Using Family Trusts to stream to save tax - Part 1

USING FAMILY TRUSTS TO STREAM TO SAVE TAX – PART 1

Family trusts can be a very effective vehicle for tax planning. A family trust does not pay income tax or capital gains tax. Instead, the income and/or capital gains earned by a family trust have to be distributed to a beneficiary, who pays the tax.

The tax effectiveness is achieved by distributing to low tax rate beneficiaries and even distributing different classes of income to different beneficiaries. This is called “streaming”.

The new streaming rules can be complex, so let’s look at some questions we have been asked:

1.What is the streaming rule?

There is no set rule. The trust deed will usually include a clause regarding what income can and can’t be streamed and how to calculate it.

If the deed is an old deed it may be silent in relation to streaming (ie. not include a clause re streaming).

The ATO have stated that the new streaming rules do not give the trustee a power to stream if they did not already have that power under the trust deed.

If there is no power to stream trust income in the trust deed, the deed can be changed – but significant care and legal advice is required.

2.What income can be streamed?

Franked dividends

• It can be more beneficial to distribute franking credits to resident beneficiaries, than non-resident beneficiaries.

• Franking credits can be wasted if distributed to a loss company or trust.

• Franking credits can be more tax effective to a low tax rate beneficiary than a higher tax rate beneficiary.

Capital gains

• One beneficiary could have a capital loss that the capital gain could be offset against.

• The benefit of a discounted capital gain is lost where the capital gain is distributed to a company or to a non-resident (after 8 May, 2012).

3. What other income can be streamed?

Foreign source income

• If distributed to a non-resident beneficiary it may not be taxable in Australia?

• However the ATO have stated that only franked dividends and capital gains can be streamed. Other income is required to be distributed on a proportionate basis amongst all the income beneficiaries.

4. What happens if the franked dividends aren’t streamed?

Trust income doesn’t have to be streamed to different beneficiaries. If it is not, then the franked dividends and attached franking credits are split amongst the income beneficiaries on a proportionate basis. (eg 25% each to 4 beneficiaries). Note that there are also rules for the trust to be able to distribute the attached franking credits, which require the trust to have positive net income and taxable income.

5. Can franking credits be lost?

Yes.

The trust deed can determine how the income of the trust is calculated. This can result in there being a different trust income to taxable income and this determines whether the franking credits can be distributed to beneficiaries, either by streaming or by using the proportionate method.

If there is trust income but no taxable income of the trust the franking credits remain in the trust and are effectively lost (they aren’t refundable to the trust and they can’t be carried forward).

If there is no trust income (or there is a trust loss) but there is taxable income of the trust the franking credits also remain in the trust and are effectively lost.

Even if the trust has positive trust income and taxable income there can be circumstances that still risk the franking credits being trapped in the trust. (eg, where the reason the trust has positive trust income is because a capital gain is included).

In this instance it may be beneficial to NOT distribute all the capital gain to one beneficiary.

We will provide more information in relation to trust distribution streaming in Part 2 (the continuation) of this blog.

As always, thank you very much for your time in reading our blog and please contact us if you need any guidance regarding any of the matters noted above.

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