Bills Digest No. 136   1997-98 Taxation Laws Amendment Bill (No. 6) 1997

Numerical Index | Alphabetical Index

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.


Passage History
Main Provisions
Concluding Comments
Contact Officer and Copyright Details

Passage History

Taxation Laws Amendment Bill (No. 6) 1997

Date Introduced: 29 October 1997

House: House of Representatives

Portfolio: Treasury

Commencement: The Act which may be cited as the Taxation Laws Amendment Act (No. 6) 1997, commences on the day it receives Royal Assent. The amendments made to specified Acts commence on the date specified in each Schedule to the Bill and will be indicated under the main provisions of each Schedule in this Bills Digest.


The purpose of the Bill is to introduce the following measures.

  • Deny deductibility of certain capital losses artificially created by large corporate groups in a scheme of tax avoidance, as announced by the Treasurer on 29 April 1997 (Schedule 1 of the Bill and Chapter 1 of the Explanatory Memorandum).
  • Align company loss and debt deduction provisions with two concessional rules which will be available to trusts under the proposals in the Taxation Laws Amendment (Trust Loss and Other Deductions) Bill 1997 (Schedule 2 of the Bill, Chapter 2 of the Explanatory Memorandum and Bills Digest No. 98 of 1997-98).
  • Implement Government's response(1) to the recommendations of the Small Business Deregulation Task Force made in November 1996 in relation to fringe benefits tax (FBT) for small business by: simplifying and extending the existing exemption of taxi travel; exempting car parking benefits and simplifying the 'arranger' provisions (Schedule 3 of the Bill and Chapter 3 of the Explanatory Memorandum).
  • Overcome a deficiency in the sales tax law which allows the avoidance of sales tax on goods originally imported on a temporary basis pending export and subsequently re-importing them. This measure was announced by the Treasurer in the 1997-98 Budget on 13 May 1997 (Schedule 4 of the Bill and Chapter 4 of the Explanatory Memorandum).
  • Assist company tax instalment taxpayers classified as 'small' by allowing them to pay their final tax liability for an income year later than currently required (Schedule 5 of the Bill and Chapter 5 of the Explanatory Memorandum).
  • Remove the unintended advantage that life insurance companies presently have on the tax treatment of franking credits and debits in respect of Retirement Savings Accounts (RSAs) in comparison with entities such as banks, building societies and credit unions which also offer RSAs to customers (Schedule 6 of the Bill and Chapter 6 of the Explanatory Memorandum).
  • Prevent taxpayers from including an amount of expenditure in the cost base or indexed cost base of an asset for capital gains/loss purposes, if such expenditure has qualified for a deduction for income tax purposes, in accordance with the announcement by the Treasurer in the 1997-98 Budget on 13 May 1997 (Schedule 7 of the Bill and Chapter 7 of the Explanatory Memorandum).
  • Correct a deficiency in the current formula used to calculate the passive income of controlled foreign companies of Australian life and general insurance companies (Schedule 8 and Chapter 8 of the Explanatory Memorandum).
  • Ensure that life insurance companies use average calculated liabilities, instead of liabilities at the end of the year of income, as the basis of determining income from annuity policies and income that is attributable to policies issued by overseas branches (Schedule 9 of the Bill and Chapter 9 of the Explanatory Memorandum).
  • Clarify the operation of the depreciation provisions for periods prior to 3 July 1995 when an exempt entity becomes subject to tax on any part of its income, for any reason (Schedule 10 of the Bill and Chapter 10 of the Explanatory Memorandum).


As the Bill deals with disparate measures in each Schedule, for ease of reference, the background to the measures with significant revenue impact will be discussed with the main provisions.

Main Provisions

Schedule 1 - Denial of Certain Artificial Capital Losses

At 3 pm on 29 April 1997, the Treasurer announced(2) that recent audit activities by the Australian Taxation Office (ATO), have revealed flaws in the existing law which allow large corporate groups to artificially multiply an actual economic loss several times over. This was possible through manipulation of the capital gains tax (CGT) provisions relating to rollover relief available on the transfer of an asset from one company to another related company. The artificial losses including the actual economic loss are then set off against any subsequent actual capital gains to reduce the amount of CGT payable on the actual capital gains.

An example of how losses can be artificially created was included in the attachment to the Press Release of 29 April 1997. This example illustrates how an actual economic loss of $0.7 billion incurred by one company in a chain of companies can be artificially increased to $3.5 billion, by liquidating in succession 4 interposed companies in the group of companies - the liquidation of each company giving rise to an additional artificial loss of $0.7 billion. The Explanatory Memorandum(3) too gives a similar example involving the liquidation of two companies whereby the actual economic loss of $0.7 billion is increased artificially to $2.1 billion by the liquidation of two companies in the chain of companies. This technique is referred to as unbundling group companies in a 'chain' before liquidating that chain.

This technique of artificially creating capital losses is made possible mainly by the potential for manipulating the rollover relief provisions in section 160ZZO of Part 111A the Income Tax Assessment Act 1936 (ITAA 1936) dealing with capital gains. Section 160ZZO provides that where an asset is transferred from a company to a related company, the general capital gains tax provisions do not apply to the disposal and acquisition. Instead, the company acquiring the asset is considered to have acquired it at the time and for the cost base or reduced cost base that applied to the company disposing of the asset. The Bill seeks to prevent the abuse of section 160ZZO by the specific provisions of Part 1 of Schedule 1. It is also envisaged that other provisions of Part 111A of ITAA 1936, could also be used to create artificial capital losses. To prevent such abuse the Bill strengthens the general anti-avoidance provisions in Part IVA of ITAA 1936 by the provisions in Part 2 of Schedule I.

Part 1 of Schedule 1 as mentioned earlier is a specific anti-avoidance provision and inserts proposed section 160ZPA which denies the use of certain capital losses incurred by a company. Part 1 does not apply if the company is a small business. The small business test provided in paragraph 160ZPA(4)(a)is that the sum of the net value of the assets of the company making the rollover loss as well as the net value of the assets of

entities connected with the company and associate partners do not exceed $5 million. Part 1 does not also apply where the asset which would create the loss is plant, machinery or building

used in a manufacturing business immediately both before and after the transfer and the transferee company used the asset for at least 12 months after the asset was transferred (proposed paragraph 160ZPA(5)(b)).

Part 2 of Schedule 1 amends Part IVA of the ITAA 1936 to enable it to apply to capital losses in the year in which they are created, rather than when a capital loss is set off against capital gains in that income year or a later income year. Part IVA contains the general anti-avoidance provisions and it confers on the Commissioner the power to cancel tax benefits under subsection 177F(1) when certain criteria set out in that Part are satisfied. Proposed paragraph 177C(1)(ba) extends the definition of 'tax benefit' to include a capital loss created by a scheme. Where a tax benefit is denied to one taxpayer under subsection 177F(1), the Commissioner has also the power under subsection 177F(3) to make compensating adjustments to another taxpayer if a different benefit would have arisen if the scheme had not been entered into. Item 9inserts proposed paragraph 177F(1)(c) to authorise the Commissioner to cancel a tax benefit which is referable to a capital loss and proposed paragraph 177F(3)(c) authorises the Commissioner to make a consequential compensating adjustment in respect of any taxpayer. Item 12 amends subsection 177F(2G) to enable a taxpayer to object against a determination in relation to the cancellation of a capital loss.

It may be argued that the arrangements should be caught by the general anti-avoidance provisions contained in Part IVA of the ITAA 1936, particularly as the application of Part IVA was considerably expanded in the recent High Court decision in Spotless Services Ltd v Federal Commissioner of Taxation(4). However, as the operation of Part IVA depends on the existence of a scheme, it may also be argued that such transactions are not part of a scheme by an individual taxpayer and so are not covered by Part IVA. While the introduction of specific anti-avoidance schemes may be necessary in circumstances such as those addressed by this area of the Bill to ensure that schemes by large corporations will be 'caught' if there are doubts about the application of Part IVA, it will add to the complexity and compliance costs of all taxpayers. In this connection it should be noted that while Part 1 does not apply to small business and manufacturing business assets, there is no such exclusion of small business and manufacturing business assets from the operation of Part 2 which amends Part IVA. The applicability of Part 2 to small businesses may add to their compliance costs.

Financial Impact

The Explanatory Memorandum states that the measures will protect approximately $100 million in revenue per year, commencing in 1997-98.


Part 1 will apply where the rollover of the asset subsequently disposed of occurred before 3 pm on 29 April 1997.

Part 2 will apply to capital losses resulting from schemes entered into after 3 pm on 29 April 1997. Where both measures could apply Part 1would apply before Part 2.

Schedule 2 - Concessional Tracing Rules for Company Loss etc. Provisions

Under the income tax law a company has to satisfy certain tests before prior year losses can be recouped in a later year of income. These tests are contained in sections 80A to 80F of the ITAA 1936 and Divisions 165, 166 and 175 of the ITAA 1997. The company can carry forward a loss if there is continuity of majority beneficial ownership of certain dividend, capital and voting rights of the company in the year the loss is incurred as well as in the year when the loss is recouped or set off against profits. This is referred to as the continuity of ownership test. Where the continuity of ownership test is not met, the company can carry forward a loss, if among other things, it carries on the same business as it carried on at the time of change in ownership. This is referred to as the same business test. Similar tests apply to limit the deductibility of a company's current year losses in sections 50A to 50N of the ITAA 1936 and Divisions 165, 166 and 175 of the ITAA 1997. The bad debt deduction rules, which are similar to the prior year losses provisions, are contained in sections 63A to 63C of the ITAA 1936. It is relevant to note that as part of the Tax Law Improvement Project (TLIP), the ITAA 1997 contains the rewritten company loss provisions applicable from the 1997-98 income years. For income years prior to 1997-98 the provisions of the ITAA 1936 apply. The company debt deduction provisions have not been re-written as yet.

The continuity of ownership tests contain rules for tracing ownership through interposed entities where some of the shares in a company are held otherwise than by natural persons. Where an interposed entity is a discretionary trust, tracing of beneficial owners cannot occur as beneficiaries of a discretionary trust do not have fixed interests in the income or capital of the company or an interposed entity. Thus a company is unable to carry forward losses where 50% or more of the interests in a company are held by a discretionary trust or trusts including family discretionary trusts. This is referred to as the 50% stake test. The same business test is not available to a company where the majority of shares are held by discretionary trusts.

The Taxation Laws Amendment (Trust Loss and Other Deductions) Bill 1997 (trust losses Bill) which was introduced into Parliament on 1 October 1997 proposes to insert Schedule 2F into the ITAA 1936. The proposed Schedule 2F contains rules to restrict the recoupment of prior year and current year losses and debt deductions of trusts. However, there are concessional tracing rules in Schedule 2F which are available to family trusts. The amendments in Schedule 2of the Bill will make available to companies two of these concessional tracing rules that are available to trusts. The two concessions are the family trust concession and the alternative condition.

The Family Trust Concession

Part 1 of Schedule 2 will make amendments to the ITAA 1936 and the ITAA 1997 so that the family trust concession will be available to companies. Part 2 of Schedule 2 makes amendments to Schedule 2F of the trust losses Bill which are necessary to complement the extension of the family trust concession to companies.

Under proposed subparagraph 50H(7)(a)(ii) to ITAA 1936 if a family trust owns or has an interest in any of the shares of a company, the trustee will be deemed to have a shareholding interest and be deemed the beneficial owner of shares in the company. If the trustee is a company, it will be treated as having the same ownership rights as a natural person. This ensures that the 50% stake test is satisfied if a discretionary family trust controls a company for the purpose of the prior year and current year loss rules in ITAA 1936. Proposed subsection 175-65(1)will have the same effect for the purpose of the prior year and current year loss rules in ITAA 1997. Proposed subsection 63A(6A) will provide that that the trustee of a family trust that owns shares in a company will be taken to beneficially own the shares for the purposes of the debt deduction rules.

The Alternative Condition

This Bill will make amendments to the ITAA 1936 and the ITAA 1997 to enable the alternative condition that is available to fixed trusts under the trust losses Bill to be available to companies under Part 3 of Schedule 2. The Bill will make amendments to the ITAA 1936 for the purpose of the current year loss rules and debt deduction provisions. It will also make amendments to the ITAA 1997 for the purpose of the prior year and current year loss rules. The tests contained in the 'alternative condition' were dealt with in Bills Digest No. 98 of 1997-98 to which reference is invited.(5)

Non-resident Trusts

Provisions are included in the Bill to ensure that the trust loss and company loss measures cannot be avoided where non-resident trusts are concerned. The Bill also includes provisions to enable the Commissioner to require a company to give information about present entitlement to, or distributions of, income or capital of non-resident family trusts that hold interests in the company.

Regulation Impact Statement

The Regulation Impact Statement(6) makes an assessment of the costs and benefits of the measures in Schedule 2. The salient features of this assessment are as follows.

  • The cost to revenue of extending the family trust tracing concession will be in the order of $10 million per year. The loss to revenue associated with the alternative condition concession will be negligible.
  • The companies that will be affected are those which have deductions including prior year losses. The total number of companies with prior year losses in 1995-96 was 75 000.
  • There will be some initial compliance costs as trusts elect to be family trusts for the purpose of ensuring that associated companies benefit from the family tax concession to companies, but this will be minimal as many of these trusts will have made this election under the measures in the trust losses Bill. There will be some costs to companies in monitoring whether non-fixed trusts with interests in a company will pass the tests that apply under the trust loss measures for the purpose of securing the alternative condition concession.
  • The measures will also affect the ATO which administers these measures but it is estimated that the additional cost to the ATO will be minimal.

It is relevant to note that the Taxation Laws Amendment (Trust Loss and Other Deductions) Bill 1997 and three complementary Bill: Family Trust Distribution Tax (Primary Liability) Bill 1997; Family Trust Distribution Tax (Secondary Liability) Bill 1997 and the Medicare Levy Consequential Amendment (Trust Loss) Bill 1997 were the subject of a report by the Senate Economics Legislation Committee in December 1997. In view of the significance of the recommendations and observations in the majority and minority reports to the taxation of trusts generally, in the context of the Tax Reform agenda, the 'concluding comments' of this Bills Digest deals with these aspects.


The amendments will take effect generally to company losses and debts incurred in 1996-97 or later years of income. These amendments were announced in the 1996-97 Budget of 20 August 1996.

Schedule 3 - Amendments to the Fringe Benefits Tax

In implementing Government's response to the recommendations of the Small Business Deregulation Task Force the amendments to the Fringe Benefits Tax Assessment Act 1986 (FBTAA) provide for three measures.

  • The existing exemption for taxi travel under section 58Z(1) will be extended so that taxi travel beginning or ending at an employee's place of work at any time of the day qualifies for the exemption under the proposed subsection 58Z(1) which replaces existing subsection 58Z(1). The Regulation Impact Statement(7) states that the revenue impact of the simplified taxi travel exemption is not quantifiable but it is not expected to be large. The amendments apply in relation to assessments for the FBT year commencing 1 April 1997 and later years.
  • Division 10A of Part 111 of the FBTAA subjects car parking benefits to FBT. Under the proposed section 58GAcertain car parking benefits other than those provided in a commercial car parking station will be exempt from FBT. To qualify for the exemption the employer of the employee must not: be a public company or a government body or have a sum of ordinary income and statutory income of $10 million or more in the year of income immediately before the commencement of the FBT year. The restrictions on income tax deductions for car parking expenses incurred by self-employed persons, partnerships and trusts will be removed for the sake of consistency of income tax and FBT treatment of car parking. The Regulation Impact Statement(8) provides that the exemption of car parking by small business employers is expected to have an ongoing revenue cost of $35 million from 1997-98.
  • A fringe benefit includes a benefit derived by an employee where the employer arranges with a third party for the provision of that benefit to the employee. The provisions of the FBTAA covering such benefits are referred to as the 'arranger' provisions. Proposed paragraph (ea) to subsection 136(1) is intended to simplify the arranger provisions and to make it easier for employers to determine whether they are liable for FBT for benefits provided by third parties to their employees. The Revenue Impact Statement(9) states that the revenue implications of this measure are negligible. This measure will be effective from 1 April 1998.

Schedule 4 - Temporary Importation of Goods

Wholesale sales tax (WST) applies to assessable dealings with goods produced in Australia or imported into Australia. Goods previously used in Australia are not liable to the WST. However, under the law goods can be imported for periods of less than 12 months free of WST under the special temporary importation provisions. These provisions have been abused to avoid WST by exporting such goods and re-importing them back on a permanent basis. Such re-imported goods are not liable to the WST being goods previously used in Australia. Proposed sections 9Band 51A to the Sales Tax Assessment Act 1992 seek to prevent this abuse. The amendments apply to the re-importation of certain goods which occurred after 7.30 pm by legal time in the Australian Capital Territory on 13 May 1997. The Explanatory Memorandum states that the estimated gain in revenue is $2 million per year from 1997-98 to 2000-2001.

Schedule 5 - Payments of Tax by Small Companies

Under the existing company tax instalment system, a company classified as small (ie. likely tax of less than $8 000) is required to make payment of tax in a single instalment. Thus, a small company with a 30 June balance date must pay the tax due on 1 December following the end of the income year. For companies classified as medium (ie likely tax between $8 000 and $300 000) or large (ie likely tax greater than $300 000), quarterly instalments of tax are required to be paid earlier than the payment schedule that applies to companies classified as small. However, under special administrative arrangements, a small company with a 30 June balance date pays its likely tax on 15 December and the balance, if any, together with the lodgment of its return on the following 1 March. These administrative arrangements have been made possible by the exercise by the Commissioner of discretion under section 206 of the ITAA 1936. This has contributed to uncertainty to small business as it was not clear whether the Commissioner would exercise his discretion in the same manner each year.

The amendments made by Schedule 5 implement Government's response to the report of the Small Business Deregulation Task Force, which recommended that more time should be provided for small businesses to meet their tax obligations. Proposed subsection 221AZK(2) provides that instalment taxpayers classified as small with a balance date of 30 June will be required to pay their likely tax on 15 December following the income year and the balance on the following 15 March. Corresponding dates will apply to small businesses that balance on dates other than 30 June. This concession is only available to instalment taxpayers that are classified as genuinely small. This group of small instalment taxpayers will include companies, corporate unit trusts, public trading trusts, superannuation funds, approved deposit funds and pooled superannuation trusts The concession will not apply to instalment taxpayers whose actual tax payable for the income year exceeds $300 000. Such taxpayers with a balance date of 30 June will pay the full tax liability on 1 December following the end of the income year (ie 18 months after the commencement of the income year). The Regulation Impact Statement states that this amendment will defer only a small amount of tax and, as a result, the interest cost to revenue will be insignificant.

The proposed amendment to the instalment schedule are to take effect from the 1996-97 income year. The amendments also change the classification system with effect from the 1997-98 income year.

Schedule 6 - Dividend Imputation and Retirement Savings Accounts

The purpose of the amendments to the ITAA 1936 proposed in Schedule 6of the Bill is to ensure that no franking credit or debit arises from the payment or refund of tax where those amounts are attributable to the Retirement Savings Account (RSA) of a life assurance company. As part of the tax treatment of RSAs by amendments to the ITAA 1936 introduced by the Retirement Savings Account (Consequential Amendments) Act 1997 (RSA Act) this consequence applied to other entities such as banks, building societies and credit unions that are allowed to establish RSAs. The amendments in Schedule 6 of the Bill are necessary to provide the same tax treatment to RSAs established by life assurance companies as the amendments by the RSA Act did not have this effect . The amendments are to have effect to franking credits and debits arising for life assurance companies after the date of introduction of this Bill (ie 29 October 1997).

Schedule 7 - Deductible Expenditure and CGT Cost Bases

Under the existing law there is nothing to prevent a taxpayer who has claimed a deduction in respect of an asset in calculating income for income tax purposes from claiming the same deduction for capital gains purposes. The amendments in Schedule 7are designed to prevent taxpayers from claiming a deduction for capital gains purposes to the extent that they would be able to claim a deduction for expenditure in calculating income. Proposed paragraph 160ZJAprevents the inclusion of an amount of expenditure in the cost base or indexed cost base of an asset to the extent that deductions are allowable to the taxpayer in calculating assessable income.

These changes were announced as part of the 1997-98 Budget and applicable to assets disposed of after 7.30 pm AEST on 13 May 1997. The Government received representations from the building and property industries that it would be unfair for measures to apply to expenditures incurred in respect of pre-Budget assets. Transitional measures included in Schedule 7 that would exclude from the measures, expenditure incurred on pre-Budget land or buildings only if the expenditure was incurred before 1 July 1997.

This CGT cost base adjustment measure is expected to provide a gain to revenue over the five years 1997-98 to 2001-02 of $325 million. This is $135 million short of the original Budget estimate and represents the cost of the concession made to representations from the building and property industries.

Schedule 8 - Passive Income of Insurance Companies

The amendments proposed in Schedule 8 are designed to correct a deficiency in calculating the passive income of the controlled foreign companies (CFCs) of Australian life and general insurance companies. Proposed section 446to the ITAA 1936 will provide for a new formula to replace the existing formula for calculating passive income. The new formula will exclude from a company's passive income only the income derived on assets referable to insurance policies owned by non-residents that are not related to the company. The Explanatory Memorandum sets out clearly the technical changes and illustrates the use of the new formula.(10) The amendments apply to the passive income derived by an insurance company on or after 1 July 1997 and the estimated revenue savings is expected to be $10 million in each of the 1998-99, 1999-2000 and 2000-01 financial years.

Schedule 9 - Average Calculated Liabilities of Life Assurance Companies

The purpose of the amendments proposed in Schedule 9 is to ensure that average calculated liabilities are used by a life company to determine the amount of income that relates to immediate annuity policies; the amount of income that is attributable to policies issued by overseas branches and the amount of income and capital gains to be allocated to each class of assessable income. Under the existing law liabilities for the above purposes are based on year end liabilities of a group of policies. Proposed section 114Asets out the steps that will be used to work out average calculated liabilities for a category of policies. The proposal to switch to average calculated liabilities was announced by Government on 29 April 1997 because using calculated liabilities at year end could distort these calculations if they do not reflect the respective proportions of these groups of policies held during the year. The Explanatory Memorandum sets out examples of the calculation of average liabilities under the proposed measures.(11) The amendments are expected to protect revenue in the order of $100 million and the amendments apply from the first year of income that commences on or after 29 April 1997.

Schedule 10 - Depreciation

Schedule 2D to the ITAA 1936 inserted by Taxation Laws Amendment Act (No. 3) 1996 ensured that depreciable assets of tax exempt entities which become taxable were brought into the tax system at their notional written down value (NWDV) in calculating allowable depreciation. Schedule 2D applied to depreciable assets of a tax exempt entity which became taxable after 2 July 1995. The purpose of the amendments in proposed section 61A is to ensure that depreciable assets of tax exempt entities which became taxable earlier than 3 July 1995 but not earlier than the start of the year of income in which 1 July 1988 occurred are brought into the tax system at their NWDV. The provisions will apply to Government exempt entities which are privatised either by legislation or sale to private interests and non-Government exempt entities which cease to be exempt. This puts beyond doubt the interpretation and administration by the Commissioner of Taxation of the provisions of section 61 of the ITAA 1936 for the specified period, prior to the enactment of Schedule 2D. No additional revenue is expected from this measure, but failure to implement this measure poses a potentially significant threat to revenue by way of claims relating to the period prior to 3 July 1995.

Concluding Comments

Trust Loss Legislation and Tax Treatment of Trusts in Tax Reform

The majority report of the Senate Economics Legislation Committee on the trust loss measures Bill in December 1997 notes the concerns that were raised before it in relation to the retrospectively of the trust loss measures, its complexity and the changed arrangements in relation to the definition of family for the purposes of establishing family trusts. The majority report recommended that the government should consider the evidence received by the Committee to determine whether there should be further amendments to those Bills. These very concerns can equally apply to the amendments proposed in Schedule 2 to Bill considered in this Bills Digest.

In the 1997-98 Budget(12) the Government indicated that it is concerned to ensure that the taxation provisions relating to trusts do not permit tax avoidance or undue tax minimisation.12 This followed the identification by the ATO High Wealth Individuals Task Force (HWITF) of the use of complex trust structures for tax avoidance or undue tax minimisation. Government indicated that it will undertake a review of the taxation of trusts after the ATO and the Treasury issue a discussion paper expected towards the end of 1997. This discussion paper has not been issued to date and it appears that this review will be part of the general Tax Reform agenda of the Government.

The minority report on the trust losses Bill, by the ALP members on the Senate Economics Legislation Committee, made the following specific comments on the extension of the family trust concession having regard to the focus on tax avoidance by high wealth individuals in recent years.

The Opposition is resolutely opposed to the extension of the concession and considers that it will be regressive in its impact. Wealthy family groups will be able to continue to traffic in trust losses within the family group completely immune from the consequences that other taxpayers will face from this legislation
Evidence provided to the Committee by the Australian Taxation Office confirmed that the increased concession will result in less revenue being collected, even though this will be offset to some extent by tightening of the definition of family member for the purposes of the legislation.
Although Labor does not support this unjustified extension of the family trust concession, we recognize that taxpayers have acted in good faith on the basis of the official announcement by the Treasurer on this matter and that therefore it would be harsh and unreasonable to retrospectively abolish the broader concession.(13).

The concluding paragraph of the minority report indicated that Labor in government will review the whole issue of the taxation treatment of trust losses, but fell short of indicating whether this would be part of a total review of the taxation of trusts.

Senator A Murray of the Australian Democrats in his minority report recommended that

Significant changes to trust taxation should not be made in isolation of the Government's proposed overall tax reform package.(14)

Mr Michael Carmody, the Commissioner of Taxation, recently raised for consideration the application of the company tax regime to trusts in the Government's proposed review of the taxation of trusts in the interests of enhancing the integrity of the income tax system.

Turning more specifically to the proposed review of the taxation of trusts, the criticisms have concentrated on an alleged anti-trust bias or lack of understanding of the commercial use of trusts.
As put in one submission the vast majority of trust structures have been established or result from commercial reasons or transactions.
Rather than rebutting the issues we have raised on trusts, this statement is the very reason we have raised the question of the appropriate treatment of trusts for taxation purposes!
As trusts have increasingly become simply an alternative business structure we believe it is perfectly valid to raise for consideration what should be the appropriate treatment for tax purposes.
Both companies and trust structures can offer the advantages of limited liability and a capacity to split income (even more in the case of trusts). In these circumstances we think it is perfectly valid to raise for consideration the question "why should not the starting point for this be that companies and trusts be treated the same for tax purposes". Thus, for example, we believe it is fair to ask why certain distributions from a business conducted through a trust are capable of being received free of tax while the same distributions made from a business conducted through a company are subject to tax.
For example, where a company pays a dividend out of profits which have been sheltered from tax because of, say, deductions for building allowances or accelerated depreciation, the dividend is taxable in the hands of the individual shareholder. A distribution in similar circumstances from a discretionary trust is free from tax.
Similarly, a distribution by a company from an asset revaluation reserve is treated as a taxable dividend whereas a similar distribution from a trust is generally not taxable.
In raising these questions we are not expressing a view about the appropriateness of the use of trusts for commercial purposes. Nor are we labelling the use of trusts as tax avoidance. They are not the issues. The issue is, what is the fairest and most appropriate tax treatment given their acknowledged increasing use as a business structure?
In doing this we are not exhibiting any bias against trusts, we are simply raising what are, in our view, valid questions that go to the integrity of the tax system.
The Government has indicated its intention to release an official's discussion paper on the appropriate taxation treatment of trusts. There will be plenty of opportunity to discuss the approaches then. I have no doubt there will be some in the community who will be lively critics but let's focus the criticisms on an analysis of the true issues rather than the distraction of criticising, "labelling" if you like, the Tax Office's role or motives.(15)

The need for a review of the taxation treatment of trusts and recommendations that consideration should be given to taxing trusts as companies to reduce opportunities for tax minimisation has been commented upon in several reports in the past. The information and Research Services 1997-98 Budget Review gives a brief account of the recent reports, commencing with the Tax Reform Summit of 1985, where the application of the company tax regime to trusts has been suggested.(16)


  1. More Time for Business - Statement by the Prime Minister, the Hon John Howard MP, 24 March 1997, 17
  2. Press Release No 35: Capital Losses - Denial of Artificially Created Losses
  3. Explanatory Memorandum to the Taxation Laws Amendment Bill (No. 6) 1997, 10-11
  4. (1996) 34 ATR 183
  5. Bills Digest No. 98 of 1997-98, 6
  6. Explanatory Memorandum to Taxation Laws Amendment Bill (No. 6) 1997, 44-47
  7. ibid., pp. commencing with the Tax Reform Summit of 1985 61 - 66, paragraph 3.62
  8. ibid., paragraph 3.62.
  9. ibid., paragraph 3.78
  10. ibid., 71-73
  11. ibid., 101-111
  12. Budget Measures 1997-98 - Budget Paper No. 2, 172
  13. Australian Senate - Economics Legislation Committee - Report on Taxation Laws Amendment (Trust Loss and Other Deductions) Bill 1997 and complementary Bill (December 1997) - Minority Report, 3
  14. ibid, Minority Report of Senator A. Murray, Recommendation 2
  15. Address by Mr Michael Carmody, commissioner of Taxation, to CEDA, Adelaide (10 September 1997) 'We cannot Afford, or Accept, the Role of Passive Administrator'.
  16. IRS Budget Review 1997-98, 19/25

Contact Officer and Copyright Details

Bernard Pulle
27 February 1998
Bills Digest Service
Information and Research Services

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