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Traps in Making Family Trust Distributions

 

Taxpayers and tax agents need to work closely together to avoid trust distribution problems.

Some examples are:-    

Who are the beneficiaries?

Is the proposed beneficiary really a beneficiary?  What does the trust deed say?  Check out who the excluded beneficiaries are.  Has anyone renounced or disclaimed their beneficial interest?  Has anyone been removed as a beneficiary?

Is the information correct?

If they are not named in the trust deed as a beneficiary, then consider whether they have been subsequently nominated.  Any trust documents are relevant from the beginning of the trust.  Has the deed been varied?  Has the definition of income been varied?

Vesting dates

A distribution might be made by one trust to another trust.  If that vesting date is more than 80 years after the date of commencement of the distributing trust, then the distribution is void.

What is income?

When there are differences between the trust income and taxable income, there may be an unexpected tax outcome.

Make sure you can rely on the trust’s tax returns and financial reports and that they are being prepared by a competent accountant.

Default beneficiaries exist?

If a resolution fails, any income or capital gain is distributed to the default beneficiaries (in the deed) and this will avoid the trustee being assessed on the income or capital against at the top marginal rate.  Are the resolutions so contingent that there is uncertainty – hence ineffective?

 

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