14 Aug 12 Income was special income of super fund - Ghali
The AAT has held that distributions from a unit trust were special income of a superannuation fund, the trustee of which held units in the unit trust, pursuant to s 273(7) of ITAA 1936.
It did so on the basis that:
the trustee had a vested and indefeasible interest in a share of income of the trust, or of the capital of the trust and therefore had a fixed entitlement to that share, notwithstanding certain discretions vested in the trustee as to distributions of income;
however, the parties were not dealing with each other at arm's length; and
the amount of income derived was greater than might have been expected had the parties been dealing at arm's length.
The Trustee for MH Ghali Superannuation Fund and FCT  AATA 527 (AAT, Egon Fice SM, 10 August 2012).