Can a beneficiary disclaim or renounce their entitlement to Family Trust income?

Can a beneficiary disclaim or renounce their family trust entitlement?

Each financial year your Family Trust gets an income. It may be from passively renting out property. It may be from operating your business. Someone has to pay tax on that income. Every year you get the choice of which beneficiary pays tax on the income. But can a beneficiary disclaim their entitlement?

A distribution is done via a Family Trust Distribution Statement.

The family trust beneficiaries that you distribute to rarely see or get any of the money. You are just using up their low marginal tax rates. (The money owed to beneficiaries are called Loan Accounts or, more correctly, Unpaid Present Entitlements. Each year the children or beneficiaries sign a Debt Forgiveness Agreement to reduce the money the Family Trust owes them to zero.)

Watch the Family Trust free training course here.

Can a beneficiary disclaim their entitlement to Family Trust income?

Let’s say you made a distribution to your mum. But now realise that it affects her Centrelink benefits. Can she renounce? The Trust Distribution Statement can’t be changed from 30 June. That is a problem. However, the ATO states that:

‘A beneficiary may disclaim an entitlement to trust income or capital arising from a resolution within a reasonable time of becoming aware of their entitlement.

If a beneficiary has made a valid disclaimer, you (the trustee) may be assessed on a share of the trust’s net (taxable) income.’ Trustee resolutions QC 25912

Legal Consolidated believes that the ATO is correct. We base our opinion on these cases:

Federal Commissioner of Taxation v Cornell
(1946) 73 CLR 394
8 ATD 184
3 AITR 405

Commissioner of Taxation v Ramsden
[2005] FCAFC 39
2005 ATC 4136
(2005) 58 ATR 485

Nemesis Australia Pty Ltd v FC of T
[2005] FCA 1273
2005 ATC 4881
61 ATR 119

Vegners v FC of T
91 ATC 4213
(1991) 21 ATR 1347

NSW Court of Appeal in Chief Commissioner of State Revenue (NSW) v Smeaton Grange Holdings Pty Ltd
(2017)  106 ATR 151; [2017] NSWCA 184

Until disclaimed, a discretionary trust beneficiary’s entitlement to trust income operates under section 97  ITAA1936. This is from the moment it arises. This is the case even if the beneficiary has no knowledge of it: Vegners v FC of T 91 ATC 4213 at 4215; (1991) 21 ATR 1347 at 1349.

A discretionary trust beneficiary may disclaim an entitlement when they find out. A disclaimer does not need a formal deed. However, the beneficiary must do some act to show their dissent. Silence or inactivity is not sufficient to disclaim the interest: Federal Commissioner of Taxation v. Cornell (1946) 73 CLR 394; 8 ATD 184; 3 AITR 405).

An effective trust disclaimer, once made, operates retrospectively: not merely from the time of the disclaimer.

1. Commissioner of Taxation v Ramsden – discretionary trust distributions

To be effective, a disclaimer is made within a reasonable time of the beneficiary becoming aware of the relevant gift. The family trust ‘gift’ is disclaimed in its entirety: Commissioner of Taxation v. Ramsden [2005] FCAFC 39; 2005 ATC 4136; (2005) 58 ATR 485.

Identify clearly the disclaimed gift. The whole gift is disclaimed – not just some of it. In Ramsden, the ATO argued that the entire income earned in the Family Trust was a single gift. The Court said that was silly.

The ATO then argued that a beneficiary who had assented to a gift of income in a previous year could not make a disclaimer for a subsequent year. Also false.

The Court finds that each entitlement is a separate gift. The subject matter of that gift is the income for that year. Further, the Court finds that the interest of a default beneficiary is a separate gift. It arises from the operation of the family trust deed. The beneficiary is not prevented from disclaiming this gift merely because they had accepted gifts from the trustee in the past.

In this case, the beneficiary validly disclaimed their entitlement to the trust’s income. This is because they advised the trustee that they had no desire to receive the income appointed to them. This was upon becoming aware of their entitlement.

Accordingly, the beneficiary was not presently entitled to a share of the income of the trust for the purposes of section 97 ITAA 1936. Thus it was not assessable on any of the trust’s net income for that year.

If the Minutes are deficient the income is then assessed to the trustee: see Nemesis Australia Pty Ltd v. FC of T [2005] FCA 1273; 2005 ATC 4881; 61 ATR 119. However, if the Minutes are correctly structured then the next group of beneficiaries named in the Minute gets the assets. Our Minutes achieve this.

But your Family Trust Distribution Minutes must allow it. Our Trust Distributions allow for disclaiming and renouncing.

Can a beneficiary disclaim their entitlement? Yes, but only if the Trust Distribution Minutes allow.

2. Trust distributions in Nemesis Australia Pty Ltd v FCT

In Nemesis Australia Pty Ltd v FCT [2005] FCA 1273 at para 51 Tamberlin J states:

“…the entitlement of the [default income beneficiary] arises only as from the time that the disclaimers are made and these were made outside the 30 June period of the relevant years. Accordingly, it cannot be said that [the sole remaining default income beneficiary] was ever entitled to the appointed income.”

From my experience, disclaimers of trustee-allocated income for a year and disclaimers of income under a default income vesting clause are made after year-end.  To be a valid disclaimer, a default income beneficiary disclaims being a default income beneficiary for all years. It is not enough to do so for just one financial year. See FCT v Ramsden [2005] FCAFC 39 at para 42.

Also, consider ATO Interpretative Decision ATO ID 2010/85. This ID is without authority. It relies on a casual comment in Nemesis Australia Pty Ltd. Consider also Private Binding Ruling PBR 1012463150681 (income years 2010-11 and 2011-12):

“Note that the share of net income in respect of which the beneficiary [under the trustee income discretion] would otherwise have been assessed will be assessed to the trustee (see Nemesis Australia Pty Ltd v FCT [2005] FCA 1273….”.

3. Family trust distribution disclaimer was ineffective: The Beneficiary v FCT [2020] AATA 3136

The beneficiary of a family trust failed to satisfy the Court that she effectively disclaimed a trust distribution of $80,000. See The Beneficiary and FCT [2020] AATA 3136 (AAT, Olding SM and Pola SM, 26 August 2020).

Facts of The Beneficiary v FCT case

The taxpayer and her ex-husband are the primary beneficiaries of a family trust. The family trust has a company as a trustee. This is called a ‘corporate trustee‘. The ex-husband is the director of the corporate trustee. The ex-wife states she does not want the $80,000 from the family trust. But, the ATO amends her tax return. The ATO adds the $80,000 trust distribution.

The ex-wife had not included the $80,000 trust distribution in her tax return. However, PAYG instalments of $31,248 relating to the taxpayer which were paid by the trustee during the year were included in her return. This resulted in her getting a refund of $31,328. (A wonderful double dip, if you lack moral integrity. No wonder her lawyer’s wanted to keep her name out of the public records.)

The trust’s accounts showed that, at the end of the income year, she owed the trust $63,000. This is taking into account the trust distribution and advances made to her during the year of $96,000.

She objected to the ATO’s amended assessment. This is on the basis that she had disclaimed the trust distribution on 6 April 2018. She did this by signing a document entitled “Disclaimer of Trust Income”. Later, she adds to the grounds of objection to include that the distribution was disclaimed in March 2015. This was when her family lawyer struck through the distribution in a draft income tax return sent to her by the accountant. The accountant acts for her, her former husband and the trust. (I can see a negligence claim coming on based on conflict of interest.)

Court decides discretionary trust distribution not effective

The Court said that the ex-wife had the burden of proving that she had disdained the family trust distribution. The Court said she fails. She fails to discharge the burden of proving that she had not accepted the trust distribution. In particular:

• she is dishonest in claiming credit for the amount of the PAYG instalments paid to the ATO by the trustee and retaining the refund. This is inconsistent with her not accepting the distribution;
• it is inferred from her inaction over the period between becoming aware of the distribution by late March 2015 and finally disclaiming it in April 2018, around the time her objection was lodged, that she had accepted the distribution;
• the Court was not satisfied that the actions of her family lawyer in striking through the distribution in the draft tax return were sufficient to disclaim it. On her own evidence, she had no concept of a disclaimer in mind when this occurred. Nor was there any evidence that she told the alleged disclaimer to the trustee either directly or through the accountant.

4. Beneficiaries effectively disclaimed entitlement to family trust income – Carter v FCT

The Full Federal Court has held that adult beneficiaries of a discretionary family trust had effectively disclaimed their entitlement to trust income: Carter & Ors v FCT [2020] FCAFC 150 (Full Federal Court, Jagot, Davies and Thawley JJ, 10 September 2020).

Facts of Carter v FCT as to a trust distribution

The Whitby Trust operates a property development business. Its main asset is land. Purchased for $28m. The land is developed and sold in small parcels. The primary beneficiaries (and default beneficiaries) of the trust are 5 siblings. One is a minor. Under 18. And therefore under a ‘legal disability‘.

The ATO does an audit. The ATO argues that trust-distributing resolutions are ineffective. Therefore, the income for each of those years vests in the five default beneficiaries. This is in equal shares (20% each). The ATO, therefore, issues new assessments:

• for 2011 to 2013 – assessing the trustee under s 99A of the ITAA 1936 in respect of 80% of the estimated net income of the trust, on the basis that Deeds of Disclaimer executed by the 4 adult beneficiaries in June 2014 (the first disclaimers) were effective (to disclaim their entitlements to the income of the trust for those years); and
• for 2014 – under s 97 of the ITAA 1936 to the 4 adult primary beneficiaries assessing each for 20% of the estimated trust net income. This is as default beneficiaries. This is on the basis that Deeds of Disclaimer signed in November 2015 for the 2014 income year (the second disclaimers) are ineffective. Further Deeds of Disclaimer are signed in September and October 2016 for all entitlements from the trust (the third disclaimers).

At first, the ATO accepts the first disclaimers. The second disclaimers are in the same terms as the first one. The third disclaimers are signed as a result of the ATO stating the second ones are ineffective.

In the first instance, it seems that the first and second disclaimers fail to disclaim all of those entitlements within a reasonable time, or at all. As a result, the lower court states that the disclaimers are ineffective. The third disclaimers are also ineffective. This is because of the implicit acceptance of the gift by virtue of the terms of the Whitby Trust Deed through a failure to disclaim it in its entirety. Further, there is a delay from the time of initial awareness of the entitlement that precluded a later disclaimer.

The Court at first instance decision means that the four adult beneficiaries are each ‘presently entitled’, as default beneficiaries, to 20% of the trust income for the 2011 to 2014 income years. The 2014 assessments issued to the adult beneficiaries under section 97 were therefore upheld. For the 2011 to 2013 income years, however, the only assessments before the first court were those issued to the trustee under s 99A. The AAT upheld those assessments. This is because the grounds of objection were not wide enough to allow the AAT to conclude the s 99A assessments were invalid because the default beneficiaries were presently entitled to a share of the income of the trust.

Decision of Carter v FCT

The Full Court firstly upheld the AAT’s decision that the income of the Whitby Trust was not validly appointed to another trust. This is because there is insufficient evidence showing there was a valid resolution of the Whitby Trust to distribute the income, or that the meeting at which the resolution was allegedly made actually took place.

However, the Full Court overturned the AAT’s decision that the adult beneficiaries had not validly disclaimed their entitlement to the income of the trust for 2014.

The Full Court agreed with the AAT that the second disclaimers (and thus the first disclaimers also, which the ATO nevertheless accepted to be effective) did not reject the entirety of the gift in the trust deed and were thus ineffective. However, in the Court’s view, there was nothing in the terms of the first and second disclaimers to support the inference that the adult beneficiaries intended to accept the default income distributions. It was plain from the terms of the first and second disclaimers that the adult beneficiaries did not intend to accept any interest for the 2011 to 2014 income years. Consequently, any purported acceptance by them of any trust income occurred without full knowledge and intention.

Conclusion of Carter v FCT for a trust distribution

The Full Court said that the adult beneficiaries’ conduct was consistently directed towards one end – to reject any right to any income from the Whitby Trust. The AAT was, therefore, wrong to argue that the beneficiaries had implicitly or tacitly accepted the income of the trust for 2014. Since the third disclaimers were effective to disclaim the default distributions in 2014, the s 97 assessments issued to the adult beneficiaries were invalid.

The Full Court also rejected an argument by the ATO that the disclaimers did not operate retrospectively, as the effect of a disclaimer “is that the beneficiary must be treated as never entitled to the income for the purposes of s 97 in respect of the relevant income year”. Moreover, there was nothing in the legislative scheme concerning the taxation of trust income (Div 6 of Pt III of the ITAA 1936) to indicate that a beneficiary’s liability under s 97 “is to be determined once and for all by reference to the legal relationships then in existence” in the income year in question.

High Court to hear ATO’s appeal in Carter (disclaimer to trust income)

The Commissioner’s application for special leave to appeal to the High Court from the decision in FCT v Carter [2020] is granted.

The Full Federal Court stated that adult beneficiaries of a discretionary family trust (the Whitby Trust) had effectively disclaimed their entitlement to trust income. Thus allowing an appeal against an AAT decision: see 2020 WTB 37 [1005].

The Full Court upheld the AAT’s decision that the income of the Whitby Trust had not been validly appointed to another trust as there was insufficient evidence to show there was a valid resolution of the Whitby Trust to distribute the income, or that the meeting at which the resolution was allegedly made actually took place.

However, the Full Court overturned the AAT’s decision that the adult beneficiaries had not validly disclaimed their entitlement to the income of the trust for 2014. The Full Court said that the adult beneficiaries’ conduct was consistently directed towards one end – to reject any right to any income from the Whitby Trust.

In the High Court’s transcript, Edelman J stated that the “nub of the submissions” came down to whether the term “present entitlement” as used in s 97 of ITAA 1936 includes defeasible rights that have been avoided. Counsel for the taxpayers said that the Commissioner’s approach, in this case, meant that “one cannot look at a matter that occurs at any time after” year-end – which had the potential “to work extraordinary unfairness upon the beneficiaries of trusts”.

High Court decision in FC of T v Carter & Ors [2022] HCA 10

Unanimously, the High Court allows the ATO’s appeal.

The court notes that the phrase “is presently entitled to a share of the income of the trust estate” in s 97(1) is stated in the present tense. Not a future tense.

It is directed to the position existing immediately before the end of the income year. This is for the stated purpose of identifying the beneficiaries who are assessed with the income of the trust. The trust beneficiary:

• as well as having an interest in the income of the trust that is vested both in interest and in possession
• had a present legal right to demand and receive payment of the income.

The legislation is designed to tax a beneficiary. This is by reference to present entitlement, not actual receipt. You do not actually get the income – yet. But you are entitled to the income. That is enough. Accordingly, you are taxed on the income.

The court argues that the taxpayer’s construction of the phrase “is presently entitled” is against the:

• text of s 97(1); and
• object and purpose of Div 6 of ITAA 1936.

The taxpayers’ approach gives rise to uncertainty. This is when identifying the beneficiaries presently entitled to a share of the income of a trust estate and the subsequent assessment of those beneficiaries.

According to the taxpayer, whether a beneficiary is presently entitled to a share of the income of a trust estate might not be resolved for a substantial period of time, in some cases years. But uncertainties that arise, and which would apply with equal force to the Commissioner, trustees, beneficiaries and perhaps settlors, would not be fair, convenient or efficient.

The question of the present entitlement of a beneficiary to the trust income is tested and examined at the close of the tax year, not some reasonable period of time after the end of that year.

Although not necessary to determine, the High Court went on to observe that, whether or not the third disclaimers are effective to vary the rights and obligations of the trustee and the taxpayers, they were not effective in retrospectively expunging the rights of the ATO that were in existence at midnight on 30 June 2014. And which gave rise to the 2014 assessments.

The presumption of assent is a strong presumption of law. Division 6 and, in particular, the criterion of “is presently entitled” in s 97(1), is consistent with and operates on, the presumption of the law of assent. That presumption applies immediately before the end of the 2014 income year to the operation of law of the family trust deed.

The decision confirms the rule of fiscal objectivity. This is at it applies to Div 6 of Pt III ITAA 1936. You can no longer change the past.

Less poetically, the taxable facts upon which Div 6 operates are those which exist at the time of the relevant taxable period. They do not include subsequent events that may be retroactive for non-tax purposes.

The High Court’s Carter decision follows the same reasoning in Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd (2017) 106 ATR 151. The taxpayer, in that case, is refused special leave to appeal to the High Court.

Statement from the High Court of Australia in Carter’s case on 6 April 2022

“Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s 97(1) of the Income Tax Assessment Act 1936 (Cth). Section 97(1) relevantly provides that “where a beneficiary of a trust estate who is not under any legal disability is presently entitled to a share of the income of the trust estate … the assessable income of the beneficiary shall include … so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident”. The principal question for determination was whether a beneficiary’s present entitlement under s 97(1) is to be determined immediately prior to the end of an income year or whether events after the end of the income year may be considered.

The respondents were beneficiaries of a trust estate. The trust deed provided that if the trustee did not pay, apply, set aside or accumulate any part of the trust income in a given accounting period, the trustee would hold that income in trust for specified beneficiaries, including the respondents. An accounting period was relevantly defined as a 12-month period ending on 30 June. In this way, the trust deed ensured that in each accounting period, the whole of the trust income was distributed, if not otherwise dealt with.

In the 2014 income year, the trustee failed to pay, apply, set aside or accumulate the income of the trust. As a result, one-fifth of the trust income was held on trust for each of the respondents. On 27 October 2015, the appellant, the Commissioner of Taxation (“the Commissioner”), issued an amended assessment to each respondent for the 2014 income year (“the 2014 Assessments”) which included as assessable income one-fifth of the trust income on the basis that the respondents were “presently entitled” to that income within the meaning of s 97(1). On 30 September 2016, the respondents disclaimed their interest in the trust income. They subsequently objected to the 2014 Assessments in reliance on the disclaimers.

On appeal:

On appeal on a question of law from a decision of the Administrative Appeals Tribunal, the Full Court of the Federal Court relevantly held that the respondents’ disclaimers operated retrospectively so as to disapply s 97(1) in respect of the 2014 income year.

The High Court held that s 97(1) is directed to the position existing immediately before the end of the income year for the purpose of identifying the beneficiaries who are to be assessed with the income of the trust. The section looks to the right to receive an amount of distributable income, not the receipt of income. Events occurring after the end of the income year cannot disentitle a beneficiary who was “presently entitled” immediately before the end of the income year. The respondents’ disclaimers were therefore not effective to retrospectively expunge the rights of the Commissioner against the respondents which were in existence at midnight on 30 June 2014 and which gave rise to the 2014 Assessments.”

ATO Impact statement on Carter case — disclaimer of trust entitlements

The ATO has issued a decision impact statement on the High Court decision in Federal Commissioner of Tax v Carter & Ors [2022] HCA 10.

The case considered whether a valid disclaimer signed by a default beneficiary operated retrospectively. This is to avoid the application of s 97 ITAA 1936.

Background of ATO’s position on the Carter case

The trust taxation rules are under Div 6 of Pt III of ITAA 1936. Relevantly, section 97 states that a beneficiary who is ‘presently entitled’ to a share of the income of a trust for an income year includes in their assessable income that share of the trust’s net income.

Example of how ‘present entitlement’ works in a Family Trust

For example, your son, as the Appointor, signs the Annual Trust Distribution Statement. The Family Trust is going to distribute $100k to you. Yippee. But, sadly, you are never going to get the actual money. It is just allocated to you. But the money remains in the Family Trust. But because you are ‘presently entitled’ you must still pay tax on this amount. And you must notify Centrelink that you are now $100k richer.

What happens if you forgot to sign the Family Trust Distribution Minute before 30 June?

Where no beneficiary is presently entitled to a share of the trust income, the trustee, itself, is assessed on that income. This is under section 99A. But if there is a ‘default beneficiary’ named in the Family Trust Deed then they, instead, are deemed to have got the money.

The main issue in the Carter case is the taxation of gains from the sale of some properties in the Family Trust.

The ATO Commissioner issued assessments against the:

• Family Trust’s trustee under s 99A; and
• 5 default beneficiaries.

One of the default beneficiaries is under 18. A minor. Therefore the trustee is assessed on the child’s behalf. This is in a representative capacity under s 98.

The other default beneficiaries are assessed on their share of the Family Trust income under s 97.

Later the default beneficiaries try and escape the deemed distributions. They sign a series of disclaimers. This is for their default entitlements. The third (and final) disclaimers are expressed broadly. This is to disclaim any and all rights and interests conferred by the trust deed to any income.

In the first instance, the AAT states that none of the disclaimers are effective. They do not work.

Therefore, the AAT does not consider whether the disclaimers operate to disapply s 97 had they been effective.

However, on the first appeal, the Full Federal Court states the:

• third disclaimers are effective. This is at general law. These disclaimers successfully disclaim the entirety of the beneficiary’s default interests.
• disclaimers are retrospectively effective. This is for tax purposes. Therefore, the beneficiaries are not presently entitled to income within the meaning of s 97. This is as of 30 June.

High Court in Carters case

The High Court unanimously allows the ATO’s appeal. The disclaimers fail.

The ATO’s position on Family Trust disclaimers after Carter’s case

The Commissioner’s view is that the High Court decision settles the question regarding the tax effect of disclaiming trust entitlements in a legally effective manner after the financial year-end.

Beneficiaries looking to disclaim an interest in or entitlement to, trust income should be aware that a disclaimer made after financial year-end would not disturb what would otherwise be the tax result.

The ATO has withdrawn ATO ID 2010/85 Trust income: disclaimer of an entitlement to trust income in response to the decision.

Any Stamp duty when you disclaim a family trust distribution?

Also, consider the State (stamp) duty on any disclaiming of a family trust distribution. Every State and Territory has different rules and they change. There is no consistency between the States.

Capital Gains Tax when you disclaim a family trust distribution

The Australian Tax Office sets out its view on the CGT issue when you disclaim a family trust distribution. See:

• Renunciations start from the date the renunciation is made (prospectively) – Determinations 2001/26
• Disclaimers operate retrospectively from the start of the family trust – TR 2006/14

Happily, the ATO says that a renunciation or disclaimer of a family trust interest has generally no capital gains tax consequences. This is the trustee of the family trust.

The Australian Tax Office confirms that:

• an interest in a trust is a CGT asset; and
• a renunciation by a beneficiary of an interest in a trust gives rise to CGT event C2
  This is the abandonment, surrender or forfeiture of an interest.

But does the CGT event have practical consequences? This depends on if:

• the CGT asset has any value. This is at the time of the CGT event; and
• there are any available exemptions

The ATO looks at a beneficiary. Did the beneficiary have any interest in the Family Trust before the Trust Distribution Minutes? This is almost 100% of the time. Family Trust beneficiaries have no interest in the trust income or capital. That is the very nature of a Family Trust. The outcome for the ATO? There are no CGT issues. This is because the market value of the beneficiary’s interest is nil.

The above deals with renouncing. Now Consider the ATO’s position when a beneficiary disclaims their trust interest. The disclaimer is by its nature retrospective. The effect? The beneficiary never held the disclaimed entitlement. Wonderfully, there is therefore no asset to which a CGT event applies.

Three issues as to whether CCGT applies when a beneficiary renounces or disclaims a family trust interest:

1. the family trust deed’s terms
2. the past history of distributions to the beneficiary
3. any other relevant circumstances

But I won’t know the income of my family trust until after 30 June

You can still build and must build your Family Trust Distribution Minutes before 30 June. Thankfully, the ATO states:

‘your resolution does not need to specify an actual dollar amount for the resolution to be effective in making a beneficiary presently entitled…’ (Trustees Resolutions QC 25912).

The Resolution you are building states that a beneficiary gets the income up to their marginal tax rate, and then to someone else up to their marginal tax rate. As the ATO states:

‘A resolution is effective if it prescribes a clear methodology for calculating the entitlement …’

Why build Distributions Statements for each financial year?

Since 1994, as a tax lawyer, I have provided a Family Trust Distribution Statement for each financial year. I attend a lot of ATO audits. My doctorate was in tax. The tax laws change. The ATO changes its mind. We prepare the Distribution Statements that reflect those particular rules for each unique financial year.

Does a family trust resolution have to be in writing?

Read your Trust Deed to find out. Do you have a Brett Davies Lawyers or Legal Consolidated Family Trusts Deed? All our Deeds allow for the Distribution Minute to be in writing or oral. Whether the resolution must be recorded in writing depends on your trust deed. However, a written record provides better evidence of the resolution and avoids a later dispute. You don’t want fights with the beneficiaries and the ATO.

A written record is essential to stream capital gains and franked distributions. A beneficiary is specifically entitled to franked dividends or capital gains if this entitlement is recorded in writing.