This section provides information on assessing the income and assets from trusts not covered under the new 01/01/2002 private trusts and private companies' rules.
The effect of a trust on a person's payment under the income and assets tests depends on whether they:
More ? [3]
A person who is a trustee only, derives no benefit from the trust; therefore, their pension entitlement is not affected. If a trustee receives salary or fees for administering the trust, however, the salary or fees are treated as income.
Any outstanding loan balances are maintained as an asset. If assets have been gifted or sold to the trust, deprivation will need to be considered if adequate financial consideration [4] has not been received.
VEA ? [5]
Assets may become part of a trust fund by being:
loaned to the trust, or
sold to the trust at market value [4], with payment of the proceeds deferred.
The amount owing is maintained as a financial asset
Loans made by beneficiaries to a trust are financial investments and therefore subject to deeming.
A person who is a beneficiary may be entitled to the income and assets of the trust now or at some time in the future. The document that created the trust (for example will or trust deed) establishes the beneficiary's interest in the income and assets of the trust.
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [10], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [10], trustee has the same meaning as in the Income Tax Assessment Act 1997 [11].
For adequate financial consideration to be received when disposing of an asset [4], a person must receive value in the form of money or assets. Adequate financial consideration can be accepted when the amounts received reasonably equate to the market value of the asset. It may be necessary to obtain a valuation from a property valuation service provider.
When disposing of income [4], in order for adequate financial consideration to be received, the person must receive money, goods or services which approximate in value to the rate of disposed income. If a person disposes of an income producing asset and receives adequate financial consideration in money or money's worth for the asset, then it can be accepted that they have received adequate financial consideration for the disposal of both the income and the asset.
The market value of an asset [4] is the point at which a willing purchaser and a willing, but not anxious vendor, would reach agreement.
The market value of an asset is only decreased by the value of an encumbrance secured against it. The market value of an asset is not reduced by any costs which may be incurred if the asset was to be sold.
Last amended 17 June 2009
A person who is a beneficiary of a discretionary trust [4], receives income from the trust only when:
Allocations and distributions are assessed as income for 12 months from the date of the resolution to distribute.
The following table describes the assessment of trust income that includes franking credits (known as imputation credits)
If a person is... |
Then the... |
a pensioner |
|
The following table describes the roles of individuals within a trust and the treatment of their trust related income. A person may have more than one role and each needs to be considered separately.
Role |
Description |
Settlor |
Does not usually receive income from the trust, but the deprivation provisions may apply. |
Contributor |
May receive income from interest on loans. The deprivation of income provisions may apply. Deeming applies to the:
|
Beneficiary |
May receive distribution of income or capital at the discretion of the trustee. Further information on assessment of income to trust beneficiaries is provided in this topic. |
Trustee |
May receive wages, fees, or salary. The current rate payable is held as on-going income. Reimbursement of 'out of pocket' annual expenses is not income. |
Distribution of income to beneficiaries is maintained for 12 months. A beneficiary who received a trust distribution of an amount in one year may not automatically receive a distribution of the trust's profits in the following year. Distribution of profits from discretionary trusts are treated as non-periodical income.
A person who is a beneficiary of a discretionary trust [4] has no rights to the trust's income, even if they are also trustees. A beneficiary receives a distribution solely at the trustee's discretion in accordance with the terms of the trust deed.
A beneficiary is entitled to receive an amount under a discretionary trust when the trustee exercises their power under the trust deed and makes a resolution to distribute in favour of the beneficiary. Allocations and distributions are assessed as income for 12 months from the date of the resolution to distribute. There may be instances where a resolution to distribute was made but the trust's tax return has not been lodged at the time of resolution. Where this is the case, the onus is on the person to find out how much they are entitled to receive. Distribution income should still be assessed from the date the resolution was made and not from the date the tax return was lodged. An example would be where a resolution was made on 1 July 2001, but the tax return was done on 1 October 2001. The person, as trustee, may know of the distribution prior to receipt, or may be ignorant of the distribution until it is paid. In either case, assessment is from the date of resolution which is the 1 July 2001.
A person is entitled to receive the amount when they have an absolute vested interest in the amount and are legally able to demand payment of the amount. A person cannot demand payment of an unspecified amount and therefore is entitled to receive the amount only when a figure is specified. Where there has been a resolution to distribute an unspecified amount, the distribution only becomes assessable when the person becomes entitled to legally demand a specific amount.
A trustee makes a resolution in July to make a profit distribution of $700 to one person, and total profit less $700 to another. In October the accountant has determined the profit of the trust to be $1,000. The first person has a legally enforceable right to $700 from July, and this amount is assessed from then. The other person is assessed when their exact entitlement becomes known, so their $300 is assessed from October.
A discretionary trust is a private trust set up by an individual or individuals either to:
In virtually all cases the trust deed gives absolute discretion to the trustee to distribute both income and capital among the beneficiaries as he or she sees fit.
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [10], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [10], trustee has the same meaning as in the Income Tax Assessment Act 1997 [11].
A deprived asset is an asset:
A discretionary trust is a private trust set up by an individual or individuals either to:
In virtually all cases the trust deed gives absolute discretion to the trustee to distribute both income and capital among the beneficiaries as he or she sees fit.
If a person and/or their partner are beneficiaries of a discretionary trust [4], no part of the value of the trust's assets [4] is assessable, until the trustee [4] makes a distribution from the capital of the trust. This is because there is no way of apportioning a share of the assets of the trust to any particular beneficiary until the trustee has exercised their discretionary powers. When the assets of the trust are distributed to its beneficiaries, the amount received is an asset if it is not otherwise exempt. An example is the principal residence.
The following table describes how the assets from a discretionary trust are assessed.
If a person is... |
Then they... |
a co-beneficiary of the assets of a discretionary trust |
have an asset, however no value is placed on the asset for assessment purposes. The person's interest in the asset is dependent on the trustee deciding in what proportion to distribute the trust's assets. |
the sole beneficiary of the assets of a discretionary trust |
are generally considered to have the beneficial ownership of the trust's assets for assessment purposes. The terms of the trust deed must state that the person has an absolute interest in the distribution of the trust's assets before they can be assessed as the person's. |
If a couple are the only beneficiaries of a discretionary trust, and the trust's assets are not exempt:
The following table describes the roles of individuals within a trust and the treatment of their trust related assets. A person may have more than one role and each needs to be considered separately.
Role |
Description |
Settlor |
Is not usually entitled to a share of the trust assets, but deprivation of assets provisions may apply for gifts to the trust. |
Contributor |
Loans made to the trust are assessable assets, and deprivation of assets may apply for gifts to the trust. |
Beneficiary |
Has an interest in the assets of the trust at the trustee's discretion, therefore no amount is held as an assessable asset. Exception: Sole beneficiaries or a married couple who are the only 2 beneficiaries. |
Trustee |
Is not entitled to a share of the trust assets unless also a beneficiary, although asset(s) may be registered in their name. |
The following table summarises the assessment of assets from private discretionary trusts for pensions.
Type of Asset |
Description |
Interest in the trust's assets |
Do not assess the trust's assets as assets of the person. The person has no entitlement until the assets are distributed by the trustee. |
Beneficiary account |
Assess as a financial asset of the person. The money is put in the account by the trust usually as reinvested trust distributions or interest. These may be called beneficiary loan accounts, current accounts or beneficiary current accounts. VEA ? [16] |
Loan to a trust |
Assess as a financial asset of the person. The money has been loaned to the trust by the person. These may also be called beneficiary loan accounts or loans. |
Assets gifted to a trust |
Maintain the amount that was disposed of as a deprived asset for 5 years from the date of disposal, less the allowable gifting limit. |
A discretionary trust is a private trust set up by an individual or individuals either to:
In virtually all cases the trust deed gives absolute discretion to the trustee to distribute both income and capital among the beneficiaries as he or she sees fit.
An asset means any property, including property outside Australia.
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [10], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [10], trustee has the same meaning as in the Income Tax Assessment Act 1997 [11].
Beneficiaries of non-discretionary trusts [4] may have an interest in the trust's income depending on the nature and terms of the trust deed. The share of the trust's income that is allocated or distributed by the trustee [4](s) to a beneficiary is assessable income. Allocations and distributions are assessed as income for 12 months.
More ? [19]
The following table describes the assessment of trust income that includes franking credits (known as imputation credits).
If a person is... |
Then the... |
a pensioner |
|
The following table describes the roles of individuals within the trust and the treatment of their trust related income. A person may have more than one role and each needs to be considered separately.
Role |
Description |
Settlor |
Does not usually receive income from the trust, but the deprivation of income provisions may apply to loans or gifts. |
Contributor |
May receive income from interest on loans. Deeming applies to the:
|
Beneficiary |
Is entitled to a fixed proportion of the distribution of income from the trust. This is held as income for 12 months from the date of distribution. |
Trustee |
May receive wages, fees, or salary. The current rate payable is held as on-going income. 'Out of pocket' annual basis expenses are not income. |
A non-discretionary trust is a trust for which the terms of the trust deed do not give the trustee discretion about whether to:
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [10], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [10], trustee has the same meaning as in the Income Tax Assessment Act 1997 [11].
A deprived asset is an asset:
The following table describes how the assets from a non-discretionary trust are assessed.
If a person is... |
Then they... |
a co-beneficiary of the assets of a non-discretionary trust |
have an asset. The value of the asset is determined by the share of the trust held by each beneficiary, as set out in the trust deed. Example: If a person is one of 5 beneficiaries of a trust that has $100,000 in assets and the terms of the trust provide that the beneficiaries have an equal interest, then the value of each beneficiary's interest is $20,000. |
the sole beneficiary of the assets of a non-discretionary trust |
have the beneficial ownership of the trust's assets which are considered to be theirs, unless the assets are exempt. |
The following table describes the roles of individuals within the trust and the treatment of their trust related assets. A person may have more than one role and each needs to be considered separately.
Role |
Description |
Settlor |
Is not usually entitled to a share of the trust assets, but deprivation of assets provisions may apply for gifts to the trust. |
Contributor |
Loans made to the trust are assessable assets, and deprivation of assets may apply for gifts to the trust. Deeming applies to the balances of outstanding loans to the trust. |
Beneficiary |
Assessment is based on the total asset value divided by the person's share of ownership, as specified in the trust deed. |
Trustee [4] |
Is not entitled to a share of the trust assets unless they are also a beneficiary, although asset(s) may be registered in their name. |
The following table summarises the assessment of assets from non-discretionary trusts, for pensions.
Type of Asset |
Description |
Interest on the trust's assets |
Assess using the amount or proportion set out in the trust deed. |
Beneficiary account |
Assess as a financial asset of the person. The money is put in the account by the trust usually as reinvested trust distributions or interest. These may be called beneficiary loan accounts, current accounts or beneficiary current accounts. |
Loan to a trust |
Assess as a financial asset of the person. The person has loaned the money to the trust. These may also be called beneficiary loan accounts or loans. |
Gifting to a non-discretionary trust by a beneficiary or unit holder |
The amount of the deprivation is the difference between the value of the asset(s) gifted and any resulting increase in the value of the person's interest in the trust's assets, less the allowable gifting amount. More ? [23] |
Assets gifted to a trust |
Maintain the amount that was disposed of as a deprived asset for 5 years from the date of disposal, less the allowable gifting limit. |
Managed investments and shares sold/transferred to the trust |
Deprivation provisions may apply if adequate financial consideration [4] is not received. |
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [10], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [10], trustee has the same meaning as in the Income Tax Assessment Act 1997 [11].
For adequate financial consideration to be received when disposing of an asset [4], a person must receive value in the form of money or assets. Adequate financial consideration can be accepted when the amounts received reasonably equate to the market value of the asset. It may be necessary to obtain a valuation from a property valuation service provider.
When disposing of income [4], in order for adequate financial consideration to be received, the person must receive money, goods or services which approximate in value to the rate of disposed income. If a person disposes of an income producing asset and receives adequate financial consideration in money or money's worth for the asset, then it can be accepted that they have received adequate financial consideration for the disposal of both the income and the asset.
The following table summarises the assessment of income from discretionary [4] and non-discretionary trusts [4]. Assessable income from only one or the other kind of trust is covered elsewhere in this section.
Assessable Income |
Description |
Trust profit |
The trust's profit is not assessed. Only income paid to the person and deeming are assessed. |
Distributions |
The distributions are maintained as income for 12 months from the date of resolution to distribute. Distributions are shown in the:
Imputation credits paid with distributions are income for the purposes of the pension income test. |
Unpaid distributions (Distributions not received by the beneficiary but held in the trust.) |
Not a financial investment, and therefore, not subject to deeming. VEA ? [27] |
Wages or salary |
The trust may pay wages or salary to the person. As with any wages or salary, the amount assessed as income is the current rate of earnings converted to an annual figure. |
Loan to trust |
The balance is added to the person's other financial assets and is subject to deeming. VEA ? [28] |
Assets gifted to the trust |
Deeming provisions apply and deprived assets [4] are maintained in the assessment. |
Managed investments and shares sold/transferred to the trust |
Deemed income is assessed in respect of any deprivation, if the person has not received adequate financial consideration [4]. |
Consultant's fees |
Are assessed as the:
|
Fees paid for the use of plant or equipment owned by a person |
Are assessed as income. |
Rent paid to a person |
Is assessed as rental income. Allowable deductions reduce the assessable amount. More ? [29] |
Trustee's remuneration |
Is assessed as the amount stated on the most recent:
|
A discretionary trust is a private trust set up by an individual or individuals either to:
In virtually all cases the trust deed gives absolute discretion to the trustee to distribute both income and capital among the beneficiaries as he or she sees fit.
A non-discretionary trust is a trust for which the terms of the trust deed do not give the trustee discretion about whether to:
A deprived asset is an asset:
For adequate financial consideration to be received when disposing of an asset [4], a person must receive value in the form of money or assets. Adequate financial consideration can be accepted when the amounts received reasonably equate to the market value of the asset. It may be necessary to obtain a valuation from a property valuation service provider.
When disposing of income [4], in order for adequate financial consideration to be received, the person must receive money, goods or services which approximate in value to the rate of disposed income. If a person disposes of an income producing asset and receives adequate financial consideration in money or money's worth for the asset, then it can be accepted that they have received adequate financial consideration for the disposal of both the income and the asset.
The following table describes the assessment of income from statutory trusts [4].
If money is held by a public trustee or similar body... |
Then... |
on behalf of an individual person |
the interest generated by its investment is the person's income. This is regardless of whether individual investment accounts are maintained or whether the property is held in a 'common fund'. |
and no specific amount is held for the benefit of an individual person Example: The property is held in common for the person and their children. |
any interest credited to the investment account is not assessed as the person's income, until distributed or allocated to them. |
One-off payments made from the capital funds held by the trust are not taken into account as income.
Example: Distributions to enable modifications to be made to the person's principal residence to assist with their disability.
The following table describes the assessment of assets from statutory trusts.
If money is held by a public trustee or similar body... |
Then... |
on behalf of an individual person |
the full value of that money is the person's asset. Explanation: This is regardless of whether individual investment accounts are maintained or whether the property is held in a 'common fund'. |
and a payment is made to a person out of the money held by the statutory trust and no specific amount is held for the benefit of an individual person, Example: The property is held in common for the person and their children. |
that payment is the person's interest, the asset in the account is an exempt asset. |
One-off payments made from the capital funds held by the trust are the person's property and are assessed as an asset. The amount that is assessed as the assets held by the trust must be reduced by the amount of the payment.
Example: Distributions to purchase a vehicle for the person. The vehicle is the person's asset,
Payments to minors may be held on their behalf in a statutory trust.
Examples: Payments could include:
Money held in a statutory trust, on behalf of a minor, is the property of the minor, and interest credited to the account is their income.
Statutory trusts are:
created by law,
usually established to look after the affairs of a customer who is incapable, or legally unable to attend to their own affairs, and
exist if property is held by:
Explanation: Although the description of 'statutory trust' is applied, a trust in the strictest sense is not created. The Federal Court in Flannery v Secretary of the Department of Family and Community Services has recognised the public trustees and similar bodies are managers rather than trustees of property.
Damages is the economic value of something lost or withheld. For compensation purposes, damages is the sum awarded for any loss or injury that has been sustained.
A court may decide that a trust exists due to the conduct of the relevant parties, although no action has been taken to declare a trust in writing.
Example: These trusts include:
VEA ? [36]
If one of these trusts exists, determine the role of the person in the trust and assess the trust income and assets according to that role. The following table outlines the 2 roles that a person may play in these trusts and how to assess them.
Role |
Assessment |
Trustee |
Although the legal owner of assets, they do not have beneficial ownership, therefore no asset is assessable. Deprivation provisions may apply. More ? [37] |
Beneficial owner |
Assessment is based on the person's share of the beneficial ownership of the assets. |
Any asset held in trust by a person for any other person or child, cannot be regarded as the person's asset. Assets held in trust for children are not treated differently to assets held for any other person. Ownership of the asset belongs to the beneficial owner, not the trustee [4].
A person can establish a trust by opening a bank account as trustee for another person. For example a bank account could be opened on behalf of a child or any other person. The following table describes assessment of bank accounts held in trust.
If a person... |
Then... |
transfers money to a trust account |
it is the property of the beneficiary(s), along with interest credited to the account. The deprivation of income and assets provisions may apply. |
as trustee of the account, is using the account for personal benefit |
the balance of the account is assessed as the trustee's asset, and is subject to deeming. In these cases it cannot be accepted that a trust has been created. |
The person is legally obliged in the same way as other trustees to use the trust's assets for the benefit of the beneficiary(s).
A person who loans assets to a trust retains ownership of the assets, which are assessed in the same way as other amounts on loan. The loan will be reflected as a liability in the trust's balance sheet.
Disposal of assets may have occurred if a person gifts assets to a trust within 5 years of becoming qualified to receive a pension. The disposal may be subject to deeming.
Trustee has two meanings depending on the context, (i) and (ii).
(i) a person who looks after someone else's affairs
According to section 202 of the VEA [10], a trustee is a person appointed by the Commission to administer the financial affairs of a pensioner who may be incapable of managing their own affairs for reasons such as:
These criteria include circumstances where a pensioner has a psychiatric disorder or a mental illness as a result of alcohol or drug addiction.
A trustee can be appointed, with or without the consent of the pensioner and once appointed, a trustee has full control of the pension payment.
(ii) a person responsible for administration of a trust
According to section 52ZO of the VEA [10], trustee has the same meaning as in the Income Tax Assessment Act 1997 [11].
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