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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.

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Dr Brett Freudenberg CTA
Photo of author, Brett FREUDENBERG Brett works at the Department of Accounting, Finance and Economics, Griffith Business School, Griffith University. In addition to his taxation teaching, Brett was awarded a PhD for his research into tax transparent companies in the US, the UK and New Zealand, and how Australian closely held businesses may benefit from their introduction. In 2009 Brett was invited to present his PhD research findings to the Australian Treasury as part of the Henry Tax Review. In 2006 Brett received a Fulbright Award, which saw him conducting research at the University of Illinois to analyse the proliferation of new business forms in the United States and their potential application for Australian businesses. Brett has published refereed articles in leading Australian and international tax journals. In addition to his tax expertise, Brett has received a number of teaching accolades, including in 2008 a national teaching citation from the Australian Learning & Teaching Council for his outstanding contributions to student learning. - Current at 25 March 2014
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