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Are asset revaluation reserve distributions 'ordinary income' for discretionary beneficiaries?


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 (Australia). 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 70 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. Professor Freudenberg’s research has analysed whether Australia should introduce a tax flow-through company, the tax treatment of discretionary trusts and the motivation for choice of business structure. His research has also considered the tax issues confronting private enterprises, reforms for enterprises in the arts sector, as well as to facilitate Islamic finance. Professor Freudenberg’s research has informed government policy as he was invited to present his PhD research findings to the Australian Treasury as part of the Henry Tax Review. Also his PhD was awarded the CCH-ATTA Doctoral Prize which saw it published as a book in 2011: Tax Flow-Through Companies. 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). - Current at 17 April 2020
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