The Taxation Determination TD 2022/11 is due to be issued by the Australian Taxation Office (ATO) on 13 July 2022: Income tax: Division 7A: when will an unpaid present entitlement or amount held on sub-trust become the provision of 'financial accommodation'?
What is TD 2022/11 about?
The Determination describes when a private company provides financial accommodation within the meaning of section 109D of the Income Tax Assessment Act 1936 (ITAA 1936) where that company is made presently entitled to the income of a trust and either:
that entitlement remains unpaid (an unpaid present entitlement 'UPE'); or
the trustee sets aside an amount from the main trust and holds it on a new separate trust (sub-trust) for the private company beneficiary.
Why is the ATO issuing TD 2022/11?
This Determination clarifies the ATO's compliance approach, with practical examples, on how to meet the timing requirements to ensure that an unpaid present entitlement or amount held on sub-trust does not cause a deemed dividend to arise under Division 7A of Part III of the ITAA 1936 via implementation of complying loan agreements.
How does this affect previous ATO guidance?
As a consequence of the ATO issuing TD 2022/11 the following were withdrawn by the ATO with effect from 1 July 2022:
Taxation Ruling TR 2010/3 Income tax: Division 7A loans: trust entitlements; and
Law Administration Practice Statement PS LA 2010/4 Division 7A: trust entitlements.
TD 2022/11 provides that, for trust entitlements arising on or before 30 June 2022, the Commissioner will not devote compliance resources to those sub-trust arrangements that correspond to the guidance in TR 2010/3 and PS LA 2010/4.
This includes arrangements that commence on or after 1 July 2022 in respect of a trust entitlement arising on or before 30 June 2022.