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Are asset revaluation reserve distributions 'ordinary income' for discretionary beneficiaries?
Published on 01 Jan 05 by "AUSTRALIAN TAX FORUM" JOURNAL ARTICLE
This article analyses whether an asset revaluation reserve distribution made by a trustee of a discretionary trust could be regarded as ordinary income for the receiving beneficiary. This is important as normally only the capital gains tax treatment is considered, with the resultant conclusion that such a distribution is not assessable. Through this article's analysis, the accepted position that an asset revaluation reserve distribution has no adverse income tax consequences for a beneficiary of a discretionary trust will be challenged. In particular, it will be submitted that the receipt of such a distribution by a discretionary beneficiary could be assessable as ordinary income.
The article will initially consider whether an asset revaluation is ordinary income for the trust estate itself. Then the conduit theory's application to asset revaluation reserve distributions by trustees of discretionary trusts will be considered. Following this analysis, the article will consider whether the receipt of an asset revaluation reserve distribution is ordinary income for the beneficiary of a discretionary trust.
Author profile
Dr Brett Freudenberg CTA
Brett is a Professor – Taxation at Griffith University. Brett is known for his research expertise in the tax law and policy issues facing private enterprises, as evidenced by his Fulbright Scholarship (2006) and over 80 refereed publications in leading Australian and international journals. In 2020, he was awarded the national ATTA-Hill medal in recognition of outstanding contribution to Australasian tax policy and tax teaching. Brett is passionate about education being a transformative process, and his effectiveness as a teacher has been recognised through five national awards (including the award of two Australian Learning and Teaching Council citations: 2008 & 2011). In 2019 Brett was successful in securing funding from the Federal Government to establish the Griffith Tax Clinic, which sees students under supervision providing free tax assistance to those in need in the community. Prior to commencing with Griffith University, Brett was a senior taxation consultant with KPMG and a solicitor with Corrs Chambers. - Current at 06 July 2022
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