Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) For the purposes of this Part, a trust is a concessional primary production trust in relation to an individual at a particular time (the test time ), if:
(a) at the test time, the trust is a controlled private trust in relation to the individual; and
(i) the trust carries on a primary production enterprise (the first primary production enterprise ); or
(ii) the trust makes an asset available to another entity, the other entity carries on a primary production enterprise (the first primary production enterprise ), and the asset is used by the other entity wholly or principally for the purposes of carrying on the first primary production enterprise; and
(c) at the test time, more than 70% of the net value of the assets of the trust (excluding the net value of the principal home of the individual if that principal home is owned by the trust) relates to assets used wholly or principally for the purposes of carrying on a primary production enterprise; and
(d) at the test time, the sum of:
(i) the total adjusted net value of assets that are owned or controlled by the individual and used wholly or principally for the purposes of carrying on a primary production enterprise; and
(ii) the total adjusted net value of assets that are owned or controlled by the individual's spouse and used wholly or principally for the purposes of carrying on a primary production enterprise;
is less than the primary production attribution threshold (as defined by subsection (6)); and
(i) the individual or the individual's spouse had adjusted net primary production income for the last tax year that ended before the test time; and
(ii) the individual or the individual's spouse had adjusted net primary production income for the tax year that preceded the tax year first referred to in subparagraph (i); and
(iii) the individual or the individual's spouse had adjusted net primary production income for the tax year that preceded the tax year first referred to in subparagraph (ii);
the average of the following amounts is less than the amount specified in clause 38N of Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (subject to any indexation under Schedule 4 to that Act):
(iv) the total adjusted net primary production income of the individual and the individual's spouse for the tax year referred to in subparagraph (i);
(v) the total adjusted net primary production income of the individual and the individual's spouse for the tax year first referred to in subparagraph (ii);
(vi) the total adjusted net primary production income of the individual and the individual's spouse for the tax year first referred to in subparagraph (iii); and
(i) neither the individual nor the individual's spouse had adjusted net primary production income for the last tax year that ended before the test time; or
(ii) neither the individual nor the individual's spouse had adjusted net primary production income for the tax year that preceded the tax year referred to in subparagraph (i); or
(iii) neither the individual nor the individual's spouse had adjusted net primary production income for the tax year that preceded the tax year referred to in subparagraph (ii);
the Secretary, by writing, determines that this paragraph applies to the individual and the trust; and
(g) at the test time, the individual is not actively involved with the first primary production enterprise; and
(h) at the test time, an eligible descendant of the individual is actively involved with the first primary production enterprise; and
(i) if, at the test time, the individual is able to appoint the trustee, or any of the trustees, of the trust--there is a provision of the trust deed to the effect that that ability may only be exercised:
(i) if the trustee concerned dies, resigns or becomes subject to a legal disability; or
(ii) in accordance with a statutory law relating to the appointment of trustees; and
(j) if, at the test time, the individual is able to veto or direct the decisions of the trustee--there is a provision of the trust deed to the effect that that ability may only be exercised:
(i) in relation to the sale of land used for the purposes of carrying on the first primary production enterprise; or
(ii) in relation to the sale of fishing rights or timber rights used for the purposes of carrying on the first primary production enterprise; or
(iii) in accordance with a statutory law relating to the appointment of trustees; and
(k) at the test time, there is a provision of the trust deed to the effect that neither the individual, nor the individual's spouse, is, or is capable of becoming, the trustee, or any of the trustees, of the trust; and
(l) at the test time, a group in relation to the individual is not able to vary a provision covered by paragraph (i), (j) or (k); and
(m) at the test time, neither the individual, nor the individual's spouse, is able to vary the trust deed; and
(n) at the test time, neither the individual, nor the individual's spouse:
(i) benefits or is capable (whether by the exercise of a power of appointment or otherwise) of benefiting under the trust, either directly or through any interposed companies, business partnerships or trusts; or
(ii) receives any remuneration or other benefits from the trust otherwise than in the capacity of beneficiary of the trust.
(2) For the purposes of the application of paragraphs (1)(e) and (f) to a particular tax year, a person is the individual's spouse if, and only if:
(a) the person was the spouse of the individual at any time during the tax year; and
(b) the person is the spouse of the individual at the test time.
(3) In making a determination under paragraph (1)(f), the Secretary must comply with any relevant decision - making principles.
(3A) For the purposes of paragraph (1)(h), an eligible descendant , in relation to a person, is:
(a) a child, step - child or adopted child of the person or of a partner of the person; or
(b) a descendant in direct line of a child described in paragraph (a); or
(c) any other person who, in the opinion of the Secretary, should be treated for the purposes of this definition as a person described in paragraph (a) or (b).
(4) Paragraph (1)(n) does not apply to any of the following benefits:
(i) is derived from the first primary production enterprise; and
(ii) is for the personal consumption of the individual or the individual's spouse;
(b) residential accommodation for the individual or the individual's spouse, where that accommodation is the principal home of the individual;
(c) if paragraph (b) applies--water, fuel, gas or electricity for use in that residential accommodation;
(d) any other non - cash benefit that is minor and provided on a basis that is infrequent and irregular.
(5) Subparagraph (1)(n)(ii) has effect subject to section 1208V.
(6) For the purposes of this section, the primary production attribution threshold is $750,000.
(7) A reference in this section to a group in relation to an individual is a reference to:
(a) the individual acting alone; or
(b) an associate of the individual acting alone; or
(c) the individual and one or more associates of the individual acting together; or
(d) 2 or more associates of the individual acting together.