With thanks to the Television Education Network, today’s post considers the above mentioned topic in a vidcast.
As usual, an edited transcript of the presentation is below:
When we’re dealing with a discretionary trust, one of the first things we need to do is to identify who the beneficiaries are.
Is our client (or their spouse) in fact a beneficiary of the trust that we’re dealing with?
There are some common tricks and common issues that we should be keeping an eye out for, including ensuring we have identified all variations to the deed since establishment.
We also need to be aware of a case by the name of Yazbek, which outlines the approach that the courts take when they are asked to consider who the beneficiaries of a trust are.
Yazbek is significant because the court confirmed that a person who is eligible under a trust deed to receive income or capital from a trust is a beneficiary, notwithstanding that they may not have actually received anything from the trust at that point in time.
The Yazbek decision was handed down in the context of an assessment which had been issued to an individual beneficiary.
The ATO normally has a two-year period after that assessment was issued in which to issue an amended assessment (where they have identified some additional tax they believe should have been included in the taxpayer’s return).
However that standard two-year window is extended to four years where the individual involved is the beneficiary of a trust.
In Yazbek, ATO was trying to issue an amended assessment three years after the original assessment had been issued. So it was outside the two-year window, but within the four-year window.
The taxpayer in Yazbek hadn't received any distributions from the discretionary trust that the ATO contended he was a beneficiary of.
This was a discretionary trust which was controlled by other family members.
He was included in a wide class of discretionary beneficiaries, but had not actually received anything.
His contention was that in order to be a beneficiary of a trust, he needed to have actually received something from it.
Now the court was quite quick to shut that argument down and said that even if a person has not received any income or capital from the trust for the entire period it has existed, if they are within a class of persons who are eligible to receive income or capital at the trustee’s discretion, they are still a beneficiary of the trust.