We often hear people calling a discretionary trust a family trust, but strictly speaking a discretionary trust only becomes a family trust when it makes a family trust election (FTE). So what is an FTE and when should you make it?
What Is A Family Trust Election?
An FTE is an election a discretionary trust makes through the trust’s income tax return. Once the election is made, distributions can only be made to the family members of the ‘test individual’ specified in the election. Below is a diagram from the Australian Taxation Office (ATO) website that demonstrates what members are included in a family group.
When Should You Make an FTE?
There are various scenarios where an FTE should be made and below are some of the common ones.
A. When a trust wishes to recoup prior year tax losses or claim bad debt deductions
If a trust wishes to offset its current year profit with prior year tax losses, vigorous tests must be passed depending on the type of the trust. An ordinary discretionary trust that hasn’t made an FTE must meet all of the following tests which are often quite difficult:
50% stake test
Pattern of distribution test
Control test
Income injection test
A family trust, in contrast only needs to pass the income injection test. By making the election it is also much easier to pass this test as other trusts within the family group can now distribute income into the trust to utilise losses.
This is also the case if a discretionary trust wishes to claim bad debt deductions.
B. When a trust wishes to distribution franking credit to beneficiaries
To prevent dividend stripping, one can only claim franking credits in their tax return if the shares are held ‘at risk’ for at least 45 days. Small investors receiving less than $5,000 in franking credits in a financial year are exempt from this rule.
As straight forward as it sounds, it is effectively impossible for a beneficiary of a discretionary trust to prove that the shares (to which the franking credits are attached) are held ‘at risk’ as no beneficiary of the trust has vested and indefeasible interest in any of the trust assets. A beneficiary of a non-fixed trust can only qualify for the holding period rule if the trust makes an FTE.
C. When a trust is a shareholder of a company and the company needs to pass the same ownership test to recoup tax losses
Generally speaking, for a company to pass the same ownership test and recoup prior year tax losses, the company must look through any interposed companies or trusts to find the natural persons who hold the ultimate interest. However, when a discretionary trust has made an FTE, it is treated as a single notion entity that owns the interest in the company, which means there is no need to trace past the trust.
Note that it is a similar scenario when a discretionary trust is a unit holder of a unit trust that wishes to recoup losses.
Other reasons for making an FTE may include when a discretionary trust receives a distribution from another trust that has made an FTE; when the trust is to be excluded from complying with the trustee beneficiary reporting rules, and when assets are transferred to a trust as part of a small business restructure roll-over.
When Can You Make an FTE?
Any trust can elect to be a family trust if it passes the family control test. At the time of the election, a family member is chosen to be the test individual which defines the family group. Keep in mind that a test individual must be alive when the election is made.
Consequences of Making an FTE
Once an FTE is made, distributions can only be made to persons in the family group of the test individual. Failing to do so will attract family trust distribution tax (FTDT) at the top marginal tax rate plus Medicare levy. Note that reasonable wages and salary paid to employees for work performed are not considered distributions.
Revocation and Variation of an FTE
An FTE can be revoked if it was not required for recouping trust tax losses, claiming bad debt deductions or accessing franking credits.
Generally speaking, an FTE revocation can only be made within four years since the income year that was specified in the original election. And it is usually lodged with the trust tax return.
A new FTE cannot be made again once revoked.
The test individual can also be varied once and once only provided both conditions listed below are satisfied:
The new test individual is a family member of the original test individual at the commencement of the election
There has been no distribution to parties outside the new test individual’s family group since the election has been in force
The test individual can also be varied if as a result of a court order arising from a relationship breakdown, the control of the family trust passes to a different family member.
Again, an FTE variation can only be made within four years since the income year that was specified in the original election and is usually lodged with the trust tax return.
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