Australia: Pre-capital gains tax status can be retained when shares are held through discretionary trust (Administrative Review Tribunal decision)
A case examined whether pre-capital gains tax status can be retained when shares are held through a discretionary trust.
The Administrative Review Tribunal, in XLZH v Commissioner of Taxation [2025] ARTA 2154, considered whether shares held in a discretionary trust (settled before September 20, 1985) lost their pre-capital gains tax (pre-CGT) status due to changes in trust distribution patterns, specifically under Division 149 of the Income Tax Assessment Act 1997 (ITAA 1997).
The tribunal held that changes in trust distribution patterns did not trigger Division 149, meaning the shares retained their pre-CGT status. In other words, the assets were not converted to post-CGT assets simply because of changes in how the trust distributed income or added new beneficiaries.
The Commissioner assessed a capital gain of $64.4 million following the sale of a private company, arguing that the shares ceased to be pre-CGT assets in June 2011 due to a change in "majority underlying interests" under subsection 149-30(1) of the ITAA 1997, as a result of the introduction of a new ultimate object in the discretionary trust.
The taxpayer, a beneficiary of the discretionary trust, successfully argued that ownership could not be traced through a discretionary trust but the section was required to be given purpose or effect in the context of a discretionary trust and as such, it was necessary to go to the “reasonable to assume” test in subsection 149-30(2) of the ITAA 1997 and based on the facts of the case, that assumption was reasonable to make.
The decision has been appealed by the Commissioner.
For more information, contact a KPMG tax professional in Australia:
Samuel Sloane | ssloane1@kpmg.com.au
Craig Jackson | cjackson8@kpmg.com.au
Aylin Harapoz | aharapoz1@kpmg.com.au