18.104.22.168 The Source Test
Date of effect
This topic has effect to designated private trusts and designated private companies from 1 January 2002.
Private trusts & private companies
The source test in relation to a controlled private trust and a controlled private company is to be applied where:
- an individual transfers assets (1.1.A.290) to a structure after 7.30 pm 9 May 2000, AND
- the individual did not receive adequate financial consideration (1.1.A.55) for those assets.
Note: HOWEVER, an income support recipient could refer to the source of capital that was placed in a structure before 7.30 pm 9 May 2000, if they wished to demonstrate that attribution was unreasonable.
Explanation: The source test recognises that persons who transfer assets to a structure generally retain some means of control. Taking the origins of the assets into account complements and strengthens the attribution process and circumvents potential avoidance mechanisms.
Example: George, aged 59, has decided to set up a family trust. The assets of the trust will consist of George's investment portfolio and holiday house worth $600,000. The family home worth $150,000 will also be part of the trust assets. He attends an investment seminar in June 2000 and learns that from 1 January 2002 he may be attributed with the assets and income of the trust, which will make him ineligible for Age when he turns 65. He seeks to circumvent the new rules by setting up the trust with his child David as the appointor.
David undertakes to act in accordance with George's wishes and agrees that George will be the unofficial beneficiary of the trust income. While George trusts his child, he decides to keep substantial assets out of the trust. These assets are used as an additional incentive for David to acquiesce i.e. they will eventually become David's if he abides by their agreement. (In fact George could also be considered to be in control via the 'associates' rule).
Under the SOURCE TEST, George will still be attributed with the trust assets and income and would not have an entitlement to pension.
It is not the intention that the source test be absolute. Whether or not a person who has placed assets in an entity is attributed those assets will depend on the circumstances of the case. Where the matter is unclear, issues such as the level of contributions made and whether the person who made the contribution can exhibit control will need to be investigated.
Note: If a person can show that a genuine gift or genuine loan has been made, and that they have no on-going involvement in the structure, attribution would generally not be made to that person.
Act reference: SSAct section 1207Q(3) Controlled private companies - Source test, section 1207V(3) Controlled private trusts - Source test