Commonwealth Consolidated Acts

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INCOME TAX ASSESSMENT ACT 1997 - SECT 727.365

Control (for value shifting purposes) of a non-fixed trust

Trustee tests

             (1)  An entity controls (for value shifting purposes) a * non-fixed trust if:

                     (a)  the entity or an * associate of the entity is a trustee of the trust; or

                     (b)  the entity, or the entity and its * associates between them, can remove or appoint the trustee, or one or more of the trustees, of the trust; or

                     (c)  a trustee of the trust is accustomed to act, is under an obligation (whether formally or informally) to act, or might reasonably be expected to act, in accordance with the directions, instructions or wishes of:

                              (i)  the entity or an * associate of the entity; or

                             (ii)  2 or more entities, at least one of which is the entity or an associate of the entity.

Tests based on control of the trust income or capital

             (2)  An entity also controls (for value shifting purposes) a * non-fixed trust if the entity, or the entity and its * associates between them:

                     (a)  have the power to obtain the beneficial enjoyment of trust income or capital; or

                     (b)  can control in any way at all, whether directly or indirectly, the application of trust income or capital; or

                     (c)  can, under a * scheme, gain the enjoyment or control referred to in paragraph (a) or (b).

             (3)  An entity also controls (for value shifting purposes) a * non-fixed trust if:

                     (a)  the entity, or any of its * associates, can benefit under the trust otherwise than because of a * fixed entitlement to a share of the income or capital of the trust; or

                     (b)  if the entity, or the entity and its * associates between them, have the right to receive (either directly, or indirectly through one or more interposed entities) at least 40% of any distribution of trust income, or trust capital.



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