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The Federal Court (Logan J) has held that a net capital gain, comprising a trust distribution to which the trustee of a superannuation fund was presently entitled, being "statutory income" within the meaning of s 6-10 of ITAA97, was derived by the trustee as "special income" for the purposes of s 273(6) of ITAA36.

The taxpayer's arguments that the amount had not been "derived" and that the decision of the Full Federal Court in Allen (Trustee), in the matter of Allen's Asphalt Staff Superannuation Fund v FCT [2011] FCAFC 118 (7 September 2011) was distinguishable, were rejected. It was held in the Allen case that s 273 applied to "statutory income".

Logan J said at para 55:

"Where a beneficiary of a trust estate is not under any legal disability and is presently entitled to a share of the income of the trust estate, the effect of s 97 is, materially, that the assessable income of that beneficiary includes so much of that share of the net income of the trust estate as is attributable to a period when that beneficiary is a resident. That is so whether or not that share has been received, applied or dealt with by or on behalf of that beneficiary. It is enough that the beneficiary is presently entitled to that share."

SCCASP Holdings as trustee for the H&R Super Fund v FCT [2012] FCA 1052 (26 September 2012).


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