29/11/2016

Whether a trust is a fixed trust or not has significant taxation implications.

In relation to tax losses, if the trust is not a fixed trust it will have more stringent tests to satisfy before the tax losses can be claimed as a deduction.  

In relation to superannuation taxation, if a super fund invests in a trust which is not a fixed trust, then trust distributions to the superannuation fund may be taxed at 47% and not at the concessional tax rate of 15% which applies to superannuation funds.

Many taxpayers identify fixed trusts with unit trusts and therefore assume that if the trust is a unit trust it is necessarily a fixed trust.  Unfortunately, this is not the case.  

The tax laws have a very precise and restrictive definition of a fixed trust.  Essentially, every beneficiary must have fixed entitlement to the income and capital of the trust, and that fixed entitlement must not be able to be defeated, removed or adversely affected by actions of the trustee or any third party.  This definition is so restrictive that almost all unit trusts would not qualify as fixed trusts.  Fortunately, tax law allows the Commissioner a discretion to treat unit trusts as fixed trust.  

New draft guidelines have now been issued as to the attitude the Commissioner is likely to take in relation to typical aspects of unit trusts which, strictly, will cause them not to satisfy the very strict definition.  The new guidelines provide some assurance that the Commissioner will provide practical accommodation to treat unit trusts as fixed trusts.  

For example, a power to issue new units will not disqualify a unit trust as a fixed trust if the new units can only be issued at net market value.  A power to redeem units (without the consent of the unitholder) will not disqualify the unit trust as a fixed trust if the redemption occurs at net market value and is in the best interests of the unitholders.  

While some comfort can be taken from the guidelines, it’s important to understand that unit trusts are not automatically fixed trusts for income tax purposes.

If there is a significant risk that the trust will incur tax losses (for example, in the initial years of operation) or, if an investor is likely to be a superannuation fund, then the terms of the trust deed must be carefully drafted to minimise the risk that the unit trust is not a fixed trust and to reduce the need to rely on the Commissioner favourably exercising his discretion: what Caesar confers, Caesar can take back.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.