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For many discretionary trusts, via 30 June every monetary yr the trustee will have to make a decision to which beneficiaries the source of revenue of the believe might be dispensed.

In lots of scenarios, the verdict as to which beneficiaries obtain source of revenue, and what forms of source of revenue, is pushed via the entire tax result for the circle of relatives or circle of relatives workforce. Purchasers know this. Accountants know this. The ATO is aware of this. It’s only an accredited truth of Australian small industry and circle of relatives funding lifestyles.

However can the verdict of a trustee to make distributions to beneficiaries in probably the most tax efficient approach be a “scheme” to which the overall anti-avoidance provision of the tax regulation (Phase IVA ITAA 1936) practice? If this is the case, the Tax Workplace is allowed to reconstruct what came about into a suite of occasions (that didn’t happen) that may lead to extra tax payable.

Minerva Monetary Staff case

This factor has been raised via the Federal Court docket choice in Minerva Monetary Staff Pty Ltd v Commissioner of Taxation [2022] FCA 1092, passed down on 16 September 2022.

The taxpayer misplaced the case as a result of Phase IVA used to be implemented via the Commissioner, effectively, to the verdict of a trustee to distribute just a small proportion of its source of revenue to a specific beneficiary. This ended in much less tax being paid when in comparison to the tax that may have been paid underneath the Commissioner’s view of what would have came about if the “scheme” had now not been entered into. Necessarily, so it used to be held, source of revenue of a bunch used to be taxed at a withholding tax charge of 10 in step with cent when it might had been taxed at a company charge of 30 in step with cent if the trustee had exercised its discretion to make the taxpayer corporate entitled to the source of revenue.

Will have to accountants be fearful concerning the choice within the Minerva Monetary Staff case? Will the Commissioner start to aggressively assault the loads of 1000’s of trustee choices made every yr that obviously have the aim of saving tax for a circle of relatives workforce? I feel now not, however with some caveats.

Components of Phase IVA

For Phase IVA to use, 4 components are required:

  1. There will have to be a “scheme”
  2. There will have to be a “tax receive advantages”
  3. It will have to be concluded, objectively, that the scheme used to be entered into with the only real or dominant objective of acquiring the tax receive advantages
  4. The Commissioner will have to make a decision to use Phase IVA

If a trustee comes to a decision to distribute $10,000 to a beneficiary who has no different source of revenue and there are different beneficiaries of the believe which might be at the most sensible marginal tax charge, there’s no escaping the realization that Phase IVA will have doable utility if this used to be finished to save lots of tax for the circle of relatives.

Because of the extraordinarily vast definition of “scheme” within the regulation it’s nearly not possible to not have a scheme. The verdict via the trustee would obviously be a “scheme”.

Is there a tax receive advantages? Sure, the non-inclusion of the $10,000 within the assessable source of revenue of the beneficiaries at the most sensible marginal charge, could be a “tax receive advantages”.

May just it’s objectively concluded that the distribution of the $10,000 to the taxpayer and not using a different source of revenue, versus different beneficiaries at the most sensible marginal charge, has been finished to procure the tax receive advantages? Very most likely, sure.

So, what stops Phase IVA making use of? It’s the ultimate part within the necessities — the Commissioner will have to make a decision to use Phase IVA — and this is the reason I don’t suppose accountants want worry any vital adversarial ramifications from the Minerva Monetary Staff choice.

The Commissioner “would possibly”

The important thing operative provision of Phase IVA (segment 177F) commences via pronouncing:

“The place this Phase applies to a scheme in reference to which a tax receive advantages has been got, or would however for this segment be got, the Commissioner would possibly …” (emphasis added).

The purpose here’s that the reconstructing of the taxable source of revenue of affected taxpayers underneath the provisions of Phase IVA is on the possibility of the Commissioner. That is other from maximum different anti-avoidance provisions which might be self-actuating (for instance, segment 100A ITAA 1936). The Commissioner is allowed to not put into effect the operative provision in Phase IVA. Some years in the past, I used to be informed via an individual concerned with the drafting of Phase IVA that this used to be incorporated within the wording of the regulation as a safeguard towards accidental penalties of the availability making use of.

It’s my proposition that the Commissioner has now not up to now, and won’t one day, select to use Phase IVA to straightforward circle of relatives believe distribution choices despite the fact that they could also be only motivated from a tax viewpoint. In fact, It’s not that i am the Commissioner and can’t say for positive what he’ll or received’t do. On the other hand, if the Commissioner now made up our minds at the energy of the Minerva Monetary Staff choice to start out making use of Phase IVA to the loads of 1000’s of trustee choices made every yr, there could be an uproar from the small industry group that might be obviously heard within the halls of federal parliament.

It must even be favored that the Minerva Monetary Staff case used to be a “large finish of the city” factor involving a big amount of cash and didn’t contain a standard circle of relatives workforce working a small industry or investments via a circle of relatives believe.

Phase 100A — Phase IVA for trusts?

Quite than depend at the difficulties of making use of Phase IVA, it may well be argued (and I’ve prompt this in quite a lot of boards) that the present stance of the Tax Workplace in regards to segment 100A signifies the Commissioner would possibly now imagine segment 100A because the “new” Phase IVA for trusts. In fact, tax aficionados, will right away inform me that they’re other provisions with other goals — and that, after all, is right. On the other hand, I wonder whether the ATO has, in its personal considering, made up our minds to make use of segment 100A as the important thing manner of “assault” on discretionary trusts scenarios that the ATO doesn’t like moderately than run the gauntlet with the harder to use Phase IVA.


On the time of writing, it isn’t identified if the taxpayer within the Minerva Monetary Staff case will attraction towards the verdict of the Federal Court docket. If the taxpayer does now not attraction towards the verdict, we must learn, with a lot hobby, the ATO’s Choice Affect Remark at the Minerva Monetary Staff case to look whether or not there’s any trace of the ATO widening the usage of Phase IVA to standard discretionary believe distribution choices.

John Jeffreys is the director of John Jeffreys Tax Pty Ltd.



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