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The accounting industry gives the final s100A ruling a cautious thumbs up

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According to CA ANZ, TR 2022/4 could be “like having the ATO at the dinner table”, but most find it “significantly improved”.ATO’s final s100A ruling has been welcomed by accounting bodies and tax professionals.It was developed to assist trustees and their accountants, according to ATO deputy commissioner Louise Clarke, and the initial reaction from the industry was positive.According to Robyn Jacobson, senior advocate at the Tax Institute, “the finalised guidance materials on section 100A are a significant improvement from the draft materials released in February.”

“They provide a clearer and more comprehensive interpretation of section 100A and the ATO’s compliance approach.”The term “ordinary” used in the ruling, however, concerned her.According to Ms Jacobson, Section 100A contains an exception for arrangements entered into in the course of ordinary commercial or family dealings.Among the factors that determine what is ordinary are cultural, familial, and personal influences.We need to replace this term in section 100A with a more appropriate term after consulting with the broader tax community.”Elinor Kasapidis, CPA Australia’s senior manager of tax policy, said accountants now had to ensure their practices were in compliance with the determination.

“We are pleased the ATO has finalised its guidance on s100A,” she said. “Practices should ensure they are in line with the guidance and ensure their practices are appropriate.”

“The ATO wants to ensure beneficiaries receive the benefit of the distribution, so practitioners may wish to encourage their clients to seek specialist advice from a lawyer.”

According to CA ANZ’s tax leader Michael Croker, the guidance aims to clarify when, why, and how trust funds are applied, rather than paid to beneficiaries.

“The ATO has developed a colour-coded list of risk scenarios – green indicates that you are safe from ATO scrutiny, while red indicates that you may be in trouble if they investigate,” he said.


It will be like having the ATO at the kitchen table to understand whether allocations of trust funds are subject to an anti-avoidance measure called s100A.”

It is not an option to ignore ATO compliance activity, according to Tony Greco, IPA general manager of technical policy.

As a result of the publicity surrounding s100A, this once obscure, little understood anti-avoidance provision has been given so much attention that all professionals who assist clients with trust distributions are now aware of the implications of s100A, particularly if the beneficiary does not receive any benefit from the distribution.

“If practitioners wish to avoid ATO compliance activity, they should heed the current advice and stay within the PCG green zone when advising on distributions from family trusts.”

National Tax and Accountants Association applauded the ATO for softening its stance on retrospective application of the guidelines and taking feedback into account.According to Andrew Gardiner, NTAA spokesman and senior tax manager, it is pleasing that the ATO has adapted its compliance approach in response to feedback provided during the consultation process.We appreciate that s100A is a complex provision to administer. As a result, we are pleased that these finalised guidelines recognise more practical arrangements for family trusts.”In addition, the tax office reassured the community that it would not retroactively change its view of how the law works and would stand by its previous guidance for arrangements entered between July 1, 2014 and June 30, 2022.In most cases, S100A would only apply four years after a trustee files their tax return, and it would not review arrangements prior to 1 July 2014 unless there were exceptional circumstances.


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