that share.
Note: Section 8WA of the Taxation Administration Act 1953 makes it an offence for a person to require or request another person to quote the other person’s tax file number unless provision is made by a taxation law for the other person to quote the number.
102UV Trustee of closely held trust may record etc. tax file number
(1) This section applies if a trustee beneficiary in respect of:
(a) a share of the net income of a closely held trust for a year of income that is included in the assessable income of the trustee beneficiary of the trust under section 97; or
(b) a share of a tax‑preferred amount of a closely held trust to which the trustee beneficiary of the trust is presently entitled at the end of a year of income;
quotes his or her tax file number to the trustee of the closely held trust in connection with that trustee making a correct TB statement about that share.
(2) Section 8WB of the Taxation Administration Act 1953 does not prohibit the trustee of the closely held trust from:
(a) recording the tax file number or maintaining such a record; or
(b) using the tax file number in a manner connecting it with the identity of the trustee beneficiary; or
(c) divulging or communicating the tax file number to a third person;
in connection with that trustee making a correct TB statement about that share.
Division 6E—Adjustment of Division 6 assessable amount in relation to capital gains, franked distributions and franking credits
102UW Application of Division
This Division applies if:
(a) the net income of a trust estate exceeds nil; and
(b) any of the following things are taken into account in working out the net income of the trust estate:
(i) a capital gain (to the extent that an amount of the capital gain remained after applying steps 1 to 4 of the method statement in subsection 102‑5(1) of the Income Tax Assessment Act 1997);
(ii) a franked distribution (to the extent that an amount of the franked distribution remained after reducing it by deductions that were directly relevant to it);
(iii) a franking credit.
102UX Adjustment of Division 6 assessable amount in relation to capital gains, franked distributions and franking credits
(1) Make the assumptions in the following subsections for the purposes of working out in accordance with Division 6 an amount:
(a) included in the assessable income of a beneficiary of a trust estate under section 97, 98A or 100; or
(b) in respect of which a trustee of a trust estate is liable to pay tax under section 98, in relation to a beneficiary of the trust estate; or
(c) in respect of which a trustee of a trust estate is liable to pay tax under section 99 or 99A.
Note: Those assumptions are made only for the purposes of working out the amounts mentioned in paragraphs (a), (b) and (c). They are not made for any other purposes (for example, determining the income of a trust estate, the net income of a trust estate, or the amount of a present entitlement of a beneficiary of a trust estate to the income of the trust estate).
(2) Assume that the income of the trust estate were equal to the Division 6E income of the trust estate.
(3) Assume that the net income of the trust estate were equal to the Division 6E net income of the trust estate.
(4) Assume that the amount of a present entitlement of a beneficiary of the trust estate to the income of the trust estate were equal to the amount of the beneficiary’s Division 6E present entitlement to the income of the trust estate.
102UY Interpretation
(1) Expressions used in this Division have the same meaning as in Division 6.
(2) The Division 6E income, of the trust estate, is the income of the trust estate worked out on the assumption that amounts attributable to the things mentioned in paragraph 102UW(b) were disregarded. The Division 6E income of the trust estate cannot be less than nil.