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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 [2012] AATA 527 (AAT, Egon Fice SM, 10 August 2012).


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