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INCOME TAX ASSESSMENT ACT 1997 - SECT 115.110

Foreign or temporary residents--individuals with trust gains

Object

  (1)   The object of this section (with section   115 - 115) is to adjust the discount percentage so as to deny you a discount for a * capital gain you make because of section   115 - 215 to the extent that the gain was accrued while you were a foreign resident or * temporary resident.

When this section applies

  (2)   This section applies to a * discount capital gain if:

  (a)   you are an individual and a beneficiary of a trust ( your trust ); and

  (b)   because of section   115 - 215, Division   102 applies to you as if you had made the discount capital gain on a particular day ( your gain day ) for a * capital gain (the relevant trust gain ) of the trust estate; and

  (c)   the period (the discount testing period ) worked out from the following table ends after 8   May 2012; and

  (d)   you were a foreign resident or * temporary resident during some or all of so much of that period as is after 8   May 2012.

 

Working out the discount testing period

Item

Column 1

If this is the case:

Column 2

the discount testing period is:

1

your trust is a * fixed trust

the period:

(a) starting on the most recent day (before your gain day) that you became a beneficiary of your trust; and

(b) ending on your gain day.

2

your trust is not a * fixed trust and the relevant trust gain:

(a) is made because a * CGT event happened in relation to a * CGT asset * acquired by the trustee of your trust; or

(b) is referable (either directly or indirectly through one or more interposed trusts that are not fixed trusts) to a * capital gain made by the trustee of another trust that is not a fixed trust because a CGT event happened in relation to a CGT asset acquired by that trustee

the period:

(a) starting on the day of that acquisition; and

(b) ending on your gain day.

3

your trust is not a * fixed trust and the relevant trust gain is referable (either directly or indirectly through one or more interposed trusts that are not fixed trusts) to a * capital gain made by a fixed trust

the period:

(a) starting on the most recent day (before your gain day) that the trust whose capital gain is directly referable to the capital gain made by the fixed trust became a beneficiary of the fixed trust; and

(b) ending on your gain day.

Note:   Section   115 - 30 has special rules about when assets (including membership interests in trusts) are acquired.

Changed residency status

  (3)   For the purposes of this section and section   115 - 115, if:

  (a)   your trust is a * fixed trust and another individual owned your * membership interest in your trust on a particular day before the discount testing period ends; and

  (b)   on that day, that individual was one of the following (that individual's residency status ):

  (i)   an Australian resident (but not a * temporary resident);

  (ii)   a temporary resident;

  (iii)   a foreign resident; and

  (c)   section   115 - 30 treats you as having * acquired your membership interest in your trust when that individual, or an earlier owner of that membership interest, acquired it;

you are treated as having the same residency status on that day as that individual had on that day.


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